Tuesday, February 17, 2015

Would you urge out-going (and apparently corrupt) Oregon Gov Kitzhaber to commute all death sentences?

The question in the title of this post is prompted by this notable new commentary authored by Frank Thompson, a retired assistant director of institutions and superintendent of the Oregon State Penitentiary.  Here are excerpts:

I know what it is like to execute someone. I am a retired prison superintendent who conducted the only two executions that have taken place in Oregon in the past 53 years.

The death penalty in Oregon comes at a high cost to our state in both human and fiscal resources.  I call on Gov. Kitzhaber to convert 35 death sentences to life without the possibility of release before he leaves office at mid-morning on Wednesday.

Based on my experiences as a correctional professional, capital punishment is a failed public policy — especially in Oregon where we have funded a death penalty system for over 30 years, yet only put to death two inmates who volunteered themselves for execution by abandoning their appeals. No other corrections program exemplifies such a complete failure rate.

During my more than two decades of running correctional facilities, I saw the population of those who are capable of extreme violence up close. I have no doubts at all that these offenders did not think about the death penalty for one second before committing their violent acts. Instead, research has been shown that public safety is greatly improved when our limited tax dollars are redirected to law enforcement agencies to solve cases and prevent crimes.

I understand exactly what is being asked of public employees whose jobs include carrying out the lawful orders of the judiciary to end another person's life.  The burden weighs especially heavily on my conscience because I know firsthand that the death penalty is not applied fairly or equally in Oregon.  I have known hundreds of inmates who are guilty of similar crimes yet did not get the death penalty because they reached a plea bargain of life without parole simply because they had the means for professional legal assistance.

I also understand, from my experiences in corrections, the potential awful and lifelong repercussions that can come from participating in the execution of prisoners.  Living with the nightmares is something that some of us experience.  This is particularly the case with those of us who have had more hands-on experience with the flawed capital punishment process, and/or where an execution under our supervision did not go smoothly.

I am never troubled when people make a forceful argument that "capital punishment is a failed public policy."  But I find it troubling that this argument is being made now to a disgraced (apparently corrupt) out-going governor rather than to the new incoming governor and other public-policy officials who are going to be staying in their jobs and would need to deal with the administrative and political implications and consequences of their actions.

Notably, it is not just Oregonians urging out-going Gov Kitzhaber to clear the state's death row.  Professors Charles Ogletree and Rob Smith have this new Huffington Post commentary headlined "Gov. Kitzhaber: Your Job Is Not Yet Done." here is how it concludes:

Governor Kitzhaber declared a moratorium on the death penalty back in 2011. He labeled the State's practice of imposing death sentences "neither fair nor just" and concluded that a "compromised and inequitable" capital punishment system is not befitting of Oregon. Nothing has changed and nothing will: the death penalty in Oregon is too broken to fix.

In his resignation letter, Governor Kitzhaber told us that he was proud to not have presided over any executions. Yet, as Governor, he presided over a state that has sentenced people to death under the same unjust system that led him to impose the moratorium. The Governor has the power to leave the troubled history of this disreputable death penalty system in Oregon's rearview mirror; and doing so would enhance the integrity of the criminal justice system without compromising public safety.

Governor Kitzhaber: You lit the torch in 2011; and now, in these few remaining hours, please carry that torch across the finish line.

February 17, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

NY Times editorial laments "The Roadblock to Sentencing Reform" ... while creating another

This lengthy new New York Times editorial spotlights and laments that one powerful Senator now appears to be the main impediment to federal sentencing reform moving forward in Congress.  Here are excerpts:  

For more than a year, members of Congress have been doing a lot of talking about the need to broadly reform harsh federal sentencing laws, which are a central factor in the explosion of the federal prison population.  It’s an overdue conversation, and one of the few in which Democrats and Republicans find some agreement — but, so far, they have nothing to show for it.

In the last session, senators introduced three bipartisan bills.  Two proposed “front end” reforms, like reducing or eliminating ridiculously long mandatory minimum sentences for some drug crimes.  The other focused on “back end” fixes, like increasing opportunities for good-­time credit to allow certain prisoners early release.

None of the bills got anywhere, but it was encouraging to see all three reintroduced in the new Republican­-led Senate. At least it was until they ran into a roadblock in the shape of Senator Charles Grassley, Republican of Iowa.  Mr. Grassley, the chairman of the Judiciary Committee, wields great power over any sentencing legislation....

Mr. Grassley, for reasons that defy basic fairness and empirical data, has remained an opponent of almost any reduction of those sentences.  In a speech from the Senate floor this month, he called the bills “lenient and, frankly, dangerous,” and he raised the specter of high-­level drug traffickers spilling onto the streets.

Mr. Grassley is as mistaken as he is powerful.  Mandatory minimums have, in fact, been used to punish many lower­-level offenders who were not their intended targets. Meanwhile, the persistent fantasy that locking up more people leads to less crime continues to be debunked.  States from California to New York to Texas have reduced prison populations and crime rates at the same time. A report released last week by the Brennan Center for Justice found that since 2000 putting more people behind bars has had essentially no effect on the national crime rate.

The bill that appears to have the best chance of passing anytime soon is known as the Corrections Act — that’s actually a sprawling acronym for Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers in Our National System. Co­sponsored by Senator John Cornyn, Republican of Texas, and Senator Sheldon Whitehouse, Democrat of Rhode Island, the bill’s name is more ambitious than its goals, which include giving a narrow group of inmates the chance to participate in educational and other programs in exchange for earlier release. (The bill authorizes no financing for these programs, relying instead on, among other things, the volunteer efforts of faith­-based groups.)

Rehabilitation is a laudable aim, and it should be a part of any sentencing reform package. But the Cornyn-­Whitehouse bill would exclude nearly half of all federal prisoners — in many cases without any evidence that they pose a greater risk to public safety.

The bill also relies on an inmate’s criminal history.  This is a legitimate measure when it is used with the awareness that law enforcement disproportionately targets minorities. The danger is that white-­collar prisoners, who are most often white, will receive the law’s benefits, while, say, drug offenders, who are disproportionately African­-American, will be left out.

Finally, the bill pushes the use of data­-based risk­-assessment tools, which sound smart but again — because they rely on factors like a person’s employment history, neighborhood and education level — often have racially disproportionate effects....

Sentencing reform is a big and complicated issue, and may take some time to get right.  It would be a mistake to pass an incomplete bill and pretend that the hard work of reform is done.

Though I obviously laud the New York Times editorial board for complaining about a "roadblock" to reform created by Senator Grassley, I am troubled that this editorial goes on to create some more hurdles of its own through its (somewhat chaotic) criticisms of the Corrections Act. Every possible sentencing reform bill is sure to be an "incomplete bill" from somebody's perspective, but that should never serve alone as a reason to stall any needed reforms. The Fair Sentencing Act passed in 2010 was incomplete for only partially reducing the crack/powder disparity and for failing to make its reforms retroactive. But that reform still achieved a lot even though it did not achieve enough. Same goes, in my opinion, for all the sentencing reform bills now making the rounds.

Moreover, as a matter of substance, this editorial hammers Senator Grassley for defiance of empirical data, but that assails the Corrections Act for incorporating "data­-based risk­-assessment tools" and criminal history in its structures for back-end reform.  I fear the NYT editorial board wants policy-makers to be concerned only with the public safety data that it likes and to ignore the public-safety data that might undermine the Grey Lady's own mysterious sense of "fairness."  In this way, this editorial provides still more support for roadblocks to reform because any and everyone concerned about any part of the reform bills are encouraged to let their vision of the best reforms serve as an enemy and hurdle for any and all good and needed reforms.  

February 17, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, February 16, 2015

Feds assert, despite reversal of hate crime convictions, Amish beard-cutters should get same sentences

As reported in this AP piece, headlined "Federal prosecutors want same sentences in Amish beard-cutting case when they are resentenced," the feds are claiming that the reversal on appeal of the most-serious charges against a group of Amish defendants (details here) should not impact their sentence one whit.  Here are the details:

Sixteen Amish men and women whose hate crime convictions in beard- and hair-cutting attacks were overturned still should receive the same sentences, federal prosecutors told a judge who will resentence the group.

The members of the eastern Ohio Amish group are scheduled to be resentenced March 2 after the 6th U.S. Circuit Court of Appeals overturned only their hate crimes convictions. New sentences are required because the original sentences were based both on hate crimes convictions and convictions on other charges but did not differentiate between them.

The attacks were in apparent retaliation against Amish who had defied or denounced the authoritarian style of Sam Mullet Sr., leader of the Bergholz community in eastern Ohio. The U.S. Attorney's Office, in a court filing on Friday, said Mullet should be resentenced to 15 years for concealing evidence and making false statements to the FBI. Both of those charges were not overturned.

The other defendants should also be given the same lesser sentences. Those defendants who have already been released should be sentenced to time served, the prosecutors said.

Prosecutors argued that the conduct that led to the hate crime charges, which included kidnapping, should still be considered even if the defendants are no longer convicted of a hate crime.

Defense attorneys are expected to file their response next week.

I am neither surprised or troubled that the feds want the same sentences imposed on the less culpable defendants who have already finished serving their prison time. But I struggle to see how urging the same exact sentence for Sam Mullet Sr. despite reversal of the most serious convictions against him serves to "promote respect for the law" as 18 USC 3553(a)(2)(A) requires.

Related prior posts:

February 16, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, February 15, 2015

"Procedural Proportionality"

The title of this post is the title of this notable new paper by William Berry III now available via SSRN. Here is the abstract:

Given the Supreme Court’s recent foray into applying the Eighth Amendment to non-capital cases combined with its long history of applying procedural restrictions at sentencing in death cases, this Article argues for the application of procedural due process principles to criminal sentencing under the Eighth Amendment.  Specifically, the Article develops the concept of procedural proportionality, which contemplates a relationship between the extent of the deprivation and the amount of procedure required.

Part I of the Article explains the procedural components of the cruel and unusual punishment clause and explores the expansion of these principles to non-capital cases.  Part II of the Article articulates the theory of procedural proportionality, describing the procedural rights needed at sentencing and outlining a sliding scale for its application.

February 15, 2015 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, February 12, 2015

Spotlighting the administrative challenges posed by high-profile capital cases

This New York Times article, headlined "Jury Pool for Trial in Aurora Shooting Is Pressed on Death Penalty," highlights the various administrative difficulties a high-profile capital case formally gets underway in Colorado.  Here are excerpts:

Lawyers on Wednesday began questioning potential jurors for the trial of the man accused of killing 12 people and wounding 70 during a showing of a Batman film in a packed Colorado movie theater in 2012.

The defendant, James E. Holmes, has pleaded not guilty by reason of insanity, though his lawyers admit he was the gunman. The district attorney is seeking the death penalty, and prosecutors and defense lawyers focused most of their questioning on how prospective jurors feel about that sentence....

Officials sent jury summonses to 9,000 people here — a number that dwarfs even the 1,300 or so potential jurors who filled out questionnaires in the trial of the man accused in the Boston Marathon bombings. The pool of potential jurors has since been whittled to about 2,000. Questioning of those people is expected to take 16 weeks, during which the pool will be reduced to 120, who will receive further questioning, and finally to 12 jurors and 12 alternates.

The trial, to be held in this Denver suburb, could last from early spring to October, with testimony expected from police officers, crime scene experts, witnesses and mental health experts. The shooting took place July 20, 2012, at a movie theater in the Denver suburb of Aurora, where about 400 people were attending a screening of “The Dark Knight Rises.”... 

Two and a half years later, the effects of the massacre continue to ripple through the region, with victims and their families grappling with depression and post­traumatic stress disorder and divided over the prosecution’s decision to seek the death penalty. Some have argued that it is the only way to ensure justice; others have said it will cause years of appeals, an excruciating prospect for those seeking a degree of closure.

Recent and older related posts (with lots of comments):

February 12, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, February 11, 2015

District Judge, to chagrin of feds, relies on jury poll to give minimum sentence to child porn downloader

This fascinating story from the federal courts in the Northern District of Ohio provides an interesting perspective on the input and impact that juries can have in the federal sentencing process in at least one courtroom. The piece is headlined "Cleveland federal judge's five-year sentence in child porn case frustrates prosecutor," and here are excerpts:

A federal judge in Cleveland sentenced a Dalton man convicted of child pornography charges Tuesday to five years in prison, a move that frustrated prosecutors who pushed for four times that length based, at least in part, on a recommendation from the U.S. probation office.

A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.

Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.

Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.

But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge. The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.

In addition to citing the juror's various jobs and where they lived, Gwin said the poll "does reflect how off the mark the federal sentencing guidelines are." He later added that the case was not worse than most of the child pornography cases that he sees and that five years "is a significant sentence, especially for somebody who has not offended in the past."

Sullivan objected to the sentence, saying it is based on an "impermissible" survey. He also argued before the sentence was issued that 20 years was justified because prosecutors did not show the jury each one of the images found on Collins' computer. Gwin rejected that argument, though, explaining that all of the photos were presented as evidence, even if they were not shown at trial.

Under federal law, either prosecutors or defense attorneys can appeal a sentence if they feel it was improper. It is uncommon for federal judges to issue sentences that go so far below the probation office's recommendations, though, so appeals by prosecutors are rare. Mike Tobin, a spokesman for the U.S. Attorney's Office, said that prosecutors "will review the judge's sentence and make a decision at the appropriate time."...

Iams also said that even though his client was convicted by a jury, the fact that he went to trial may have helped Collins in the end, since Gwin was then able to poll the jury and get an idea of where the community's feelings were on sentencing. "If he had just pled guilty, that might have not been there. At the end of the day, it may have helped," Iams said.

Collins was taken into custody following his sentencing. In addition to the prison sentence, Collins was also ordered to pay a $5,000 fine and $10,000 in restitution to two girls seen in the pornography Collins downloaded. Once he is released, he will have to register as a sex offender and will be on supervised release for five years.

February 11, 2015 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Ohio Supreme Court finds multiple constitution flaws in mandatory sex offender sentencing process

The Ohio Supreme Court this morning handed down an interesting constitutional ruling in Ohio v. Bevly, No. 2015-Ohio-475 (Feb. 11, 2015) (available here), striking down a distinctive mandatory sentencing provision for certain sex offenders.  Here is how the majority opinion concludes: 

We hold that because there is no rational basis for the provision in R.C. 2907.05(C)(2)(a) that requires a mandatory prison term for a defendant convicted of gross sexual imposition when the state has produced evidence corroborating the crime, the statute violates the due-process protections of the Fifth and Fourteenth Amendments to the United States Constitution.  Furthermore, because a finding of the existence of corroborating evidence pursuant to R.C. 2907.05(C)(2)(a) is an element that must be found by a jury, we hold that the application of R.C. 2907.05(C)(2)(a) in this case violated Bevly’s right to trial by jury found in the Sixth and Fourteenth Amendments of the United States Constitution.  We reverse the judgment of the court of appeals, and we remand the case to the trial court for imposition of its sentence in accordance with this opinion.

Justice French dissents in an opinion which explains why she thinks the there is rational basis for the sentencing provision struck down by the majority:

When its victims are younger than 13, the crime of gross sexual imposition (“GSI”) carries a mandatory prison term, as opposed to a presumption of prison, so long as “[e]vidence other than the testimony of the victim was admitted in the case corroborating the violation.” R.C. 2907.05(C)(2)(a). I cannot agree with the majority’s conclusion that this corroboration provision simultaneously violates due process, equal protection, and the right to a jury trial. Therefore, I respectfully dissent....

The General Assembly rationally could have concluded that it is unwise or unfair to categorically mandate prison for every person guilty of GSI against a child victim and that more sentencing discretion is appropriate in cases when no evidence corroborated the child victim’s testimony. By reserving the mandatory term (and the associated costs and resources) for convictions with the most evidence of guilt, the General Assembly has made a policy determination that corroboration is relevant to the punishment for child GSI convictions. As the court of appeals recognized in unanimously upholding the statute, “It seems obvious that the General Assembly felt that it was better to start out with a sentence that was not required to be mandatory and to make the sentence mandatory only if there is corroborative proof beyond the alleged victim's testimony that the crime was actually committed.” 2013-Ohio-1352, ¶ 9.

 

Off the top of my head, I cannot think of another sentencing provision in Ohio or anywhere else that a court has found unconstitutional based on rational basis review. Notably, the Bevly opinion indicates in a footnote that it addresses only the defendants federal constitutional claims because "the state constitutional challenges were not raised at the trial or appellate levels." That means the state of Ohio might reasonably try to a press an appeal to the US Supreme Court. It will be interesting to see if it will.

February 11, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

"Incarceration’s Front Door: The Misuse of Jails in America"

Incarcerations-front-door-infographicThe title of this post is the title of this notable new report produced by the Vera Institute of Justice. This New York Times article, headlined "Jails Have Become Warehouses for the Poor, Ill and Addicted, a Report Says," provides a helpful summary of and context for this report:

Jails across the country have become vast warehouses made up primarily of people too poor to post bail or too ill with mental health or drug problems to adequately care for themselves, according to a report issued Wednesday.

The study, “Incarceration’s Front Door: The Misuse of Jails in America,” found that the majority of those incarcerated in local and county jails are there for minor violations, including driving with suspended licenses, shoplifting or evading subway fares, and have been jailed for longer periods of time over the past 30 years because they are unable to pay court­imposed costs.

The report, by the Vera Institute of Justice, comes at a time of increased attention to mass incarceration policies that have swelled prison and jail populations around the country. This week in Missouri, where the fatal shooting of an unarmed black man by a white police officer stirred months of racial tension last year in the town of Ferguson, 15 people sued that city and another suburb, Jennings, alleging that the cities created an unconstitutional modern­day debtors’ prison, putting impoverished people behind bars in overcrowded, unlawful and unsanitary conditions.

While most reform efforts, including early releases and the elimination of some minimum mandatory sentences, have been focused on state and federal prisons, the report found that the disparate rules that apply to jails is also in need of reform.

“It’s an important moment to take a look at our use of jails,” said Nancy Fishman, the project director of the Vera Institute’s Center on Sentencing and Corrections and an author of the report. “It’s a huge burden on taxpayers, on our communities, and we need to decide if this is how we want to spend our resources.”

The number of people housed in jails on any given day in the country has increased from 224,000 in 1983 to 731,000 in 2013 — nearly equal to the population of Charlotte, N.C. — even as violent crime nationally has fallen by nearly 50 percent and property crime has dropped by more than 40 percent from its peak.

Inmates have subsequently been spending more time in jail awaiting trial, in part because of the growing reluctance of judges to free suspects on their own recognizance pending trial dates, which had once been common for minor offenses.  As a result, many of those accused of misdemeanors — who are often poor — are unable to pay bail as low as $500.

Timed with the release of the Vera Institute report, the MacArthur Foundation announced Wednesday that it would invest $75 million over five years in 20 jurisdictions that are seeking alternatives to sending large numbers of people to jail.  The jurisdictions, which could be cities, counties or other entities that run local jails, will be announced this spring.  Nationwide, the annual number of jail admissions is 19 times higher than the number of those sent to prison, and has nearly doubled since 1983, from about 6 million to 11.7 million. A significant number are repeat offenders, the report said.

Via this link, the Vera Institute has available the full Incarceration’s Front Door report, a helpful summary and the infographic I have tried to reproduce here.

February 11, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Tuesday, February 10, 2015

Two notable Second Circuit opinions upholding aggravated sentencing decisions

A helpful reader alerted me to two Second Circuit sentencing decisions handed down this morning. Though neither seems all that ground-breaking, both still strike me a blogworthy.  Here are links to the rulings along with an excerpt from the start of the opinions:

United States v. Morrison, No. 14-485 (2d Cir. Feb. 10, 2015) (available here):

Defendant-Appellant Shane Morrison appeals from a February 6, 2014 judgment of the United States District Court for the Eastern District of New York (Wexler, J.) sentencing Morrison to, inter alia, eighteen months’ imprisonment following his guilty plea to one count of conspiracy to distribute cocaine.  Morrison argues that 18 U.S.C. § 3153(c) bars the district court’s reliance on positive results on drug tests administered by the Pretrial Services Agency (“pretrial services”) to enhance his term of imprisonment.  Because the district court did not violate § 3153(c) by relying on the information from pretrial services in determining Morrison’s sentence, we affirm the judgment.

United States v. Cramer, No. 14-761 (2d Cir. Feb. 10, 2015) (available here):

Defendant Thomas Cramer appeals from a judgment of conviction and sentence of 360 months’ imprisonment and 15 years of supervised release, entered on February 21, 2014 by the U.S. District Court for the Western District of New York (Geraci, J.), following his guilty plea to four counts of sex trafficking of a minor in violation of 18 U.S.C. § 1591(a)(1) and (b)(2). On appeal, Cramer argues that his sentence was procedurally unreasonable because he received a two-point enhancement under U.S. Sentencing Guidelines Manual  section 2G1.3(b)(3) for use of a computer in the commission of the crimes.  This case presents two issues of first impression in this Circuit: First, does the computer-use enhancement under Guidelines subsection 2G1.3(b)(3)(A) apply to a defendant who begins communicating and establishing a relationship with a minor by computer, but then entices the victim through other modes of communication? Second, is Application Note 4 to Guidelines section 2G1.3 plainly inconsistent with subsection 2G1.3(b)(3)(B) and therefore inapplicable to that subsection? We answer both questions in the affirmative.

February 10, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Sunday, February 08, 2015

Highlighting the role of prosecutorial activity in modern mass incarceration

Images (3)I am pleased to see this new Slate piece giving attention to Professor John Pfaff's important and effective analysis of the reasons for modern mass incarceration.  The piece is headlined "Why Are So Many Americans in Prison?: A provocative new theory," and here is how the piece sets up a Q&A with John, along with a key portion of the Q&A explaining the heart of John's statistical insights:

Criminal justice reform is a contentious political issue, but there’s one point on which pretty much everyone agrees: America’s prison population is way too high.  It’s possible that a decline has already begun, with the number of state and federal inmates dropping for three years straight starting in 2010, from an all-time high of 1.62 million in 2009 to about 1.57 million in 2012.  But change has been slow: Even if the downward trend continues, which is far from guaranteed, it could take almost 90 years for the country’s prison population to get down to where it was in 1980 unless the rate of decline speeds up significantly.

What can be done to make the population drop faster? Many reformers, operating under the assumption that mass incarceration is first and foremost the result of the war on drugs, have focused on making drug laws less punitive and getting rid of draconian sentencing laws that require judges to impose impossibly harsh punishments on people who have committed relatively minor crimes. But according to John Pfaff, a professor at Fordham Law School, neither of those efforts will make a significant dent in the problem, because they are based on a false understanding of why the prison boom happened in the first place.  Having analyzed statistics on who goes to prison, why, and for how long, Pfaff has emerged with a new and provocative account of how the problem of mass incarceration came to be.  If he’s right, the implications for the prison reform movement are huge and suggest the work needed to achieve real progress will be much harder than most people realize.

In a conversation with Slate, Pfaff explains his theory....

Q: So why did the prison population keep on rising after 1991, when the crime wave ended? It seems like if your theory is right, that the increase in violent crime and property crime caused the prison boom, the end of the crime wave should have been accompanied by decreasing incarceration rates.

A: Three things could have happened. One, police just got much more efficient—they’re just arresting more and more people, with new policing technologies, new policing approaches—maybe they’re just arresting a bigger share of offenders. But we don’t actually see that. Arrests tend to drop with the crime rate. So the total number of people being arrested has fallen. The other thing it could be is we’re just locking people up for longer—but like I said, it’s not that. So clearly what’s happening is we’re just admitting more people to prison. Though we have a smaller pool of people being arrested, we’re sending a larger and larger number of them to prison.

Q: Why would that be?

What appears to happen during this time — the years I look at are 1994 to 2008, just based on the data that’s available — is that the probability that a district attorneys file a felony charge against an arrestee goes from about 1 in 3, to 2 in 3.  So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies.  I can’t tell you why they’re doing that.  No one’s really got an answer to that yet.  But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.

As regular readers likely know, I am a big fan of John Pfaff's research.  Anyone concerned about mass incarceration, especially at the state level, need to look at his research, and I think John is very right to focus on the importance of state prosecutorial activities and the relatively limited direct impact of the modern federal drug war on state incarceration realities.  (I must note, though, that John's analysis here is not now really "new and provocative": as this 2009 post notes, John himself highlighted this statistical story in a Slate commentary six years ago and most informed folks know prosecutorial activities have played a huge role in modern mass incarceration.)

That said, in part because John's analysis  is especially focused on state data, I fear he misses how the modern drug war, fueled especially by the growth of the federal criminal system, provides one big explanation for why and how "over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges."   In the 1980s and before, the feds generally prosecuted significantly less than 10,000 drug cases each year.  But thanks largely to the tough new drug penalties (and added prosecutorial resources) that the Congress put in place by the end of the 1980s, the feds started prosecuting tens of thousands more drug offenders each year and averaged more than 25,000 yearly drug prosecutions through the 2000s.  These additional federal prosecution of drug offenders surely freed up state prosecutors to focus more time and attention on other cases/offenders and allowed them to get "much more aggressive in how they filed charges."

In other words, in the 1980s and before, the feds prosecuted far less than 100,000 drug offenders each decade, and all the other folks arrested by states were not as aggressively prosecuted because state prosecutors saw limited value in cycling lots of lower-level drug offenders through their system.  But throughout the ’90s and 2000s, the feds prosecuted well over 500,000 drug offenders; that freed up space, time, energy for other folks arrested by states to be aggressively prosecuted.  (These forces also had a synergistic impact as new tough three-strikes laws in states and at the federal level extended greatly the terms of those repeatedly cycling through criminal justice systems.)

My point here is not to assert that John's data analysis is misguided or inaccurate in any way.  But I do think it important --- indeed, essential --- to see how the drug war and other toughness effort at both the federal and state level fed off each other in order to change state prosecutorial behaviors in the way John highlights.  And, perhaps most importantly, all of this needs to be studied closely to fully understand how we got into our modern costly mass incarceration mess and how we might best find out way out.

Prior posts about Prof. John Pfaff's important research:

February 8, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, February 07, 2015

Split Washington Supreme Court decides accomplices must receive distinct sentencing treatment

As reported in this local article, headlined "Washington Supreme Court alters sentencing structure for accomplices," the top court in the Evergreen State earlier this week issued an interest opinion concerning how the state's sentencing structure should be applied to those found guilty as accomplices. Here is a summary from the press report:

In a 5-4 opinion released Thursday, the state’s high court ruled that convicted identity thief Larry Hayes should have received a standard-range sentence after being convicted of a host of felonies in 2009.  Instead, he got a 15-year term under a provision that allows prosecutors to seek extra punishment for egregious offenders. The majority ordered the case back to Pierce County for re-sentencing.

At issue is how people charged as accomplices should be treated under the law at sentencing. For years, Washington law has prescribed that accomplices and principle actors in a crime be exposed to the same culpability, a concept Pierce County Prosecutor Mark Lindquist on Thursday called “in for a penny, in for a pound.”

In an opinion written by Justice Charles Johnson and signed by Justices Charles Wiggins, Susan Owens, Mary Fairhurst and Sheryl Gordon McCloud, the majority ruled that should not always be the case, especially where sentencing is concerned.

Until Thursday, when a prosecutor sought an exceptional sentence for a criminal defendant, he or she had to prove to a jury that certain aggravating factors made the crime worse than usual. The requirement applied to principle actors and accomplices alike. Thursday’s majority opinion said the blanket application to accomplices is improper.

Accomplices should be judged for their specific role in the crime and not just on the crime itself, the majority ruled. An accomplice, to qualify for an exceptional sentence, must have knowledge that the crime he or she is involved in is worse than usual, Johnson wrote, and prosecutors now must prove that knowledge to a jury. “...this finding of knowledge ensures that the defendant’s own conduct formed the basis of the sentence,” Johnson wrote....

Justice Debra Stephens authored the dissent, which was signed by Chief Justice Barbara Madsen and Justices Mary Yu and Steven Gonzalez. Stephens argued that the majority was turning decades of case law on its head for no good reason. “It makes no sense that a principal should be punished regardless of whether he or she knew the crime was a major economic offense but an accomplice, who committed the same crime, should not be,” she wrote.

She went on to say the ruling would have far-reaching impacts. “It is no exaggeration to say that the way co-participants have long been tried in this state will need to change in order to accommodate the knowledge finding the majority superimposes on the enhancement statute,” Stephens wrote.

Lindquist agreed with Stephens’ assessment and said he would consider asking state lawmakers to pass legislation clarifying what they want to happen to accomplices. “They could say, ‘We meant what we wrote: Principals and accomplices are equally culpable,’” Lindquist said.

Appellate attorney Nancy Collins, who worked on Hayes’ appeal, said she thinks the majority got it right and that the application of the ruling would not be onerous. “I don’t see it as a change in the law at all,” Collins said. “The majority said the jury needs to consider the defendant’s individual conduct.”

The full opinion in Washington v. Hayes, No. 89742-5 (Wash. Feb. 5, 2015), is available at this link.

February 7, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Friday, February 06, 2015

Bipartisan Recidivism Risk Reduction Act introduced in US House

This notable press release from the office of Representative Jason Chaffetz provides the details of a federal prison reform bill that would be extremely consequential if it can get enacted. Here are excerpts from the release providing basic details about the bill:

Republicans Jason Chaffetz (R-UT) and Trey Gowdy (R-SC) joined with Democrats Cedric Richmond (D-LA) and Hakeem Jeffries (D-NY) to introduce H.R. 759, Recidivism Risk Reduction Act. This bipartisan legislation uses risk assessment tools to reduce recidivism, lower the crime rate, and reduces the amount of money spent on the federal prison system....

H.R. 759 would implement a post-sentencing dynamic risk assessment system to identify an inmate’s risk of recidivism. Then, using evidence-based practices developed by states, effective recidivism reduction programs are identified and utilized. The bill would then provide incentives for inmates to participate in those programs.

Ultimately, inmates could earn credits toward an alternative custody arrangement – such as a halfway house or home confinement – at the end of their term. Such arrangements reduce the cost of housing an inmate in the federal prison system.

The program will be phased in over a five year period. The savings will be reinvested into further expansions of proven recidivism reduction programs during this time. After that, it is anticipated that the savings can be used either for other Justice Department priorities such as FBI agents, US Attorney offices etc., or the savings can be used to help reduce the deficit. Similar programs have found success on a state level in several states including Texas, Oklahoma, Ohio, and North Carolina.

In addition, Reps. Chaffetz and Jefferies introduced HR 760, the Bureau of Corrections Renaming Act. This bipartisan legislation would simply rename the “Bureau of Prisons” – under the jurisdiction of the Department of Justice – the “Bureau of Corrections.” Over ninety percent of all federal prisoners will eventually be released. This small change will help the Bureau remember that its mission is not just to house people, but also to rehabilitate prisoners such that they are productive members of society when released. Forty-eight states throughout the country use the word ‘corrections’ in describing their prisons.

The Attorney General is directed to consult with appropriate federal agencies and stakeholders to design, develop, implement, and regularly upgrade an actuarial Post Sentencing Risk Assessment System which shall include one or more comprehensive risk and needs assessment tools, which shall be peer-reviewed and validated, and periodically re-validated, on the federal prison population for the specific purposes of this Act.

Prisoners will be divided into high, moderate, or low risks of recidivism. Prisoners will be periodically re-evaluated and have the opportunity to progress to low risk of recidivism. Prisoners who misbehave can move the other way – i.e. from low to moderate risk of recidivism. Bureau of Prisons shall incentivize prisoners to reduce their individual risk of recidivism by participating in and completing recidivism reduction programs.

Prisoners who have committed more serious crimes such as child abuse, terrorism, and violent felonies, are not eligible for the program.

If a prisoner is successfully participating in and/or completing programs, holding a prison job, participating in educational courses, participating in faith-based services and courses, or delivering programs or faith-based services and courses to other prisoners, the prisoner can earn [certain credits based on their risk levels]. Low risk prisoners will be eligible for consideration for alternative custody such as halfway houses, home confinement, ankle bracelets, etc.

This is not automatic – it must be reviewed and approved by the prison warden, the chief probation officer in the relevant federal district, and a judge in the relevant federal district.

This is not a reduction in sentence – prisoners are not being released and nothing in this Act affects Truth in Sentencing requirements that prisoners complete at least 85% of their sentence.

Some recent related posts:

UPDATE:  Not to be overlooked (even though I managed to overlook it), this past week also saw another notable bipartisan federal bill of not introduced in both houses of Congress.  This press release from the office of Senator Rand Paul provides the basics:

Today, Senator Rand Paul (R-KY), Senator Patrick Leahy (D-VT), Representative Thomas Massie (R-KY), and Representative Bobby Scott (D-VA) introduced the Justice Safety Valve Act (S. 353/H.R. 706) in the Senate and House of Representatives.  The Justice Safety Valve Act would give federal judges the ability to impose sentences below mandatory minimums in appropriate cases based upon mitigating factors.

February 6, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, February 05, 2015

More than three decades after crime, SCOTUS decides it still needs to stay Texas mass murderer execution

As reported in this AP piece (with my emphasis added), a "Texas inmate set to be executed next week for fatally shooting four men at an airplane hangar more than 30 years ago won a reprieve Thursday from the U.S. Supreme Court."  Here are the details:

Lester Bower Jr., 67, among the longest-serving Texas death row inmates, had been scheduled for lethal injection Tuesday. The justices gave no reason for the reprieve, saying only that it would be lifted automatically if they deny an appeal or act on it.

Bower was convicted in the October 1983 deaths at a Grayson County ranch about 60 miles north of Dallas. Authorities found parts from a small ultralight airplane at the hangar at his home in Arlington, a Dallas suburb. Prosecutors also tied unusual Italian-made .22-caliber bullets used in the slayings to similar ammunition purchased by Bower, a federally licensed gun dealer.

In their appeal to the high court, Bower's lawyers said jurors who decided on his death sentence had faulty instructions that didn't allow them to consider mitigating circumstances that he had no criminal record, was a married father of two, college educated and employed as a chemical salesman.

Since his 1984 trial, court rulings have refined instructions to Texas capital murder trial juries to account for mitigating circumstances. Several condemned inmates from that era - but not Bower - have received new court-ordered punishment trials. Bower's attorneys also contended that prosecutors misstated the rarity of the fatal bullets, and that his long time on death row and numerous rescheduled execution dates amount to unconstitutional suffering.

State attorneys argued that courts have rejected appeals about the jury instructions, that information about the bullets was available at the time of his trial and that Bower's lawyers' persistent appeals account for the lengthy case. "Any delay is purely of his own making," Stephen Hoffman, an assistant Texas attorney general, told the justices in a filing this week....

Those killed were building contractor Bob Tate, 51; Grayson County Sheriff's Deputy Philip Good, 29; Jerry Brown, 52, an interior designer; and Ronald Mayes, 39, a former Sherman police officer. Good's wife, Marlene Bushard, said the delay was "very frustrating since we were so close."

"I am hoping once this is done he will be out of options, we can get another death warrant and end this," she said in an email.

As this timeline of products reveals, over the last 30 years Apple has been able to go from its Apple IIe personal computer to a modern (multi-generation) iPhone and iPad and iMac, and the latest Apple machines now put more computing power into our hands than NASA had at its disposal in the early 1980s.  Meanwhile during this same period, our legal system has been unable to conclusively determine whether a Texas mass murderer was lawfully sentenced to death. Hmmm.

February 5, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, February 03, 2015

NACDL seeking examples of federal cases impacted by "trial penalty"

Through some of my work with folks at the National Association of Criminal Defense Lawyers, I have learned that NACDL is now, as part of its Trial Penalty Project, actively seeking examples of the “trial penalty” federal defendants often face as they consider whether to exercise their right to go to trial based on the great discrepancy between post-trial sentences and those offered in the plea process.   Human Rights Watch issued a report summarizing extensive statistical and anecdotal evidence of this trial penalty focusing on federal drug defendants, and NACDL is working toward producing companion report focusing on the trial penalty in federal cases not involving drug prosecutions. 

NACDL seeks, via a simple on-line survey, help in collecting examples and data for use in the report. NACDL is interested in examples such as (1) cases where a defendant after trial received a far more severe sentence than had been offered during plea negotiations; (2) cases where a defendant pleaded guilty principally because of a fear that any sentence imposed after trial would be dramatically higher than the plea offer; and/or (3) cases where defendant(s) convicted at trial received disproportionately severe sentences given their culpability as compared to co-defendants who pleaded guilty.

If you know of a federal case that fits these categories — or that otherwise reflects the “trial penalty” federal defendants often face in non-drug-offense settings — please take a few minutes to complete the online questionnaire at the NACDL website.

February 3, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System"

The title of this post is the title of this timely new report from The Sentencing Project.  Here is a partial summary of its contents from an e-mail I received earlier today:

The report identifies four key features of the criminal justice system that produce racially unequal outcomes, beyond the conditions of socioeconomic inequality that contribute to higher rates of some crimes in marginalized communities, and showcases initiatives to abate these sources of inequity in adult and juvenile justice systems around the country. In many cases, these reforms have produced demonstrable results, including:
  • Indiana amended its drug-free zone sentencing laws, which imposed harsh penalties on a defendant population that was over 75% African American in Indianapolis.
  • Multnomah County (Portland), OR, revised and removed bias in its risk assessment instrument for determining juvenile detention, reducing African American and Latino youth detention levels by half.
  • Berks County, PA, reduced the number of youth in secure detention – who were primarily youth of color – by 67% between 2007 and 2012 in part by increasing reliance on alternatives including non-secure shelters and expanding use of evidence-based treatment programs.
  • The Milwaukee County prosecutor’s office eliminated racial disparity in charges of possession of drug paraphernalia by instituting case oversight and emphasizing diversion to treatment programs and dismissals.

February 3, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, January 30, 2015

Aggressive litigation prompts federal prosecutor in Chicago to drop stash house sting

As reported in this lengthy front-page Chicago Tribune article, aggressive litigation by the federal defense bar concerning aggressive federal drug-war tactics have now resulted in federal prosecutors backing off the most aggressive federal criminal charges these tactics have generated.  The article is headlined "Chicago prosecutors quietly drop charges tied to drug stash house stings," and here is how it begins:

Federal prosecutors in Chicago have quietly dropped narcotics conspiracy charges against more than two dozen defendants accused of ripping off drug stash houses as part of controversial undercover stings that have sparked allegations across the country of entrapment and racial profiling.

The decade-old strategy is also under fire because federal authorities, as part of a ruse, led targets to think large quantities of cocaine were often stashed in the hideouts, ensuring long prison terms upon conviction because of how federal sentencing guidelines work. Experts said the move by Chicago prosecutors marked the first step back by a U.S. attorney's office anywhere in the country in connection with the controversial law enforcement tactic.

In the court filings seeking the dismissals, prosecutors gave no clue for the unusual reversal, and a spokesman for U.S. Attorney Zachary Fardon declined to comment. But the move comes two months after the 7th U.S. Circuit Court of Appeals issued a stinging rebuke to the policy, ordering a new trial for a Naperville man who alleged he was goaded into conspiring to rob a phony drug stash house by overzealous federal agents.

The stings, led by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, have been highly criticized for targeting mostly minority suspects, many of whom were drawn into the bogus rip-offs by informants who promised easy money at vulnerable points in their lives.

The cases are built on an elaborate ruse concocted by the ATF. Everything about the stash house is fictitious and follows a familiar script, from supposedly armed guards that need to be dealt with to the quantity of drugs purportedly stashed there. By pretending the house contains a large amount of narcotics, authorities can vastly escalate the potential prison time defendants face, including up to life sentences. Earlier this month, federal prosecutors in Chicago sought to drop drug conspiracy charges in seven of the nine pending stash-house cases, leading some of the judges to quickly approve the move without a hearing.

In each case, the defendants — 27 in all — still face weapons and other charges for the alleged scheme and potentially long prison sentences upon conviction. But without the drug conspiracy charges, the mandatory minimum sentences for most of the defendants would drop to just five years in prison from as much as 25 years, according to Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School.

The ATF investigations have also faced legal backlash around the country, including in California, where last year two federal judges ruled the stings amounted to entrapment.

Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law in New York, said hundreds of people nationally have been charged as part of the drug house ruse. The ATF has been using this sting for at least a decade, she said. Tinto said she believes the decision to drop the cases in Chicago is an acknowledgment of the fact that federal agents involved in the sting set the quantity of the phony drugs, a critical factor in driving the sentencing.

The dismissal of the seven cases likely "signals that the government is starting to take a critical look both at these tactics and the immense sentencing these tactics can bring," Tinto said.  "In this tactic the drugs are imaginary, and the amount of the drugs is set by the government."

I have been preaching in recent years that I have come to believe that aggressive litigation taking on some of the worst extremes of the federal drug war and excesses of mass incarceration was more likely to "move the sentencing reform needle" as much, if not more, than legislative advocacy directed and a gridlocked Congress. This story reinforces my sense that more and more federal judges are growing more and more willing to criticize and seek to rein in what they more and more are seeing as federal prosecutorial overreach in the drug war and elsewhere.

January 30, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, January 29, 2015

George Toca now a free man ... and SCOTUS now lacks a live Miller retroactivity case

This local article from Louisiana, headlined "George Toca, La. inmate at center of debate on juvenile life sentences, to go free," reports on a remarkable turn of events in a case that was supposed to serve as the means for the Supreme Court to address the retroactivity of its Eighth Amendment Miller ruling. Here are the details:

A state prisoner from New Orleans who recently landed at the center of national legal debate about mandatory life sentences for youthful offenders won his freedom Thursday after 31 years in prison. Orleans Parish District Attorney Leon Cannizzaro’s office agreed to vacate his murder conviction.

George Toca, 47, is set to go free after pleading guilty instead to two counts of attempted armed robbery and one count of manslaughter from a 1984 stickup that ended with his best friend, Eric Batiste, fatally shot outside a convenience store on South Broad Street in Broadmoor.

Toca’s release almost certainly means the U.S. Supreme Court will scrap a scheduled hearing this spring on whether its 2012 decision in a case known as Miller v. Alabama, barring mandatory life sentences for juvenile convicts, is retroactive.  The high court in November took up Toca’s case, above others, to settle an issue that affects about 1,000 convicts in Louisiana and three other states that have refused to apply the court’s ruling to older juvenile lifers.

A spokesman for Cannizzaro’s office said the DA will join in a motion with Toca’s attorneys to withdraw the Supreme Court case.

Toca, appearing briefly in court Thursday morning, pleaded guilty to the manslaughter count under an “Alford” plea, meaning he did not admit guilt but conceded that strong evidence could have led to his conviction.  He returned to Angola State Penitentiary for processing, with his release expected late Thursday or Friday.

Newly elected Criminal District Court Judge Byron Williams granted the joint motion in a case that the Innocence Project New Orleans had pursued on Toca’s behalf for more than a decade.  DA’s Office spokesman Christopher Bowman credited a warming relationship with Innocence Project attorneys, along with Toca’s productive years behind bars, for the decision to let him go free on the reduced charges.

Bowman called it “a just outcome,” also citing the vehemence of Batiste’s family in urging Toca’s release and the fact he will remain on parole for another 30 years under the deal. “In light of all those facts, the district attorney believed he was no longer a public safety risk,” Bowman said. “The District Attorney’s Office ... is not afraid to take a look at older cases.”...

Bowman insisted that the DA’s decision to come to a deal on Toca’s release was unrelated to the pending U.S. Supreme Court case, in which Cannizzaro’s office had been gearing up to argue against the retroactive application of Miller v. Alabama.

The high court didn’t ban states from sentencing some young killers to life without parole. But the 5-4 majority opinion insisted that courts must first weigh a defendant’s youth, adding that “we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”  The court said “youth matters for purposes of meting out the law’s most serious punishments,” citing “children’s diminished culpability and heightened capacity for change” when compared with adults.

In legal filings, Cannizzaro’s office argued that it would be a fool’s errand to force local judges, years or decades later, to discern a long-ago juvenile’s capacity for change. Advocates for juvenile lifers argued that the task would be made easier because judges can review an inmate’s record while behind bars.  And they saw Toca’s case as a promising bellwether for what the high court justices might do....

According to the state, 272 Louisiana inmates had been sentenced as juveniles to life without the possibility of parole as of April 2013 — the bulk of them, like Toca, having been sentenced before the U.S. Supreme Court decision.  State Supreme Courts in Pennsylvania, Michigan and Minnesota also have found that Miller v. Alabama does not apply retroactively, setting up the fight at the U.S. Supreme Court.

Toca’s vacated conviction and release will leave the issue unresolved for now, said Cara Drinan, an associate professor of law at Catholic University of America.  Still, she expects the Supreme Court to take up the retroactivity question relatively soon in some other case, now that it has signaled its interest in settling the issue.  “For George Toca, this is a victory and a great thing,” Drinan said.  “For those of us looking at the bigger issue, and for the hundreds of people waiting for a resolution, we’ll have to wait.”

January 29, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Sentencing around the world | Permalink | Comments (7) | TrackBack

Wednesday, January 28, 2015

Did feds just win the drug war?: kingpin twin drug dealers get kingly sentencing break thanks to cooperation

ImagesAs detailed in this AP story, headlined "Trafficking Twins Get Sharply Reduced Sentences," the sentencing benefits of cooperating with the government was on full display yesterday in a Chicago federal courtroom. Here are the details:

Identical twin brothers who ran a drug-trafficking ring that spanned much of North America were sentenced Tuesday to 14 years in prison after a judge agreed to sharply reduce their penalty as a reward for becoming government informants and secretly recording Mexico's most notorious drug lord.

In a rare courtroom display, it was a federal prosecutor who poured praise on Pedro and Margarito Flores, portraying them as among the most valuable traffickers-turned-informants in U.S. history and describing the courage they displayed in gathering evidence against Joaquin "El Chapo" Guzman and other leaders in Mexico's Sinaloa cartel.

With credit for time served awaiting sentencing and for good behavior in prison, the brothers, now 33, could be out in as little as six years.

Chief U.S. District Judge Ruben Castillo likened Americans' sense of security to walls and scolded the brothers for introducing drugs that fueled violence and despair. "You devastated those walls. You knocked them down," he said.  The twins' cooperation was the only thing that spared them from an actual life sentence, Castillo told the brothers. But, he added, they would still serve a life sentence of sorts — having to look over their shoulders the rest of their lives in constant fear of a deadly attack by an assassin working for the cartel they betrayed.

Castillo said the twins were the most significant traffickers ever in his court.  But he said he had also never seen traffickers at the height of their power and wealth come forward to offer to become government witnesses, as the siblings had.

The twins appeared in court with the same olive-green clothes and the same closely cropped haircuts. Both kept tapping one foot nervously throughout the hourlong hearing. Just before the judge imposed a sentence, each walked to a podium separately to speak, appearing uneasy. "I'm ashamed. I'm embarrassed. I'm regretful," Margarito Flores said. "There is no excuse."

So successful was their criminal enterprise that the jewelry-loving, Maserati-driving twins smuggled $1.8 billion — wrapped in plastic and duct tape — into Mexico, according to prosecutors....

Prosecutor Mike Ferrara had asked for a sentence of around 10 years. He noted the twins' cooperation led to indictments of Guzman and more than 50 others. The twins began cooperating with agents in 2008 and engaged cartel leaders for months, sometimes switching on recorders and shoving them in their pockets. They continually risked death, Ferrara said.

The 5-foot-4 twins' trafficking careers soared after they left Chicago to live in Mexico around 2004. In mid-2005, they met with Guzman in his secret mountain compound to cut major drug deals, government filings said. The brothers ran their operation from a Mexican ranch. Their network stretched from its Chicago hub to New York, Detroit and Washington, D.C., and to Los Angeles and Vancouver, British Columbia....

Later Tuesday, Chicago-based U.S. Attorney Zachary Fardon announced new charges against several Sinaloa figures stemming from the twins' cooperation. Asked about their lenient sentences and the message it sent to other would-be cartel traffickers, Fardon said it should demonstrate, "You can right some of what you did wrong ... by helping the government."

So does this all mean that the federal drug war can be declared officially over, and that we can claim the good guys officially won this 50-year costly war?  After all, this was a sentencing of two of the most significant drug traffickers, and they have become the "most valuable traffickers-turned-informants in U.S. history."  Surely this must scare off and deter all other current and would-be drug dealers and all the trillions in taxpayer dollars spent on the drug war has now been vindicated as money well spent.  

Of course, I am asking the question above and in the title of this post with my tongue firmly planted in my cheek.  A key problem with the drug war, as I see it, is that even a huge drug war "victory" in catching and prosecuting some drug dealers typically will make it that much more valuable and enticing for other drug dealers to seek to replace the captured criminals.  I fear that , unless and until illegal drug demand is reduced,  illegal drug suppliers will be plentiful in part because the drug war makes their activities potentially much more lucrative.  

January 28, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, January 27, 2015

"Back to the Future: The Influence of Criminal History on Risk Assessment"

The title of this post is the title of this timely new paper by Melissa Hamilton now available via SSRN. Here is the abstract:

Evidence-based practices providing an empirical basis for predicting recidivism risk have become a primary focus across criminal justice decision points.  Criminal history measures are the most common and heavily weighted factors in risk assessment tools, yet is such substantial reliance fully justified?  The empirical and normative values placed on criminal history enjoy such commendation by criminal justice officials, practitioners, and the public that these practices are rarely questioned.  This paper fills the gap by introducing and exploring various issues from legal, scientific, and pragmatic perspectives.

As a general rule, a common assumption is that past behavior dictates an individual’s likely future conduct.  This axiom is often applied to criminal behavior, more specifically, in that prior offending is considered a primary driver to predict future recidivism.  Criminal justice officials have a long history of formally and informally incorporating risk judgments into a variety of criminal justice decisions, ranging from bail, sentencing, parole, supervisory conditions, and programming.  A more contemporary addendum represents empirically informed risk assessment practices that integrate actuarial tools and/or structured professional judgments.  Various criminal history measures pervade these newer evidence-based practices as well.  

Instead of presuming the value and significance of prior crimes in judging future recidivism risk, this Article raises and critically analyzes certain unexpected consequences resulting from the significant reliance upon criminal history in risk assessment judgments.  Among the more novel issues addressed include: (1) creating a ratchet effect whereby the same criminal history event can be counted numerous times; (2) resulting in informal, three-strikes types of penalties; (3) counting nonadjudicated criminal behaviors and acquitted conduct; (4) proportionality of punishment; (5) disciplining hypothetical future crime; (6) punishing status; and (7) inadequately accounting for the age-crime curve. In the end, criminal history has a role to play in future risk judgments, but these issues represent unanticipated outcomes that deserve attention.

January 27, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (8) | TrackBack

Monday, January 26, 2015

"Beyond a Reasonable Disagreement: Judging Habeas Corpus"

The title of this post is the title of this notable new article by Noam Biale now available via SSRN. Here is the abstract:

This Article addresses ongoing confusion in federal habeas corpus doctrine about one of the most elemental concepts in law: reasonableness.  The Supreme Court recently announced a new standard of reasonableness review for habeas cases, intended to raise the bar state prisoners must overcome to obtain federal relief.  This new standard demands that errors in state court decisions be so profound that “no fairminded jurist could disagree” that the result is incorrect. Scholars have decried the rigid and exacting nature of this standard, but very little interpretive work has yet been done to theorize what it means and how it should be used.

This Article develops a theoretical framework for understanding the new habeas standard and shows that the assumptions lower courts are making about its meaning are wrong. It concludes that federal courts need more data beyond the mere possibility of fairminded disagreement to find that a decision is reasonable.  The Article draws on scholarship and jurisprudence in other areas of law that employ reasonableness standards, and argues that the missing data should be supplied by examining the state adjudicative process.  The case for focusing on state process in federal habeas cases is not new, but this Article represents the first argument that the new habeas standard not only permits such a focus but, in fact, requires it.

January 26, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack