Monday, February 05, 2018

Examining whether juve life with parole in Maryland really means a real chance at parole

This lengthy new Washington Post article, headlined "The life sentence he got as a teen came with a chance at parole. But is it a real chance?," provides a deep dive into what parole eligibility means these days in one state and highlights why there is sure to be debates and litigation over the Supreme Court's rulings in Graham and Miller for many years to come.  Here are excerpts:

Walter Irving Maddox was on the phone making New Year’s Eve plans when he heard a knock on the door of his secluded cottage steps from the creek where he’d spent decades hauling crabs.  He laid the phone on a bed.  From the other end of the line, his girlfriend heard voices.  Then, sharp banging and doors slamming, followed by groans and gurgling.

The metallic sound, she would soon learn, was neighborhood teenager, James E. Bowie, pummeling 68-year-old Maddox with an aluminum baseball bat.  Bowie was a high school dropout, fueled by drugs and anger.  He never intended to hurt Maddox so severely, just to subdue him while a friend grabbed the waterman’s cash, he said recently.

Maddox, now 90, was never the same. “It just destroyed his memory,” said Maddox’s son, who shares his father’s name. “They took his life away from him, but they didn’t finish the job.”

Bowie was 17. He was sentenced in 1997 to life in prison with the possibility of parole — a possibility his lawyers say exists on paper, but carries no real chance for release.

Maryland is one of three states, with California and Oklahoma, that requires the governor’s signature to parole inmates sentenced to life. In the last two decades, no Maryland governor has signed off on a parole board recommendation to release a lifer like Bowie who committed his crime before he turned 18.  Bowie has spent his 20s and 30s in prison, more time locked up than he was on the outside.

“My life experience stopped at 17,” Bowie, now 40, said in interviews from state prison in Hagerstown, Md., for attempted murder and robbery. “I needed to be punished for what I did and needed to have time to be corrected, but the rest of my life is overkill.  I’m not the same person I was.”

His case is one of four being considered this week by the state’s highest court in Annapolis in a challenge to the legality of the Maryland parole system.  Prison reform advocates say the system is unconstitutional because while the punishment in the cases involving juvenile offenders technically includes parole, the state hasn’t paroled any inmate in that position in more than 20 years.

The office of Attorney General Brian Frosh says Bowie’s sentence is legal and his challenge is premature.  He hasn’t been recommended for parole or formally denied release by any governor. “If they are unhappy with the way parole is implemented, their issue is with the executive branch,” said Frosh’s spokeswoman Raquel Coombs.

The question for the Maryland Court of Appeals is whether a young person can be sentenced to life without what advocates say is any realistic chance of parole. The outcome of the cases could affect an estimated 300 lifers locked up for crimes they committed as juveniles....

“The Supreme Court has been so clear and so forceful about how the landscape has changed,” said Sonia Kumar of the American Civil Liberties Union, an attorney challenging Maryland’s parole system in a separate federal case. “There really isn’t any excuse for why Maryland is still operating the way it is and denying people who were sent to prison as kids any hope of relief no matter how thoroughly they’ve turned their lives around,” she said.

The Maryland attorney general’s office says the fact that parole on life sentences is infrequent and has declined “is not proof of a constitutional violation” but rather “proof, perhaps, of changes in the way that governors and parole commissioners exercise their discretion, but nothing more.”

Inmates with life sentences with the possibility of parole must serve at least 15 years before being considered for release. Parole commissioners, appointed by the governor, review records, notify victims and interview the prisoner before making a recommendation to the governor, who must act within 180 days.  In Bowie’s case, the parole board recommended him for a rehearing after his first review in 2007.  Changes to the system, the attorney general’s office says, must come from the legislature or the governor. But legislation to take the governor — and politics — out of the parole process, proposed again this session, has been stymied for years in part because of opposition from elected state prosecutors.

Between 1969 and 1994, three Maryland governors paroled 181 lifers. As governor, Parris N. Glendening in 1995 said resolutely he would sign no paroles in life-term cases, standing in front of a state prison to announce: “A life sentence means life.” In the following two decades, court records show none were paroled. Governors rejected recommendations on 24 lifers — juveniles and adults — without explanation.

More recently, Gov. Larry Hogan (R) has approved parole for two adult inmates sentenced to life.  Like each governor since Glendening, he also has used separate clemency powers to reduce prison sentences and bring early release for a small number of lifers.  But reform advocates say acts based on prerogative do not fix an unconstitutional life sentence or the parole system.

“Not only is the governor not bound by any standards or forced to consider any particular factors, but the governor is not required in any way to explain his decision,” said James Johnston, director of the Youth Resentencing Project within the Maryland Office of the Public Defender, which has brought dozens of court challenges throughout the state, including Bowie’s.

The three other cases before the appeals court this week involve crimes committed by teenagers who are now serving life and in one case a term of 100 years: a 1989 home invasion in Prince George’s County that resulted in three deaths; a 1999 murder in Baltimore; and a 2004 shooting outside Randallstown High School that paralyzed a student.

February 5, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Mass molester Larry Nassar gets another 40 to 125 years in his third and final sentencing

Though civil suits resulting from former sports doctor Larry Nassar's many crimes seem likely to go on for a very long time, today I believe all of the criminal cases against the bad doctor concluded with a final state sentencing.  This local article, headlined "Nassar gets another 40-125 years," starts its account of this latest sentencing this way:

Former Michigan State University doctor Larry Nassar was sentenced to another 40-125 years in prison for sexually molesting hundreds of young girls. Eaton County Circuit Court Judge Janice Cunningham handed down the sentence Monday. "I am not convinced that you believe what you did was wrong," Cunningham said. "Clearly you are in denial ... I do not believe there is a likelihood that you can be reformed."

Before he was sentenced, the disgraced doctor said he was sorry for his crimes during his last sentencing hearing Monday. "It's impossible to convey the depth and breadth of how sorry I am to each and everyone involved," he said. "The visions of your testimony will forever be present in my thoughts."

Since last month, more than 200 women spoke over nine days in two county court rooms about the impact the sexual abuse inflicted by Nassar has had on their lives. "You are a doctor and you took an oath to do no harm, but you harmed more than 250 young women," Cunningham also said Monday. "You will spend the rest of your life in prison, left with the memories of destroying your family and so many others around you."

Larissa Boyce — the first to tell a Michigan State University official about Nassar 20 years ago but was not believed — said Friday in a public statement that this moment cannot be forgotten. “This is a life-changing time in our society, in our culture and in our world,” Boyce said.

Prior related posts:

February 5, 2018 in Procedure and Proof at Sentencing, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Saturday, February 03, 2018

"As Patriots, we support juvenile justice reform"

TeamLogoThe title of this post is the headline of this notable new opinion piece in the Boston Globe authored by Devin McCourty, a New England Patriot player, and New England Patriots' owner Robert Kraft and his son Jonathan Kraft. Here are excerpts:

The New England Patriots represent a six-state region and we are grateful for many things, including our region’s national leadership in improving our justice systems, especially for children and youth. The Patriots organization cares about the safety of our communities and we know the best place to start is with our youngest members.  If we get it right with our youth, they will become our future leaders, neighbors, and trusted colleagues.

In some ways, we are ahead of the game.  All six New England states recognize the importance of accountability, but children are not adults and should not be treated as such. Each state has a separate juvenile justice system that aims to provide rehabilitative, developmentally appropriate responses for kids who have made bad choices.

While we have made strides in this area, there is still plenty of room for improvement as we search for the appropriate age range for the juvenile justice system. Unfortunately, we end up sweeping in kids who are too young, and then we exclude older teens who would benefit the most.  Right now, the Massachusetts juvenile system applies to youth ages 7 through 17.  This means 7-year-olds who are in the first grade — children reading “Green Eggs and Ham” — can be arrested, prosecuted, and confined.  Yet, 18-year-olds who are still in high school are automatically charged as adults and excluded from the juvenile system, regardless of the crime.

This age range is an outdated policy that compromises public safety.  It should be obvious that very young children cannot understand the court process and lack the reasoning to participate fully in their own defense.  In fact, mere exposure to the justice system can be particularly harmful — both to them and to society.  Seven-year-olds would be better served by agencies like child welfare or mental health.

As for the upper age of the juvenile system, research shows what any parent knows — that celebrating an 18th birthday does not magically transform everyone into a mature adult.  The physical, emotional, and practical transition from childhood to adulthood is a lengthy process, stretching into the mid-20s. ...

Sadly, it is our most vulnerable youth — children of color — who bear the brunt of our misguided age policies.  Black and Hispanic youth become system-involved at shockingly disproportionate rates that cannot be explained by differences in behavior.  In Massachusetts, children of color constitute approximately one-third of the state’s youth population, but two-thirds of those committed to the state youth correctional agency.  Although there are no Massachusetts data publicly available for 18-year-olds, we know that the national rate of incarceration in 2012 was more than nine times greater for black males ages 18 to 19 than for white males.

This issue of the age of juvenile jurisdiction takes on particular importance as New England struggles with a sweeping drug epidemic.  A recent report by the Columbia University Justice Lab revealed that substance-related offenses in Massachusetts are the leading cause of arrests for 18-year-olds, that two-thirds of people in treatment for opioid addiction started using opioids before age 25, and that opioids accounted for more than a quarter of all fatalities in the 18 to 24 age group.  To avoid such tragedies, we can begin by including late teens in the much smaller, individualized treatment-oriented juvenile justice system. That will give us a better chance of preventing and addressing substance use disorders for the youth who are the most vulnerable to addiction and its consequences.

We strongly support the proposal being considered by the Massachusetts Legislature that would first raise the lower age of juvenile jurisdiction from 7 to 12, and second, raise the upper age from 18 to 19.  Both moves would constitute more appropriate and effective responses to the needs of our youth. We also support Vermont and Connecticut in their ongoing efforts to consider and adopt similar proposals.

February 3, 2018 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5)

Friday, February 02, 2018

Are Governors considering capital clemency inclined to give great weight to capital jurors calling for a commutation?

In my sentencing class, we have been talking about all the different players in the sentencing drama, and those stories often come into especially sharp relief as we move into our capital punishment unit.  And, coincidentally, after an execution in Texas last night, Ohio has the next scheduled execution in the US so that my students can have a front-row seat concerning all the players that become involved in the sentencing drama as a death sentence gets ever closer to being carried out.

Against that backdrop, the question in the title of this post arises as a result of the news, reported at the end of this article: Ohio "Governor Kasich has faced calls in recent weeks to spare Tibbetts because attorneys say he suffered from opioid addiction.  On Thursday, a former juror in Tibbetts’ capital murder trial wrote a letter urging Kasich to grant him a reprieve.  The juror said he has since seen mitigating evidence that he had never seen at trial and he would not have recommended the death penalty if he heard about Tibbetts’ history of abuse and addiction."

The full text of the intricate four-page letter from juror Ross Allen Geiger to Ohio Gov Kasich is available at this link.  It makes for an interesting read, and here an excerpt:

All of these things lead me to one conclusion and that is that the system was and seems to be today very flawed in this case.  The State of Ohio (through Hamilton County) called on me to fulfill a civic duty one that included an unenviable task of possibly recommending death for another man.  I fulfilled this duty faithfully. Governor, if we are going to have a legal process that can send criminals to death that includes a special phase for mitigation shouldn’t we get it right?  Shouldn’t the officers of the court (primarily the defense attorneys) treat the life or death phase with great attention to detail and the respect it deserves?

In conclusion, Tibbets is guilty and has forfeited forever his right to freedom.  If the death penalty is reserved for the “worst of the worst”, that is murderers that truly have no potential for redemption, then I ask you to grant mercy to Tibbets.  Based on what I know today I would not have recommended the death penalty....

February 2, 2018 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Thursday, February 01, 2018

"Mass Incarceration: New Jim Crow, Class War, or Both?"

The title of this post is the title of this interesting new empirical paper authored by Nathaniel Lewis. Here is the interesting paper's abstract and conclusion:

Using data from the National Longitudinal Study of Adolescent to Adult Health, I analyze racial and class disparities in incarceration.  My analysis shows that class status has a large and statistically significant effect on (1) whether or not men aged 24–32 years have ever been to jail or prison; (2) whether or not men are jailed after being arrested; (3) whether or not men have spent more than a month in jail or prison; and (4) whether or not men have spent more than a year in jail or prison.  After controlling for class, I do not find race to be a statistically significant factor for the first three outcome categories, but I do find that race has a significant impact on whether or not a man has spent more than a year in prison or jail....

This study takes a careful account of class and how it relates to race and incarceration rates.  Previous studies interested in racial disparities across various outcomes all too often fail to control for class at all, or else pick a single variable as a proxy for class, which comes with a set of confounders.  The constructed class variables used here attempt to balance out the confounders lurking in any one proxy variable.  The result, robust across different methods of composite construction, is that class appears to be a larger factor than usually reported when studying racial disparities. It may indeed come as a surprise to many that race is not a statistically significant factor for many incarceration outcomes, once class is adequately controlled for.

To an extent, this study provides weight to the assertion that mass incarceration is primarily about the systematic management of the lower classes, regardless of race.  It would be reasonable to conclude then that if policymakers wished to eliminate the phenomenon of mass incarceration, and the negative effects it has on black Americans, they should look to reducing class disparities in universal ways.  For example, single-payer health care, a federal job guarantee, a universal basic income, a livable minimum wage, universal childcare, universal education.  These are all policies that would likely reduce class disparities and provide the material means to lift a large swath of people out of the scope of the criminal justice system.

On the other hand, this study demonstrates a large racial gap, even controlling for class, when it comes to the most devastating outcome: long appearances in jail and prison. The current popular effort to draw attention to racial disparities as racial disparities certainly seems to still hold validity in light of this study. Nevertheless, while a focus on reducing class disparities in a material fashion clearly will not be enough to completely solve the problem of racial bias, it seems evident that this approach would do a lot of good for poor blacks and poor whites alike with respect to the cruel machinery of mass incarceration.

February 1, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, January 31, 2018

Spotlighting prisoners still stuck in federal prison because of absence of retroactive application of Fair Sentencing Act

Kara Gosch has this new Washington Post commentary headlined "Thousands are stuck in prison — just because of the date they were sentenced." Here are excerpts:

Eugene Downs sits in federal prison years longer than justice demands.  On Aug. 2, 2010, Downs was sentenced to a mandatory minimum sentence of 10 years for conspiring to distribute at least 50 grams of crack cocaine.  The very next day, President Barack Obama signed the Fair Sentencing Act, a law that limited mandatory minimum sentences for crack cocaine and the number of cases subject to them.

If Downs had been sentenced one day later, he would now be free, because the Fair Sentencing Act reduced the sentence for distribution of 50 grams of crack cocaine to five years.  Incidentally, Downs’s co-defendants were all sentenced after Aug. 2 and benefited from the lowered penalties.

Earlier this month, the U.S. Court of Appeals for the 6th Circuit ruled there is nothing it can do to help Downs....

Thanks to efforts from civil rights and criminal-justice-reform organizations, the Obama administration signed onto the Fair Sentencing Act, which reduced the drug quantity ratio between powder and crack cocaine that triggers the mandatory minimums from 100-1 to 18-1.  The law’s disparity is still unjustified, but the 2010 reform was a big step in the right direction.

Unfortunately, the law failed to account for people already in prison under the outdated penalties. According to a document generated by the Sentencing Commission for Congress, 3,147 people could benefit from retroactivity of the law. Eight-nine percent of these prisoners are black. Eugene Downs, who is African American, is just one of them.

Legislation to apply the Fair Sentencing Act retroactively has garnered bipartisan support in Congress. In 2015, the Judiciary committees in both the House and the Senate approved legislation that would have made Downs eligible for early release. Unfortunately, election-season politics and demagoguery from a handful of Republicans, including then-Sen. Jeff Sessions, doomed the bill.

There is some hope: Sens. Charles E. Grassley (R-Iowa) and Richard J. Durbin (D-Ill.) reintroduced the proposal last year with reforms that would reduce sentences for an even greater number of low-level drug offenses. Many of those provisions would be made retroactive. House Republicans have yet to reintroduce a similar bill in their chamber, but Speaker Paul D. Ryan (R-Wis.) has put criminal-justice reform on his list of priorities for 2018.

Still, President Trump has not indicated that he shares in the bipartisan enthusiasm for sentencing reform. While he recently convened a White House meeting with governors and conservative allies to extol the virtues of second chances and rehabilitation, his decision to put Sessions in charge of the Justice Department is not promising.

In any case, the retroactive application of the reformed sentencing laws should be an exception for “tough on crime” crusaders. Sometimes unfair laws punish people who deserve a second chance. We cannot allow the random day on which people are sentenced to prison be their primary obstacle to justice.

Regular readers surely know I am deeply sympathetic to the concept of giving broad retroactive effect to ameliorative changes in sentencing laws.  But the story of Eugene Downs strike me a bit peculiar in this context because, as noted in 2010 posts here and here, the Fair Sentencing Act was approved by both houses of Congress on July 28, 2010 and received plenty of media attention on July 29, 2010.   Arguably, one could blame Prez Obama for Eugene Downs' fate because he waited a week to sign the FSA.  Perhaps more properly, one should probably blame an attorney for Eugene Downs' fate for failing to seek a sentencing continuance in light of a pending critical legal change.

January 31, 2018 in Drug Offense Sentencing, New crack statute and the FSA's impact, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Mass molester Larry Nassar in state court for his third and final sentencing

When a person has committed a whole lot of serious crimes, he may well face a whole lot of serious sentencings.  Former doctor Larry Nassar is the latest high-profile example of this reality, and this AP piece reports that he is today in Michigan state court for his third sentencing proceeding.  Here are detail about this final sentencing and some of the continuing buzz about his last state sentencing:

The final sentencing hearing began Wednesday for disgraced former sports doctor Larry Nassar, who will again be confronted by scores of victims as he faces another prison sentence for molesting gymnasts at an elite Michigan club run by an Olympic coach.

Judge Janice Cunningham has set aside several days for roughly 60 people who want to confront Nassar or have their statement read in court. The hearing could unfold much the same as a hearing last week in another county where a different judge allowed more than 150 women and girls to confront Nassar about his abuse. That hearing ended with Nassar getting sentenced to 40 to 175 years in prison, with the judge describing it as Nassar's "death warrant."

The practice of allowing accusers to speak even if they are not tied directly to a case has raised questions about fairness. But attorneys say the victim statements probably pose little risk on appeal, especially since Nassar pleaded guilty, agreed to allow the statements and is expected to get another long prison sentence as part of his deal with prosecutors. "If you get what you bargained for, then you really can't argue that you were prejudiced in any way," said Margaret Raben, former leader of a Michigan association of criminal defense attorneys.

It's not uncommon for prosecutors to introduce "aggravating" evidence at sentencing to support their request for a severe punishment. But the parade of victims offering emotional accounts of their abuse to the face of an abuser went well beyond the typical hearing. Raben said there was a "horrible dynamic" last week in Judge Rosemarie Aquilina's courtroom, even if the judge had the option to allow so many people to speak in a case that involved just seven victims.

"Her obvious delight was just off the wall," Raben said, referring to Aquilina's "death warrant" remark and others. "I am not defending Larry Nassar at all, but what I saw with her was a real abandonment of judicial demeanor. ... The process doesn't change because everybody hates the defendant. That is the absolute glory, or should be, of the American justice system."

A fellow Ingham County judge, William Collette, said Aquilina's handling of the hearing was "outrageous." Others, however, have praised her treatment of victims and their parents.

The case on Cunningham's docket Wednesday in Eaton County centers on Nassar's assaults at Twistars, a Lansing-area gymnastics club that was run by 2012 Olympic coach John Geddert. Nassar admits penetrating three girls with his hands when he was supposed to be treating them for injuries.

So far, 57 victims want to speak in court or submit statements. Attorney Mick Grewal said 11 of his clients have signed up, including some who were inspired by the 150-plus young women and girls who appeared in Aquilina's court. He called it a "cathartic experience." "Now they're at a point in their healing process where they want to confront Larry, and they want to show the world that they are survivors and they are strong and they are part of this movement," Grewal said. "It helps them through the healing process."

He said the Nassar cases are extraordinary in the number of victims who have come forward. "The only case that's out there that's even similar in stature is Penn State, and this is now six times as big as Penn State, maybe seven times," Grewal said, referring to boys who said they were sexually abused by assistant football coach Jerry Sandusky.

Prior related posts:

January 31, 2018 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, January 30, 2018

A SCOTUS amicus opportunity to reiterate some of my views on sentence finality

The Supreme Court has three(!) upcoming arguments concerning the proper application of the federal prison term modification rules that Congress set out in 18 U.S.C. § 3582(c)(2): Hughes v. United States and Koons v. United States are due to be argued March 27, and Chavez-Meza v. United States will likely be argued in late April.  The fact that the SCOTUS has decided to take up three cases dealing with § 3582(c)(2) highlights the range of intricate issues that sentence modification motions can present.  And the first of these cases, Hughes, deals with the initial issue of who is even eligible for sentence modification and presents further questions about how to deal with the 4-1-4 divide among the Justices in the leading prior ruling of Freeman v. United States, 564 U.S. 522 (2011).

As readers know, I have written up some of my perspectives on "sentence finality" in an law review article, "Re-Balancing Fitness, Fairness, and Finality for Sentences", and in a number of prior posts (some of which are reprinted below).  I was encouraged recently to channel some of these ideas into an amicus brief in Hughes, and a terrific set of lawyers at Sidley Austin LLP played the leading and central role in making this amicus brief a reality.  Here is the "Summary of Argument" from this just-filed brief:

The standard presumption in favor of finality for criminal judgments need not and should not be elevated over other critical criminal justice interests when a defendant seeks only to modify an ongoing prison sentence based on new legal developments.  See Douglas A. Berman, Re-Balancing Fitness, Fairness, and Finality for Sentences, 4 Wake Forest J.L. & Pol’y 151, 174–75 (2014). Through sentence-modification provisions like the one at issue in this case, see 18 U.S.C. § 3582(c)(2), Congress has expressed its concerns for those other criminal justice interests by creating a significant sentencing exception to the usual presumption in favor of finality.  Appreciating the importance of getting sentences right while an offender is still serving a prison term, Congress has astutely elevated substantive sentencing goals like accuracy, fairness, and uniformity over concerns about finality in this context.  Section 3582(c)(2) serves well the purposes of fitness and fairness: its sentence-modification provisions eliminate unwarranted disparities in federal sentencing, promote the government’s legitimate substantive penological interests, foster societal respect for the criminal justice system, and save long-term costs associated with excessive terms of incarceration.

The question of statutory interpretation presented in this case, i.e., what does the term “based on” mean, should be resolved in favor of clear congressional policy and purpose. Defendants who commit crimes of similar severity under similar conditions should receive similar sentences.  When it is functionally apparent that a particular amended guideline was applicable in a defendant’s case, it ought not matter whether that defendant’s plea agreement contained calculations applying the since-reduced guideline.  A contrary interpretation, one that unnecessarily narrows eligibility for relief under § 3582(c)(2), would turn congressional policy on its head, wrongly elevate finality interests over those Congress sought to champion, and lead to systemic injustice.  The Court should take this opportunity to embrace a broad interpretation of “based on” that comports with overriding congressional policy.  Accordingly, petitioner should be eligible for relief under § 3582(c)(2) because his sentence was “based on” a Guidelines range that has been subsequently lowered.

Some (of many) prior posts on sentencing finality:

January 30, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Expansion of the Federal Safety Valve for Mandatory Minimum Sentences"

Download (7)The title of this post is the title of this relative short "Issue Brief" from FreedomWorks authored by Jason Pye and Sarah Anderson. The five-page document provides a basic overview of the federal statutory safety valve in 18 U.S.C. § 3553(f) which, as the brief explains, provides "an exception to mandatory minimum sentences for nonviolent drug offenders with little to no criminal history." Here are excerpts:

The Sentencing Reform Act, Sentencing Reform and Corrections Act, and the Smarter Sentencing Act proposed an expansion of eligibility for the safety valve by increasing the number of criminal history points an offender may have on his or her record.  The safety valve does not prevent an eligible offender from serving time in prison.  It does, however, reduce overcrowding and allows the limited number of prison beds to be used for violent criminals.  The safety valve also restores a partial measure of judicial discretion, allowing a judge to sentence below a statutory mandatory minimum, should the judge believe the sentence is too harsh for the offense committed....

Since the creation of the federal safety valve, more than 80,000 federal offenders have received fairer, more just sentences.  These lesser sentences for nonviolent, low-level drug offenders allow limited prison resources to be used on violent, repeat offenders who are true threats to public safety....

The proposed changes to the federal code to expand the safety valve to offenders who have up to three or four criminal history points, with exceptions for some of those points coming from more serious or violent offenses, is a modest, common sense change.  Nothing in the safety valve prevents judges from sentencing prisoners at or above the mandatory minimum even if they are eligible for the safety valve, but simply allows judicial discretion to ensure that prison resources are being used where they can best protect public safety, and not wasted on nonviolent, low-level drug offenders.

In the 115th Congress, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) has reintroduced the Sentencing Reform and Correction Act and Sen. Mike Lee (R-Utah) has reintroduced the Smarter Sentencing Act, both of which include an expansion of the federal safety valve.  Although the Sentencing Reform Act has not yet been reintroduced by House Judiciary Committee Chairman Bob Goodlatte (R-Va.), the Prison Reform and Redemption Act, sponsored by Rep. Doug Collins (R-Ga.) would serve as a likely vehicle for sentencing reforms similar to those found in the Sentencing Reform Act.

Should the House Judiciary Committee markup the Prison Reform and Redemption Act, FreedomWorks urges the committee to include an expansion of the federal safety valve that would allow judicial discretion in sentencing qualifying offenders to ensure that lengthy sentences and prison resources are spent on criminals who represent a serious threat to our communities. 

In addition to being a helpful review by a notable organization of one piece of the federal sentencing system, this document strikes me a timely and astute effort to start building the case for incorporating at least a little bit sentencing reform into the prison reform efforts that now are gaining steam in Congress. Because it appears to have the blessing of Prez Trump and maybe even Attorney General Sessions, the Prison Reform and Redemption Act right now looks like the proposed federal legislation with the greatest chance of enactment. This Issue Brief wisely highlights why it would be a wise decision to add a modest sentencing reform provision into that proposal.

January 30, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, January 29, 2018

Mapping out what Beckles left unresolved: Johnson's uncertain impact on the once-mandatory career-offender guideline

Leah Litman and Samantha Jaffe have this great new entry at the Take Care website under the heading "The Mandatory Guidelines Predicament."  It seeks to explain the still lingering issue of how the Supreme Court's 2015 Johnson vagueness ruling still impacts a certain subset of federal prisoners sentenced more than a decade earlier.  I recommend the piece in full, and here is a taste:

In Johnson v. United States, the Supreme Court held ACCA’s residual clause unconstitutionally void for vagueness.  ACCA imposes a 15-year minimum for defendants with three prior “violent felony” convictions.  ACCA’s residual clause defined “violent felony” as any felony that “involves conduct that presents a serious potential risk of physical injury to another.”  The next term, Welch v. United States announced that Johnson was a substantive rule that applied retroactively....

The Sentencing Guidelines contain a provision known as the career-offender guideline. The career-offender guideline helps calculate a defendant’s criminal history score, which, in combination with a defendant’s offense level, yields the defendant’s sentencing range. The career-offender guideline has a residual clause that is worded the same way as ACCA’s (unconstitutional) residual clause. In Beckles, the Court held that the career-offender guideline’s residual clause was not unconstitutionally vague because the advisory federal Sentencing Guidelines are not subject to vagueness challenges.

The Sentencing Guidelines, however, weren’t always advisory.... The pre-Booker Guidelines thus functioned a lot like statutes that impose mandatory sentences.  Nevertheless, there are still differences between the pre-Booker Guidelines and statutes.  Even when the Guidelines were mandatory, the Guidelines explicitly allowed courts to reduce a defendant’s recommended sentencing range if the court determined the defendant’s criminal history “substantially over-represent[ed] the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.”  In other words, even under “mandatory” Guidelines, courts could depart from the sentencing range. In contrast, courts couldn’t depart from a mandatory minimum under ACCA.  The Guidelines also include seven factors that a sentencing court must consider, which builds in flexibility. These factors include the nature of the offense and history of the defendant, the types of sentences available, and how the sentence serves the values of deterrence, incapacitation, retribution, and rehabilitation. That said, in spite of those differences, the pre-Booker mandatory Guidelines functioned a lot like statutory minimums.

Despite the similarities between mandatory Guidelines and statutes fixing sentences, the courts of appeals have not been particularly receptive to challenges to the mandatory Guidelines....  Let’s imagine that the Supreme Court wants to say, at some point, that the mandatory Guidelines’ residual clause is unconstitutionally vague.  It’s not clear how many opportunities the Court will have to do so, assuming it’s even interested.  AEDPA sharply limits the Supreme Court’s ability to review court of appeals’ denials of authorization to file second or successive resentencing motions.  AEDPA does not permit petitioners to file petitions for certiorari from decisions denying authorization to file a second or successive authorization.  The only path to review in the Supreme Court are so-called “original writs,” which are rarely granted and, to date, have remained only a theoretical possibility for reviewing second or successive resentencing motions.

That’s a problem because it is likely that almost all cases involving the mandatory Guidelines will be second or successive resentencing motions.  The Guidelines have been advisory since the Supreme Court’s 2005 decision in Booker, so it’s not likely that many prisoners sentenced *before 2005* have yet to file a single section 2255 motion.

The petitioner in Raybon is one of the rare exceptions, although there is also another, similar case in the Fourth Circuit.  If the Court wants to do something about prisoners sentenced under the mandatory Guidelines, it may want to seriously consider granting certiorari in Raybon even though there’s a vehicle problem.... And acting sooner rather than later is important, given that the essence of these claims is that the prisoners are serving more time in prison than they should be.

January 29, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

"The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges"

The title of this post is the title of this notable new empirical article authored by Will Dobbie, Jacob Goldin and Crystal Yang appearing in the American Economic Review. Here is the abstract:

Over 20 percent of prison and jail inmates in the United States are currently awaiting trial, but little is known about the impact of pretrial detention on defendants.  This paper uses the detention tendencies of quasi-randomly assigned bail judges to estimate the causal effects of pretrial detention on subsequent defendant outcomes.  Using data from administrative court and tax records, we find that pretrial detention significantly increases the probability of conviction, primarily through an increase in guilty pleas.  Pretrial detention has no net effect on future crime, but decreases formal sector employment and the receipt of employment- and tax-related government benefits.  These results are consistent with (i) pretrial detention weakening defendants' bargaining positions during plea negotiations and (ii) a criminal conviction lowering defendants' prospects in the formal labor market.

January 29, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, January 28, 2018

Noticing that ALEC is now joining growing calls for reforming drug-free zone laws

Regular readers likely remember some recent and many older posts discussing the problems with drug-free zone laws that can sometimes result in first-time and low-level drug offenders facing and receiving extreme prison sentences when just happening to be inadvertently in the wrong place at the time of their offense.  Via this post at Reason, headlined "ALEC Urges State to Reform Drug-Free School Zone Laws," I see that a not-so-usual suspect is now calling for the reform of these laws. Here are the details (with links from the original):

The American Legislative Exchange Council (ALEC), a conservative, pro-business organization that drafts model bills for state legislatures, passed a resolution Friday urging states to reform their drug-free school zone laws.  The conservative group is the latest in a growing bipartisan chorus opposing punitive drug-free school zone laws, which exist in all 50 states and the District of Columbia.

"Most Drug-Free Zone laws were established decades ago," the resolution says, "but have not been reformed despite evidence that Drug-Free Zones are arbitrary and often unnecessarily broad, are ineffective at deterring drug- related crime, and create significant unintended consequences, including unwarranted disparate impacts on minority defendants."

That's exactly what a December Reason investigation into Tennessee's Drug-Free School Zone Act found.  Tennessee's drug-free school zones extend 1,000 feet from the real property of every school, library, park, and daycare in the state. Using GIS data obtained from the state, Reason found there were 8,544 separate drug-free zones in Tennessee, amounting to 5 percent of the overall area of the state and 26 percent of urban areas.

Those enhanced sentencing zones were rarely, if ever, used to prosecute drug crimes involving children, according to interviews with prosecutors and defense attorneys. But they did result in first-time and low-level drug offenders receiving longer prison sentences than if they had been found guilty of second-degree murder or rape. Sentencing data also showed wide racial disparities in who received drug-free school zone sentences, with blacks making up 69 percent of all current inmates serving time for violations of the act, despite only making up 17 percent of the state population. The zones, which tend to cluster in low-income and minority neighborhoods, also give prosecutors immense leverage to squeeze plea deals out of defendants.

Several states have passed reforms to their laws over the past decade, shrinking the size and number of zones. The Tennessee legislature is considering a similar reform this year to shrink its zones from 1,000 feet to 500 feet. A bipartisan group of civil liberties and criminal justice organizations are supporting the bill, such as Families Against Mandatory Minimums (FAMM). Conservative lawmakers recognize that drug-free school zone laws have proven to be a costly failure," FAMM president Kevin Ring said in a statement on the ALEC resolution. "These laws stick low-level offenders with long sentences even when no children are involved and, as a result, they waste resources that could be better spent on more serious offenders."

A few of many prior related posts:

January 28, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, January 26, 2018

SCOTUS (surprisingly?) stays scheduled Alabama execution

As reported in this local article, headlined "Execution called off for Alabama inmate Vernon Madison," the Supreme Court last night got in the way of a state's effort to carry out a death sentence for a man first convicted of killing a police office back in 1985(!). Here are some details and background:

Vernon Madison, one of the longest serving inmates on Alabama's Death Row, was scheduled to be executed at 6 p.m. Thursday, but 30 minutes before the scheduled execution the U.S. Supreme Court issued a temporary stay. The stay was later granted, and Madison's execution called off.

Madison, 67, has been on death row for over 30 years after being convicted in April 1985 of killing Mobile police Cpl. Julius Schulte. He was set to die by lethal injection at Holman Correctional Facility in Atmore Thursday night, but escaped execution for the second time via a court order.

Madison was 34 when he was charged Schulte's death, who was responding to a domestic disturbance call. Madison also was charged with shooting the woman he lived with at the time, 37-year-old Cheryl Ann Greene. She survived her injuries....

Madison's first trial took place in September 1985. He was convicted, but a state appellate court sent the case back for a violation involving race-based jury selection. His second trial took place in 1990. Prosecutors presented a similar case, and defense attorneys again argued that Madison suffered from a mental illness. They did not dispute the fact that Madison shot Schulte, but said he did not know that Schulte - dressed in plain clothes and driving an unmarked police cruiser - was a police officer.

He was again convicted, and a jury recommended a death sentence by a 10-2 vote. An appellate court again sent the case back to Mobile County for a retrial, this time based on improper testimony from an expert witness for the prosecution.

His third and final trial took place in April 1994. He was convicted, and the jury recommended a life sentence after both Madison and his mother, Aldonia McMillan, asked for mercy. Mobile County Circuit Judge Ferrill McRae sentenced Madison to death-- this time overriding the jury's recommendation.

In April 2017, Gov. Kay Ivey signed into law a bill that says juries, not judges, have the final say on whether to impose the death penalty. That law officially ended Alabama's judicial override policy, as Alabama was the last state to allow it.

Late Wednesday, Madison's attorneys filed two more petitions to the U.S. Supreme Court-- an application for a stay of execution, and a petition for a writ of certiorari focused on the issue of judicial override. Madison's attorneys argued that since he was sent to death under the judicial override statue, he is entitled to a stay and a review of his case. Attorneys filed similar motions to the Alabama Supreme Court, but they denied the request earlier Wednesday. "Because a death sentence is no longer permissible in cases where the jury has returned a sentence of life, Mr. Madison filed a challenge to his death sentence and scheduled execution in the Alabama Supreme Court. He contended that this execution would be arbitrary and capricious and constitute a violation of the Sixth, Eighth and Fourteenth Amendment," the petition states. "The judicial override in this case resulted in a death sentence that is arbitrary, disproportionate, and unconstitutional..." Madison was first scheduled to be executed by lethal injection in May 2016, but there was a temporary delay. Hours after that execution's scheduled time, the U.S. Supreme Court issued a ruling upholding an 11th Circuit Court of Appeals stay of execution. The AG's Office filed responses in opposition to those petitions. In November 2017, the U.S. Supreme Court unanimously reversed that decision, paving the way for Madison to be executed.

Last month, Madison's attorneys from the Equal Justice Initiative filed a petition in Mobile County court to stay Madison's execution, but after a hearing the judge in that case denied the request for a stay of execution. Bryan Stevenson, founder of the EJI and one of Madison's attorneys, then filed two new petitions to the U.S. Supreme Court: One for a stay of execution, and one asking the court to review the case. The AG's Office also filed responses to those requests....

Around 5:30 p.m., the U.S. Supreme Court issued a temporary stay of execution, but the stay was granted at 8:10 p.m. Madison will not be executed Thursday night, and the AG's office must request a new execution date from the state supreme court.

The Supreme Court's order states the stay is in place until the justices decide whether they will grant Madison's writ of certiorari, or if they will review the case. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would deny the application for stay, the order said.

Without seeing all the filings, it is hard for me to tell at this stage whether this stay could be a big deal for death penalty jurisprudence generally. But it is obviously a big deal for any and everyone connected to this defendant, his victims and perhaps all capital lawyers in Alabama.

UPDATE: A commentor and a tweet alerted me to this report from Chris Geidner at BuzzFeed News headlined "The Supreme Court Stopped Alabama From Executing A Man Over Competency Questions." Here is how this piece accounts for the stay:

The Supreme Court on Thursday night halted the scheduled execution of Vernon Madison, who was set to face lethal injection in Alabama for the 1985 murder of a police officer.

The stay of execution was granted by the court while the justices consider whether to take up Madison's case in which his lawyers argue he is no longer competent to face execution, noting this he has been diagnosed with vascular dementia and "is unable to recollect the sequence of events from the offense, to his arrest, to his trial and can no longer connect the underlying offense to his punishment." Alabama's lawyers opposed the request.

Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch noted that they would have allowed the execution to proceed. At least five justices had to vote to grant the stay of execution, but justices do not have to announce their vote on stay applications like Madison's stay request, so the exact vote tally — and the votes of the other justices — is not known publicly.

I have changed the title of this post to reflect my own uncertainty about the stay's terms.

January 26, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Still more notable commentary on judicial conduct in sentencing of mass molestor

Perhaps unsurprisingly, lots of folks are still discussing Larry Nassar's state sentencing (basics here), with a number of commentators taking issues with the judge's comments while imposing his sentence and others praising how the entire sentencing was handled.  Here is just a sampling of some of what has caught my eye on this front:

My own thoughts on this matter keep returning to the essential fact that Nassar's state sentencing was much more symbolism than substance from the very start given that he had already received a functional LWOP sentence in federal court AND the fundamentals of his state sentence were largely established by his plea bargain. In this context, I suppose it is not too surprising that so many folks are so caught up in the particulars of the symbolism of how the judge conducted this unique sentencing hearing and spoke sharply to the defendant. But I still find myself ultimately much more interested by and concerned about the work of sentencing judges when it really makes a substantive difference.

Prior related posts:

January 26, 2018 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11)

Thursday, January 25, 2018

"How IQ Tests Are Perverted to Justify the Death Penalty"

The title of this post is the headline of this new Pacific Standard commentary.  Here are excerpts:

The Supreme Court has slowly been carving out exemptions to the death penalty for people with intellectual disabilities.  In 2002, the Supreme Court ruled in Atkins v. Virginia that people with intellectual disabilities could not be executed, but left it up to the states to determine who is or is not eligible for that protection.  In 2014, in Hall v. Florida, the court ruled that a state can't use a simple IQ cut-off.  Then, in last year's Moore v. Texas, the court ruled that states must consider the best psychiatric and medical information about disability when determining disabled status.  Still, IQ testing continues to play a major role, with a threshold of around 70 serving as the cutoff score, below which a person cannot legally be executed.

Here's where "ethnic adjustments" come in.  The practice, as documented by attorney Robert Sanger in a 2015 article in the American University Law Review [available here], adjusts IQ scores upward for people of color convicted of capital crimes.  According to Sanger, prosecutors in Florida, Texas, Alabama, Tennessee, Missouri, California, Pennsylvania, and Ohio have all used ethnic adjustments to successfully impose the death penalty on people who otherwise might have been deemed exempt.  In his article, Sanger works methodically through case after case, noting in particular the role played by expert witnesses for the prosecution, who testify to the racial biases of IQ testing. In most cases, these experts have never met the person convicted of the capital crime or assessed that person for disability, even as their testimony clears the way for execution.

At the end of his article, Sanger writes, "The idea of racially classifying a person and then using 'ethnic adjustments' to increase his or her IQ score, thereby qualifying that person for execution, is logically, clinically, and constitutionally unsound.  In fact, when looked at more closely, it is a wonder how the practice has gone largely unchallenged over the last few years."  When I spoke to him over the phone, Sanger confirmed to me that no clear constitutional challenge to the practice has emerged to his knowledge, and certainly not at the United States Supreme Court, or in California, where he practices law.

January 25, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

Wednesday, January 24, 2018

Highlighting comments, commentary and consequences from state sentencing of mass molester Larry Nassar

The nature of Larry Nassar's crimes and of his victims contributed to his state sentencing earlier today (basics here) garnering lots and lots of attention.  I suspect in days to come we may see continuing commentary about Nassar's crimes and their enduring consequences, and tonight I thought to highlight a few particulars already garnering attention.

First, certain comments made by the state judge at sentencing have prompted an array of reactions, and so I thought it useful to link here to a full transcript of the judge's full comments at sentencing.  I think it is fair to call everything about the Nassar case remarkable, and the judge's sentencing statement also merits that adjective.

Second, and speaking of the judge and her sentencing comments, over at Slate Mark Joseph Stern already has this notable commentary headlined "Larry Nassar’s Victims Deserved a Judge Like Rosemarie Aquilina."  The piece closes with these lines: "The result was impassioned and imperfect.  It was also what Larry Nassar deserved."

And third, this local article reports on a noteworthy consequence of Nassar's crimes: "Michigan State President Lou Anna Simon resigns hours after Nassar sentencing."  I hesitate calling the MSU Prez another victim of Nassar, but I do not hesitate predicting that Nassar's crimes will reverberate in many ways and in many areas for quite some time to come.

Prior related posts:

January 24, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (9)

"Who Killed Habeas Corpus?"

The title of this post is the title of this short paper authored by US District Judge Lynn Adelman recently made available to SSRN that a helpful reader made sure I did forget to post. Here is the abstract:

This article discusses the recent history of the writ of habeas corpus, once known as the Great Writ of Liberty, and concludes that the end result has been tragic.  Because of unwise decisions made by all three branches of government, Congress, the President, and the Supreme Court, the writ has largely been destroyed as an effective remedy for individuals who are imprisoned as a result of a violation of their federal constitutional rights by a state court.  The article notes that under Chief Justices Burger and Rehnquist the Supreme Court established a number of restrictions on the right of state prisoners to obtain federal habeas review.

Then, in 1996, a Republican Congress passed an extremely repressive bill entitled the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) that imposed additional restrictions on the Great Writ.  Particularly objectionable are provisions requiring federal courts to defer to erroneous but reasonable state court interpretations of the Constitution and barring federal courts from relying on any authority other than clearly established Supreme Court precedent. Sadly, over the objections of habeas scholars, civil libertarians, and his own counsel, President Clinton signed the bill into law.

Since then, the Supreme Court has consistently interpreted the law so as to make it even more harmful to prisoners seeking to overturn unconstitutionally obtained state convictions.  The article contends that the loss of habeas corpus is profound because the writ is urgently needed.  This is so because, as state judicial elections have become increasingly contested, increasingly partisan, and increasingly well-financed, it is increasingly difficult for state court judges, who unlike federal judges do not have life tenure, to protect criminal defendants’ constitutional rights. As a result, too many people spend too many years in prison as a result of convictions involving violations of their constitutional rights.

January 24, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation

As reported here by the AP, Larry Nassar after a lengthy state sentencing hearing "was sentenced Wednesday to 40 to 175 years in prison as the judge declared: 'I just signed your death warrant'."  Here is more from the AP:

The sentence capped a remarkable seven-day hearing in which scores of Larry Nassar's victims were able to confront him face to face in a Michigan courtroom. Judge Rosemarie Aquilina said Nassar's "decision to assault was precise, calculated, manipulative, devious, despicable."

"It is my honor and privilege to sentence you. You do not deserve to walk outside a prison ever again. You have done nothing to control those urges and anywhere you walk, destruction will occur to those most vulnerable."

Nassar found competitive gymnastics to be a "perfect place" for his crimes because victims saw him as a "god" in the sport, a prosecutor said Wednesday, shortly before the former doctor was to be sentenced for years of molesting Olympic gymnasts and other young women. "It takes some kind of sick perversion to not only assault a child but to do so with her parent in the room," prosecutor Angela Povilaitis said. "To do so while a lineup of eager young gymnasts waited."

She described the "breadth and ripple" of Nassar's sexual abuse as "nearly infinite." "What does it say about our society that victims of sexual abuse have to hide their pain for years when they did nothing wrong? What does it say about our society when victims do come forward ... and are treated as liars until proven true?" Povilaitis said.

Nassar turned to the courtroom gallery to make a brief statement, saying that the accounts of more than 150 victims had "shaken me to my core." He said "no words" can describe how sorry he is for his crimes. "I will carry your words with me for the rest of my days" he said as many of his accusers wept....

Nassar, 54, pleaded guilty to assaulting seven people in the Lansing area, but the sentencing hearing has been open to anyone who said they were a victim. His accusers said he would use his ungloved hands to penetrate them, often without explanation, while they were on a table seeking help for various injuries.

The accusers, many of whom were children, said they trusted Nassar to care for them properly, were in denial about what was happening or were afraid to speak up. He sometimes used a sheet or his body to block the view of any parent in the room. "I'd been told during my entire gymnastics career to not question authority," a former elite gymnast, Isabell Hutchins, said Tuesday....

Nassar has already been sentenced to 60 years in federal prison for child pornography crimes. He is scheduled to be sentenced next week on more assault convictions in Eaton County, Michigan.

Though not made clear in this AP piece, I am inclined to presume this 40 to 175 year sentence is the maximum permitted under state law. I would be grateful to hear from any Michigan state sentencing experts as to whether this was a max sentence and also why a mass molestation such as this one produces a state sentence with a lower range that is shorter than the federal prison sentence Nassar already received for child porn offenses.

Prior related posts:

UPDATE A helpful commentor noted below that the 40-year minimum sentence imposed here was the maximum bottom-range term provided for in Nassar's state plea agreement.  And, of course, because Nassar would have to live well past 100 to even have a chance of completing the current federal sentence he is serving, the particulars of his state sentence are not really of any significant practical consequence.

January 24, 2018 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Thursday, January 18, 2018

New research findings by computer scientists "cast significant doubt on the entire effort of algorithmic recidivism prediction"

F1.mediumThis notable new research article in the latest issue of Science Advances provides a notable new perspective on the debate over risk assessment instruments. The article is authored by computer scientists Julia Dressel and Hany Farid and is titled "The accuracy, fairness, and limits of predicting recidivism."  Here are parts of its introduction:

In the criminal justice system, predictive algorithms have been used to predict where crimes will most likely occur, who is most likely to commit a violent crime, who is likely to fail to appear at their court hearing, and who is likely to reoffend at some point in the future.

One widely used criminal risk assessment tool, Correctional Offender Management Profiling for Alternative Sanctions (COMPAS; Northpointe, which rebranded itself to “equivant” in January 2017), has been used to assess more than 1 million offenders since it was developed in 1998. The recidivism prediction component of COMPAS — the recidivism risk scale — has been in use since 2000.  This software predicts a defendant’s risk of committing a misdemeanor or felony within 2 years of assessment from 137 features about an individual and the individual’s past criminal record.

Although the data used by COMPAS do not include an individual’s race, other aspects of the data may be correlated to race that can lead to racial disparities in the predictions. In May 2016, writing for ProPublica, Angwin et al. analyzed the efficacy of COMPAS on more than 7000 individuals arrested in Broward County, Florida between 2013 and 2014.  This analysis indicated that the predictions were unreliable and racially biased.  COMPAS’s overall accuracy for white defendants is 67.0%, only slightly higher than its accuracy of 63.8% for black defendants.  The mistakes made by COMPAS, however, affected black and white defendants differently: Black defendants who did not recidivate were incorrectly predicted to reoffend at a rate of 44.9%, nearly twice as high as their white counterparts at 23.5%; and white defendants who did recidivate were incorrectly predicted to not reoffend at a rate of 47.7%, nearly twice as high as their black counterparts at 28.0%. In other words, COMPAS scores appeared to favor white defendants over black defendants by underpredicting recidivism for white and overpredicting recidivism for black defendants....

While the debate over algorithmic fairness continues, we consider the more fundamental question of whether these algorithms are any better than untrained humans at predicting recidivism in a fair and accurate way.  We describe the results of a study that shows that people from a popular online crowdsourcing marketplace — who, it can reasonably be assumed, have little to no expertise in criminal justice — are as accurate and fair as COMPAS at predicting recidivism. In addition, although Northpointe has not revealed the inner workings of their recidivism prediction algorithm, we show that the accuracy of COMPAS on one data set can be explained with a simple linear classifier.  We also show that although COMPAS uses 137 features to make a prediction, the same predictive accuracy can be achieved with only two features. We further show that more sophisticated classifiers do not improve prediction accuracy or fairness. Collectively, these results cast significant doubt on the entire effort of algorithmic recidivism prediction.

A few (of many) prior related posts on risk assessment tools:

January 18, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

"Rate My District Attorney: Toward a Scorecard for Prosecutors’ Offices"

The title of this post is the title of this notable new report recently released by the Stanford Criminal Justice Center and authored by Katherine Moy, Dennis Martin, and David Alan Sklansky. Here is its executive summary:

Local prosecutor elections can have uniquely consequential results for the American criminal justice system. Paradoxically, however, these elections attract much less voter engagement than other races, and incumbents are repeatedly re-elected.  As a result, activists seeking to convince prosecutors to pursue reforms, or to elect new reform-minded prosecutors, have a hard time communicating just how well a given office is performing.

A prosecutorial rating system is one approach to remedying this information gap. Much like indices used in other public policy areas, such a rating system could be a critical way of communicating to voters and potential electoral challengers whether a prosecutors’ office has effectively pursued the electorate’s policy priorities.

This report begins to chart a path toward building such a rating system.  Drawing on the expertise of experienced public policy index developers, the report outlines a procedure that developers can follow to design and build their own scorecard.  The process described in the report involves several stages, during which developers will need to grapple with key policy and logistical issues.

Although the contours of the process are flexible, the report lays out the following steps to developing a prosecutorial rating system:

1) Gather key personnel and experts and set project benchmarks.

2) Define the index’s goals and target audience, including any intermediaries that might be enlisted to convey the index’s message.

3) Select the variables the index will use to measure performance and decide how much weight to attribute to each variable.

4) Gather data for each variable, including any proxy measurements to use where direct data is unavailable.

5) Aggregate and normalize the data in a coherent, rigorous, digestible format.

6) Disseminate and build support for the index.

Each of these stages involves complex decisions, many of which may need to be revisited throughout the development process. But walking through each of the stages methodically can help highlight areas of dispute and place in a broader procedural context.  By keeping the index’s overall goals in mind as they work through the minute details of each stage, developers are more likely to be able to create a successful index to help meet their reform objectives. 

January 18, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Massachusetts Supreme Judicial Court unanimously rejects constitutional attack on consideration of victim impact statements at sentencing

The Massachusetts Supreme Judicial Court handed down a notable short ruling today in Massachusetts v. McGonagle, SJC-12292 (Mass. Jan. 18, 2018) (available here). Here is how the unanimous opinion starts and ends:

General Laws c. 258B, § 3 (p), permits "victims . . . to be heard through an oral and written victim impact statement at sentencing . . . about the effects of the crime on the victim and as to a recommended sentence."  We transferred this case here on our own motion to answer two questions: first, whether the United States Supreme Court's recent decision in Bosse v. Oklahoma, 137 S. Ct. 1 (2016) (per curiam), precludes a sentencing judge from considering victim impact statements "as to a recommended sentence" under the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights; and second, whether the sentencing recommendation provision violates the defendant's constitutional guarantee of due process.  We conclude that a sentencing judge's consideration of victim impact statements "as to a recommended sentence" is constitutional because the concerns underpinning the Supreme Court's treatment of victim impact statements before a jury during the sentencing phase of a capital murder trial differ from those at issue here.  We further conclude that a victim's right to recommend a sentence pursuant to G. L. c. 258B, § 3 (p), satisfies the requirements of due process. We therefore answer both questions in the negative and affirm....

"Few, perhaps no, judicial responsibilities are more difficult than sentencing. The task is usually undertaken by trial judges who seek with diligence and professionalism to take account of the human existence of the offender and the just demands of a wronged society."  Rodriguez, 461 Mass. at 259, quoting Graham v. Florida, 560 U.S. 48, 77 (2010).  The concerns underlying the Supreme Court's holdings in Booth and Bosse, that sentencing decisions not be made based on emotion, apply in nearly every sentencing decision.  They raise an important caution. When a crime victim recommends a particular sentence to a judge, that judge must dispassionately consider that recommendation, cognizant that the sentencing decision is the judge's and the judge's alone.  We expect judges to make sentencing decisions devoid of emotion, prejudice, and the relative status of a particular crime victim.

We all stand equal before the bar of justice, and it is neither cruel nor unusual or irrational, nor is it violative of a defendant's due process guarantees, for a judge to listen with intensity to the perspective of a crime victim.  We affirm.

UPDATE: Not long after noting this case, it dawned on me that this posting might be a fitting place to link this compelling account from the Washington Post of all the compelling victim impact testimony being offered in a high profile case in Michigan this week.  The extended article is headlined "At Larry Nassar sentencing hearing, a parade of horror and catharsis," and here is the context:

Nearly a year and a half after one woman filed a police report and contacted a newspaper, the criminal cases against Larry Nassar are nearing an end this week with a marathon sentencing hearing — 105 of the more than 130 girls and women who’ve accused Nassar of abuse are expected to speak — that began Tuesday and could end Friday, before a judge levies a sentence for seven sex crimes Nassar has admitted to as part of a plea deal.

January 18, 2018 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, January 17, 2018

Taking a critical look at recent report on "Federal Prosecution of Commercial Sexual Exploitation of Children Cases"

Guy Hamilton-Smith has this notable new piece at In Justice Today discussing a new Bureau of Justice Statistics report. The BJS report, available here, is titled "Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004-2013." Guy Hamilton-Smith's critical assessment, available here, is titled "New DOJ Report Demonstrates Stunning Disingenuity on Cases Involving Sexual Exploitation of Children." Here is how the commentary starts and additional excerpts with a sentencing bite:

A recent bombshell report from the Department of Justice claims that the number of people prosecuted in federal court for commercial sexual exploitation of children roughly doubled between 2004 and 2013.

The title of the report from the DOJ’s Bureau of Justice Statistics, Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004–2013, conjures the specter of children being forced into sexual slavery. The titling and framing of the report leaves a casual reader with the impression that more and more children are falling victim to commercial sex offenses  —  such as sex trafficking  —  and that DOJ has placed a high priority on prosecuting these offenses.

The actual data contained within the report itself, however, merits no such dramatic conclusion. The DOJ defines the phrase the “commercial sexual exploitation of children” (CSEC) as involving “crimes of a sexual nature committed against juvenile victims for financial or other economic reasons,” the obvious implication being that these “CSEC” defendants are directly involved in the trafficking of children for sexual purposes. However, according to the BJS’ own data, the vast majority of the defendants charged with CSEC offenses were accused, not of producing of child pornography or of child sex trafficking, but of consuming child pornography, including images of cartoon obscenity....

The growth in these types of child pornography prosecutions is not necessarily indicative of an increase in rates of offending.  Rather, it is more likely the result of law enforcement’s ability to secure confessions and convictions with relatively little effort. In the vast majority of these cases, investigators monitor peer-to-peer networks for hash values of images that are known to be child pornography, serve administrative subpoenas on service providers for records associated with those IP addresses, and knock on front doors with search warrants. Defenses are usually slim to none. Guilty pleas are exceedingly common: The BJS data reveals that 92.5% of defendants prosecuted in federal court for possession, receipt, or distribution of child pornography pled guilty.

Including such defendants under the banner of “CSEC” is sloppy at best and disingenuous at worst.  While the DOJ’s commitment to battling commercial sexual exploitation of children is admirable, their framing and presentation of the data as implication of an epidemic is at odds with the numbers themselves.

Underscoring the need for clarity and objectivity is the fact that defendants prosecuted for non-production child pornography offenses are amongst the most harshly punished defendants in all of the federal system. The report indicates that they are the least likely of all federal defendants to be given non-custodial sentences, even over and above violent and weapon offenses, and that "Prison sentences imposed on defendants convicted of CSEC offenses were among the longest in the federal justice system. The mean prison sentence imposed on convicted CSEC defendants increased by 99% from 2004 to 2013, from 70 to 139 months."

Sentences to the north of a decade are routine for CSEC defendants by virtue of the United States Sentencing Guidelines. These provide a recommended “range” in months of imprisonment based on both the severity of an offense and a person’s criminal history. Offenses, depending on specific characteristics of how they are committed, can receive enhancements that result in lengthier terms of imprisonment.

There are a number of significant sentencing enhancements for child pornography cases which are routinely applied. These may have held some rough logic in an era before Google, but they make little sense now. Use of a computer? Enhancement.  More than ten images?  Enhancement.  Distribution, even unintentional distribution, as discussed above?  Enhancement. More than 10 images (note that a video file, regardless of length, is counted as 75 images)? Enhancement.  Sentence enhancements are piled on such that, even for those individuals with no criminal record and no evidence they sexually assaulted a child, the recommended sentences can easily dwarf the statutory maximum sentences.

No other class of offense in the federal system (or, indeed, in many states) is characterized by such extreme sentences.  As courts have noted, there is virtually no empirical or reasoned bases for any of these enhancements beyond naked revulsion and desire for retribution. Some scholars have suggested that such severe punishments represent punishment by proxy. In other words, they are intended to obscure and compensate for the failure of law enforcement to investigate and prosecute actual cases of child sexual trafficking and commercial exploitation. In seeking to justify such draconian punishments even for “end users,” prosecutors and others (including courts) have advanced a market theory  —  that even possession of such images drives a market for child pornography.  The United States Sentencing Commission, in a 2012 report to Congress, noted that such arguments are without empirical support. Notably, similar arguments were made in support of harsh treatment of drug addicts in the 1970’s and 80’s as a way of winning the war on drugs.

Whatever the underlying rationale, the draconian nature of these sentences has attracted attention and push back in recent years, including from an extremely unlikely group: federal judges, some of whom are recognizing the inherent unfairness of enhancements for these types of offenses, and beginning to impose sentences far more lenient than those recommended by the guidelines.

Equating garden variety child pornography defendants with child sex traffickers is an abdication of reason and rationality. Unfortunately, the DOJ has not signaled any intention of reversing course.  Rather, if the trends in the report are any indication, it appears to be accelerating the use of what might justifiably be described as a prosecutorial machine that crushes defendants in child pornography possession cases, while failing to even charge far more culpable defendants.

January 17, 2018 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (5)

Tuesday, January 16, 2018

"A Smarter Approach to Federal Assistance with State-Level Criminal Justice Reform"

The title of this post is the title of this notable new paper authored by John Pfaff for the American Enterprise Institute. Here is its abstract:

This brief explains how Congress and the president can best help reduce our country’s outsized reliance on imprisonment, a goal with rare, widespread bipartisan support.  Successful interventions will need to target issues that previous efforts have overlooked or ignored, and they will need to take better account of the haphazard ways that costs, benefits, and responsibilities are fractured across city, county, state, and federal governments.  If designed properly, however, federal efforts could play an important role in pushing our criminal justice system to adopt more efficient, as well as more humane, approaches to managing and reducing crime.

January 16, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Sunday, January 14, 2018

"How to make an innocent client plead guilty"

The title of this post is the headline of this depressing and depressingly familiar tale told by public defender Jeffrey D. Stein in The Washington Post.  Here is an excerpt:

The conversation almost always begins in jail.  Sitting with your client in the visitation room, you start preparing them for the most important decision the person has ever made.  Though the case is just a few days old, the prosecution has already extended a plea offer that will expire within the week.  And, because local laws might require detention for certain charges at the prosecutor’s request, or because criminal justice systems punish those unable to pay bail, your client will have to make that decision while sitting in a cage.

Your client is desperate, stripped of freedom and isolated from family.  Such circumstances make those accused of crimes more likely to claim responsibility, even for crimes they did not commit.  A 2016 paper analyzing more than 420,000 cases determined that those who gained pretrial release were 15.6 percentage points less likely to be found guilty.  Not surprisingly, prosecutors commonly condition plea offers on postponing hearings where defendants may challenge their arrests and request release....

You lay out options for your client.  You could go to trial, but that might mean waiting in jail for months, if not years, before a jury hears the case.  The idealist in you — the one who enrolled in law school to “change the system” and to fight for justice on behalf of those who need it most — hopes your client will proclaim a decision to go to trial.  But a wary voice in the back of your head reminds you of the risk and life-altering consequences of losing....

The other option, you explain to your client, is to accept the plea offer.  In some cases, the sentencing difference between accepting a plea and losing at trial can be a matter of decades.  It’s no wonder 95 percent of all defendants accept plea offers.  Or that, according to the National Registry of Exonerations, 15 percent of all exonerees — people convicted of crimes later proved to be innocent — originally pleaded guilty.  That share rises to 49 percent for people exonerated of manslaughter and 66 percent for those exonerated of drug crimes.

You tell your client that they would probably win at trial, but if they lose, they will go to prison. The plea promises some meaningful benefit: getting out of jail sooner, avoiding deportation, not losing a job, seeing a daughter before her next birthday.  But your client would have to accept responsibility for a crime they may not have committed....

The judge turns to you and asks, “Does either counsel know of any reason that I should not accept the defendant’s guilty plea?” You hesitate.  You want to shout: “Yes, your honor! This plea is the product of an extortive system of devastating mandatory minimums and lopsided access to evidence.  My client faced an impossible choice and is just trying to avoid losing his life to prison.”

But you stand by your client’s decision, which was made based on experiences and emotions only they can know.  You reply: “No, your honor.”  The marshals lead your shackled client to a cage behind the courtroom.  And the judge moves on to the next case.

January 14, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Saturday, January 13, 2018

Campaign to recall Brock Turner's sentencing judge turns in many signatures

As reported in this local article, headlined "Effort to recall Stanford rape case judge submits almost 100,000 signatures," a high-profile lenient sentence may soon be putting a California judge's job in jeopardy. Here are the details:

The campaign to recall a judge who issued what many considered a light sentence to a former Stanford swimmer convicted of sexual assault cleared its first hurdle Thursday.

Recall organizers, led by Stanford law Professor Michele Dauber, filed a petition and nearly 100,000 signatures with the Santa Clara County Registrar of Voters in San Jose to place a measure on the June ballot to recall Superior Court Judge Aaron Persky.

If successful, it would be the first recall of a California judge in 87 years.

In June 2016, Persky sentenced former Stanford swimmer Brock Turner to six months in jail after he was found guilty of sexually assaulting an unconscious woman by a dumpster outside of a fraternity party on the college campus, resulting in a national outcry that Turner received special treatment. Prosecutors had argued that Turner should spend six years in state prison, but Persky gave him six months in county jail. He ended up being released in three.

While Persky became a prominent public figure after the Turner decision, the recall campaign has attempted to demonstrate a pattern of judicial bias that extends beyond Turner’s case.... At a news conference Thursday morning, Dauber listed a series of cases in which she believed Persky’s handling of sexual assault cases had been too lenient, including a 2011 civil trial on the alleged gang rape of a 17-year-old high school girl by members of the De Anza Community College baseball team. Persky allowed defendants to show photos of the victim wearing a revealing outfit to the jury....

After serving half of his sentence, Turner was required to register as a sex offender after moving back home with his family in Ohio. He recently appealed his conviction, arguing that he didn’t receive a fair trial.

To qualify for June’s election, the Persky recall campaign was required to turn in 58,634 valid signatures by Feb. 2. Organizers submitted a petition with 94,518 signatures that filled 11 boxes outside of the Registrar of Voters office, which now has 30 days to verify them. “We are very confident that we are going to have thousands more than we need to qualify,” Dauber said.

Persky has tried several times to block the recall effort....

Persky based Turner’s jail sentence on a recommendation from the county probation department. The judge noted that prison would have “a severe impact” on the former Stanford swimmer. The petition to place the recall on the ballot is only the first step in the campaign to push out Persky, Dauber said. If the recall is placed on the ballot, voters also will be asked to select a candidate to fill Persky’s seat on the bench. Cindy Hendrickson, an assistant district attorney for Santa Clara County, is the only candidate to date who has filed papers.

On Thursday, Dauber framed the recall effort in historical context by describing the first successful recall effort in California history. “In 1913, the women’s clubs of San Francisco, much like we have done here, banded together to recall a judge named Charles Weller for lenient decisions on sexual assault,” she said.

Dauber also noted the national momentum of the current #MeToo movement. “Women are standing up and refusing to accept the normalization of harassment and abuse by privileged men, and the movement runs all the way from Hollywood to Silicon Valley to media to politics to the legal profession,” Dauber said, expressing support for Hendrickson.

Persky’s ruling — along with the publication of a gut-wrenching letter the victim read in court during Turner’s sentencing hearing — prompted former Vice President Joe Biden to write an open letter to the victim noting that she is a “warrior” who has been failed by many people and institutions.

In a number of prior posts about the Brock Turner case, I have noted concerns both about the lenient sentence he received and about the campaign to recall his judge. Here is just a sampling of the prior posts this case has generated:

January 13, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Friday, January 12, 2018

Supreme Court grants cert on a couple of (small?) sentencing cases

Via this order list, the US Supreme Court added twelve cases to its merits docket.  A couple involve sentencing issues, and here they are with an assist from SCOTUSblog:

Chavez-Meza v. United States, No. 17-5639

Issue: Whether, when a district court decides not to grant a proportional sentence reduction under 18 U.S.C. § 3582(c)(2), it must provide some explanation for its decision when the reasons are not otherwise apparent from the record, as the U.S. Courts of Appeals for the 6th, 8th, 9th and 11th Circuits have held, or whether it can issue its decision without any explanation so long as it is issued on a preprinted form order containing the boilerplate language providing that the court has “tak[en] into account the policy statement set forth in 18 U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable,” as the U.S. Courts of Appeals for the 4th, 5th and 10th Circuits have held.

Lagos v. United States, No. 16-1519

Issue: Whether 18 U.S.C. § 3663A(b)(4) covers costs for reimbursement under the Mandatory Victims Restitution Act that were “neither required nor requested” by the government, including costs incurred for the victim's own purposes and unprompted by any official government action.

As the title of this post suggests, my first take is that these issues are pretty small in scope and significance.  But I am still always excited to see SCOTUS care about sentencing matters.

January 12, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

"Mental Health Courts and Sentencing Disparities"

The title of this post is the title of this notable new empirical paper now available via SSRN authored by E. Lea Johnston and Conor Flynn.  Here is the abstract:

Despite the proliferation of mental health courts across the United States, virtually no attention has been paid to the criminal justice effects these courts carry for participants.  This article provides the first empirical analysis of differential sentencing practices in mental health and traditional criminal courts.  Using a case study approach, the article compares how Pennsylvania’s Erie County Mental Health Court and county criminal courts sentenced individuals who committed the same offenses and held the same average criminal history score.  Information on the mental health court — including eligibility criteria, plea bargaining and sentencing procedure, sentencing policies, program length, graduation rates, likelihood of early discharge, and consequences of unsuccessful termination — derive from interviews with key mental health court professionals, five years of collected sentencing and dispositional data, and court materials.  The Pennsylvania Commission on Sentencing provided the county-level data, which were disaggregated by offense and criminal history score. The article analyzes sentencing for twelve offenses spanning four offense grades.

The findings are striking.  First, analysis reveals that anticipated mental health court sentences typically exceed — by years — the supervisory periods that offenders would otherwise receive in a county criminal court.  Second, mental health court participants with multiple convictions were significantly more likely to receive consecutive, as opposed to concurrent, sentences than those sentenced by traditional courts.  Third, the analysis suggests the mental health court usually does not divert individuals from jail or prison sentences — a primary justification for these courts — but instead merely extends state control over individuals with serious mental illnesses.  Fourth, key mental health court actors appear unaware of likely sentencing disparities or the high rate of participant failures.  Thus, offenders choosing between mental health and traditional courts may go uninformed about these fundamental differences.  The article concludes with suggestions for future research.

January 12, 2018 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, January 09, 2018

Fourth Amendment day for SCOTUS oral arguments

The second day of Supreme Court oral arguments in calendar year 2018 brings forth two Fourth Amendment cases on the SCOTUS calendar.  Here are the basics and links to various previews via this SCOTUSblog posting:

Continuing its themed approach to argument days this session, the court is hearing two Fourth Amendment cases today, both involving searches of motor vehicles. The first argument is in Byrd v. United States, which asks whether a driver has a reasonable expectation of privacy in a rental car when he is not listed as an authorized driver on the rental contract. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. D.E. Wagner and Leonardo Mangat preview the case for Cornell Law School’s Legal Information Institute.

 This morning’s second case is Collins v. Virginia, in which the justices will consider the scope of the automobile exception to the warrant requirement. Amy Howe previewed the case for this blog; her coverage was first published at Howe on the Court.  Robin Grieff, Jonathan Kim and Hillary Rich have Cornell’s preview, and Subscript offers a graphic explainer for the case.

January 9, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, January 08, 2018

SCOTUS back to work with remarkable split habeas ruling giving capital defendant another (long-shot?) chance to obtain relief

At the end of this long Supreme Court order list, comprised primarily of a long list of cases in which certiorari has been denied, comes a fascinating little per curiam opinion in Tharpe v. Seller, No. 17–6075 (S. Ct. jan 8, 2018) (available here).  The ruling is a rare summary SCOTUS win for a capital habeas defendant, and the short majority opinion provides only a small glimpse into the case (though a clear view of what motivated a majority of Justices to want to intervene).  Here are excerpts from the opinion (with cites removed):

Petitioner Keith Tharpe moved to reopen his federal habeas corpus proceedings regarding his claim that the Georgia jury that convicted him of murder included a white juror, Barney Gattie, who was biased against Tharpe because he is black. See Fed. Rule Civ. Proc. 60(b)(6). The District Court denied the motion on the ground that, among other things, Tharpe’s claim was procedurally defaulted in state court. The District Court also noted that Tharpe could not overcome that procedural default because he had failed to produce any clear and convincing evidence contradicting the state court’s determination that Gattie’s presence on the jury did not prejudice him....

Our review of the record compels a different conclusion.  The state court’s prejudice determination rested on its finding that Gattie’s vote to impose the death penalty was not based on Tharpe’s race.  And that factual determination is binding on federal courts, including this Court, in the absence of clear and convincing evidence to the contrary.  Here, however, Tharpe produced a sworn affidavit, signed by Gattie, indicating Gattie’s view that “there are two types of black people: 1. Black folks and 2. Niggers”; that Tharpe, “who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did”; that “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks, but that wasn’t my reason”; and that, “[a]fter studying the Bible, I have wondered if black people even have souls.”  Gattie’s remarkable affidavit — which he never retracted — presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict.  At the very least, jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court’s factual determination was wrong.  The Eleventh Circuit erred when it concluded otherwise.

Justice Thomas, joined by Justices Alito and Gorsuch, authored a lengthy dissent to the majority's short ruling. It starts and ends this way:

If bad facts make bad law, then “unusual facts” inspire unusual decisions.  Ante, at 3.  In its brief per curiam opinion, the Court misreads a lower court’s opinion to find an error that is not there, and then refuses to entertain alternative grounds for affirmance. The Court does this to accomplish little more than a do-over in the Court of Appeals: As it concedes, petitioner Keith Tharpe faces a “high bar” on remand to obtain even a certificate of appealability (COA).  Ante, at 2.

One might wonder why the Court engages in this pointless exercise.  The only possible explanation is its concern with the “unusual facts” of this case, specifically a juror affidavit that expresses racist opinions about blacks.  The opinions in the affidavit are certainly odious.  But their odiousness does not excuse us from doing our job correctly, or allow us to pretend that the lower courts have not done theirs.

The responsibility of courts is to decide cases, both usual and unusual, by neutrally applying the law.  The law reflects society’s considered judgments about the balance of competing interests, and we must respect those judgments.  In bending the rules here to show its concern for a black capital inmate, the Court must think it is showing its concern for racial justice.  It is not.  Its summary vacatur will not stop Tharpe’s execution or erase the “unusual fac[t]” of the affidavit.  It will only delay justice for Jaquelin Freeman, who was also black, who is ignored by the majority, and who was murdered by Tharpe 27 years ago. I respectfully dissent....

Today’s decision can be explained only by the “unusual fac[t]” of Gattie’s first affidavit.  Ibid.  The Court must be disturbed by the racist rhetoric in that affidavit, and must want to do something about it.  But the Court’s decision is no profile in moral courage.  By remanding this case to the Court of Appeals for a useless do-over, the Court is not doing Tharpe any favors.  And its unusual disposition of his case callously delays justice for Jaquelin Freeman, the black woman who was brutally murdered by Tharpe 27 years ago. Because this Court should not be in the business of ceremonial handwringing, I respectfully dissent.

This is quite the way to start Supreme Court activity in 2018, a year that seems certain to have at least the usual share of SCOTUS fireworks. (I am also inspired by Justice Thomas's closing thought to imagine a new tagline for this blog: "Engaged in ceremonial handwringing since 2004.")

January 8, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Thursday, January 04, 2018

"I was Raped. And I Believe The Brock Turner Sentence Is a Success Story."

The title of this post is the headline of this notable new commentary authored by Meaghan Ybos, who is the founder and executive director of People for the Enforcement of Rape Laws. I recommend the piece is full, and here is a snippet:

[T]hose critical of the scrutiny of Judge Persky have not defended Turner’s sentence. I will do so here. I am a rape victim engaged in a lawsuit against the Memphis Police Department for systematically failing to investigate rape cases and I believe that Judge Persky’s sentence was just.

The outrage over the supposedly lenient sentence misunderstands the consequences of Turner’s conviction, which includes lifetime registration as a sex offender, and vilifies individualized sentencing. I also believe that the energy and vitriol directed at Judge Persky should have been used instead to hold police departments accountable for properly investigating rape, which too many fail to do....

We should not demonize judges for handing out individualized sentences, even to Brock Turner. Instead, we should demand that judges use discretion more broadly and in favor of people from all backgrounds.  And we must recall that the very worst criminal justice policy springs from outrage over individual high profile cases from Willie Horton to, more recently, Jose Ines Garcia Zarate, a homeless Mexican immigrant in San Francisco who was just acquitted in a high profile murder that Donald Trump seized upon in his 2016 campaign to support his anti-immigration platform.

Furthermore, advocates ... have falsely characterized Turner’s sentence as a slap on the wrist, but his punishment also involves much more than the number of hours he was caged.  Turner owes court fees and is required to pay the victim restitution.  He must attend a year-long rehabilitation program for sex offenders, which includes mandatory polygraph exams for which he must waive his privilege against self-incrimination.  If he violates the terms of his three-year felony probation, he faces a 14-year prison sentence.  He now has a strike that can be used against him under California’s three-strikes law if he is accused of any future criminal activity.  As a convicted felon, he will not be allowed to own a gun....

The most severe part of Turner’s sentence, which anti-rape advocates largely have glossed over, is the requirement that he register as a sexual offender for the rest of his life. This means that an online sex offender registry will show his picture, his address, his convictions, and details of his probation. These lists, which contain people convicted of an ever-growing number of offenses, are so broad and oppressive that a Colorado federal court deemed them cruel and unusual punishment. They are “modern-day witch pyres” that often lead to homelessness, instability, and more time in prison.

As with Jose Ines Garcia Zarate and Willie Horton before him, political leaders seized on outrage over Turner’s sentence to justify punitiveness. The Turner case spurred a new mandatory minimum law in California removing the option of probation for people convicted of sexually assaulting a person who is intoxicated or unconscious.  By imposing a three-year mandatory sentence, the law removes judicial discretion.  “The bill is about more than sentencing,” said Democratic Assembly member Bill Dodd in a written statement following the bill’s passage. “It’s about supporting victims and changing the culture on our college campuses to help prevent future crimes.”

But it’s at the “front end” of the criminal justice system where most rape complaints falter.  Police have often acted as hostile gatekeepers preventing complaints from ever reaching a courtroom.  History shows police gatekeeping in cities like Philadelphia, St. Louis, Baltimore, Cleveland, Detroit, New Orleans, and New York City.  In recent years, police have regularly closed cases before doing any investigation, discarded rape kits (the San Jose Police Department currently has over 1,800 untested rape kits and refuses to count the rape kits collected before 2012), and have even arrested victims for false reporting. It’s not surprising that police departments solve abysmally few rapes, with some cities’ clearance rates in the single digits.

The Turner case was investigated and prosecuted to the full extent of the law.  For a sexual assault case, it is a rare success.  More punishment isn’t always the best or most just response.  Nor does it necessarily provide justice for victims.  And as long as police gatekeeping prevents rape victims from having consistent access to the criminal justice system, recalling judges and increasing sentences will yield no progress in reducing sexual assault.

January 4, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

"The New Reformer DAs"

The title of this post is the title of this lengthy new American Prospect article.  The piece's lengthy subheadline highlights its themes: "As cities grow more progressive, a new breed of prosecutors are winning office and upending the era of lock-’em-up justice. They may hold the key to resisting Trump’s mania for mass incarceration." And here is an excerpt:

District attorneys “are in many ways the most important figures in the system,” says David Alan Sklansky, a Stanford law professor who studies DAs. “They are crucial gatekeepers between the police and the courts. They get to decide who gets charged and what they get charged with. They are the ones who recommend sentencing and negotiate plea agreements.  And since the vast majority of criminal convictions in this country are the result of plea agreements, they are the ones who are negotiating sentences.”

While the war on drugs, mandatory minimums, and discriminatory policing practices have all earned a great deal of scrutiny for creating the levels of mass incarceration we see today, more and more reformers are recognizing the pernicious role that prosecutors — who have a tremendous amount of power and discretion within the system — have played.

John Pfaff, a Fordham law professor and author of the provocative book Locked In, argues that the role low-level drug charges have played in the rise in mass incarceration is overblown. The main drivers, he contends, are the prosecutors in the country’s DA offices. By examining state court data, Pfaff finds that almost all prison population growth since 1994 derives from overzealous prosecutors, who have doubled the rate of felony charges brought against arrestees.

For decades, district attorney politics (almost all counties elect their chief prosecutors) have been relatively conservative affairs, animated by white suburban voters who want assurances of law and order — not by the people of color living in the city and on the receiving end of tough-on-crime policies.  Of the more than 2,400 elected prosecutors in the United States, 95 percent are white, according to the Reflective Democracy Campaign.  In 14 states, all elected prosecutors are white.  Just 1 percent of prosecutors are women of color.

January 4, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Sunday, December 31, 2017

Looking at enduring challenges in Miller's application in Louisiana and elsewhere

This new lengthy AP piece, headlined "Ruling but no resolution on which teen killers merit parole," details the continuing debate in Louisiana and other states over application of the Supreme Court's recent Eighth Amendment jurisprudence on juve LWOP sentences. Here are excerpts:

Nearly two years after the U.S. Supreme Court ruled that prison inmates who killed as teenagers are capable of change and may deserve eventual freedom, the question remains unresolved: Which ones should get a second chance? Now the ruling — which came in the case of a 71-year-old Louisiana inmate still awaiting a parole hearing — is being tested again in that same state, where prosecutors have moved in recent months to keep about 1 in 3 former juvenile offenders locked up for the rest of their lives.

“There is no possible way to square these numbers with the directive of the Supreme Court,” said Jill Pasquarella, supervising attorney with the Louisiana Center for Children’s Rights, which found that district attorneys are seeking to deny parole eligibility to 84 of 255 juvenile life inmates whose cases are up for review.

Some prosecutors countered that the heinousness of some of the crimes makes these inmates the rare teen offenders the court said could still be punished with life behind bars. “In this community, some of the most violent crimes we’ve had have been committed by juveniles,” said Ricky Babin, district attorney for Ascension, Assumption and St. James parishes, who has filed motions seeking new life-without-parole sentences in four of five cases.

The moves by Louisiana prosecutors echo the aggressive approach in Michigan, where district attorneys are seeking to keep two-thirds of 363 juvenile life inmates behind bars for good. That state’s cases have been on hold for months now awaiting a ruling on whether judges or juries should decide them. The friction prompts agreement by prosecutors and advocates that the nation’s highest court likely needs to step back into the debate over how the U.S. punishes juvenile offenders.

“It’s definitely clear now that the court does need to ... clarify that life without parole is unconstitutional for all children,” said Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth. “We’ve seen in certain states, in certain jurisdictions, that the standard that was set by the court ... is one that prosecutors and judges don’t necessarily feel compelled to follow.”

The court’s January 2016 ruling extended a ban on mandatory life without parole for juvenile offenders to those already in prison for murders committed when they were under 18. The decision didn’t lay out specific procedures for states to follow in reviewing the cases of those 2,000-plus inmates nationwide. Rather it said only that a lifetime behind bars should be reserved for the “rarest” offenders whose crimes reflect “irreparable corruption.”...

The decision ushered in a wave of new sentences and the release of dozens of inmates in states from Pennsylvania to Michigan, Arkansas and beyond — but also brought confusion and inconsistent approaches in other states, an Associated Press investigation earlier this year found.

In Louisiana, a law that took effect in August makes former teen offenders with no-release life terms eligible for parole after serving 25 years — unless a prosecutor intervenes. District attorneys had until the end of October to ask a judge to deny parole eligibility. Several district attorneys refused to discuss individual cases, and court paperwork they filed does not detail arguments against release. But prosecutors said their decisions were based on reviews of offenders’ crimes, their records in prison and talks with victims’ families. “These are all sensitive cases to victims. They lost a loved one in this,” said Scott Stassi, first assistant district attorney for Point Coupee, West Baton Rouge and Iberville parishes. His office is seeking life without parole in all four of its cases....

Louisiana is being closely watched because the state has so many cases — only Pennsylvania and Michigan have more — and its justice system has a reputation for stiff punishment. A new U.S. Supreme Court petition filed by Pasquarella’s group and the national Juvenile Law Center calls out Louisiana for continuing to sentence juveniles to life without parole in 62 percent of new cases since 2012, including those in which offenders were convicted of second-degree murder. The petition seeks an outright ban on life without parole for juveniles; 20 states and the District of Columbia already prohibit the sentence for teens....

In New Orleans, with more juvenile life cases than any other judicial district in Louisiana, prosecutors are seeking to deny 30 inmates a chance for parole. The district has 64 cases, but nearly a quarter had been resolved before the new law took effect. District Attorney Leon Cannizzaro Jr. said the decisions should have been left to the state’s parole board, because it is better able than prosecutors to assess how inmates may have changed. The board will pass judgment on inmates whose parole eligibility is not opposed by prosecutors, but cases in dispute will be argued before a judge....

E. Pete Adams, executive director of the Louisiana District Attorneys Association, thinks it is inevitable that the nation’s top court will be pressed to weigh in as prosecutors test the boundaries of the 2016 ruling. “Ultimately, whatever the court says we’ll abide by,” he said. The Supreme Court recently declined to hear two related cases, including an Idaho petition asking the justices for an all-out ban on juvenile life without parole. For now, that leaves decisions to local prosecutors, judges and parole officials.

A few recent related posts:

December 31, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Is criminal justice reform really "poised to take off in 2018"?

The question in the title of this post is prompted by this lengthy Washington Examiner article headlined "Criminal justice reform poised to take off in 2018."  Here are excerpts:

Criminal justice reform came back with such renewed energy this year after sputtering out in Congress in 2016 that meaningful bipartisan legislation is poised for success in 2018.

In October, Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, announced he and a bipartisan group of senators were reintroducing the Sentencing Reform and Corrections Act, which would overhaul prison sentences for nonviolent drug offenders and allow for more judicial discretion during sentencing. The bill mirrors legislation introduced last Congress that failed after Senate Majority Leader Mitch McConnell, R-Ky., refused to bring it up.

Then days later, Sens. Sheldon Whitehouse, D-R.I., and John Cornyn, R-Texas, reintroduced the Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers In Our National System Act, which builds off of successful criminal justice reforms in the senators' respective states.

The CORRECTIONS Act requires the Department of Justice and its Federal Bureau of Prisons to find a way to reduce inmate recidivism rates. It also calls for lower-risk inmates to be put in less-restrictive conditions to reduce prison costs and allow for more resources to be shifted to law enforcement. The legislation also expands recidivism-reduction programs, and requires the federal probation office to plan for re-entry of prisoners ahead of time....

And finally, the Mens Rea Reform Act was introduced by Sen. Orrin Hatch, R-Utah, and co-sponsored by Republican Sens. Mike Lee of Utah, Ted Cruz of Texas, David Perdue of Georgia and Rand Paul of Kentucky....

Kara Gotsch, who oversees the Sentencing Project's federal advocacy work, told the Washington Examiner, she sees the likelihood of legislation passing as "small" and cited changes being made at the federal level in the Department of Justice under Attorney General Jeff Sessions as a cause for concern. "Areas to watch are how Sessions' harsher charging and sentencing policies take effect now that more Trump-appointed U.S. attorneys are being installed," Gotsch said, noting the Justice Department has predicted an increase in the prison population in 2018 after four years of decline under the Obama administration.

"Also, the U.S. Sentencing Commission is poised to issue new guideline amendments related to alternatives to incarceration which would expand eligibility for federal dependents to receive a non-incarceration sentence. I will be watching to see how far they extend it."

The Justice Department says it will "continue to enforce the law" as the nation faces an opioid epidemic and rising violent crime. “In 2016, 64,000 Americans died from drug overdoses. For two straight years, violent crime has been on the rise. Americans voted for President Trump's brand of law and order and rejected the soft on crime policies that made it harder to prosecute drug traffickers and put dangerous criminals back on the street where our law enforcement officers face deadly risks every day," Justice Department spokesman Ian Prior said.

Where Congress could fail in 2018, states are there to pick up the slack....

For example, Republican Gov. Rick Snyder of Michigan signed an 18-bill criminal justice reform package in March, and state legislators in Florida ended the year championing various bills that they say would help reduce the state’s burgeoning prison population. A pair of measures are set to be taken up that would implement pre-arrest diversion programs statewide that Florida lawmakers say would reduce crime and incarceration rates, as well as a measure that would restore voting rights to some 1.6 million felons in the Sunshine State.

Other states such as New Jersey, Virginia, Alabama and New York elected candidates during the 2017 elections who openly support criminal justice reform, setting up the possibility for revamping at the state and local levels next year.

Phil Murphy, who was elected in a landslide to be the new governor of New Jersey, promised he would put the Garden State in a position to pass criminal justice reform. On his campaign website, he promises changes such as creating a commission to examine mandatory minimum laws, implementing bail reform to prevent someone from being stuck behind bars for being unable to pay a fine, and the legalization of marijuana “so police can focus resources on violent crime.”

"It's important to recognize that 2017 saw passage of criminal justice reform in red and blue states throughout the nation, in contrast to reforms stalling on the federal level," Udi Ofer, deputy national political director at the America Civil Liberties Union said. The ACLU worked to help pass 57 pieces of criminal justice reform legislation in 19 states, he noted.

"From sentencing reform in Louisiana and bail reform in Connecticut, to drug reform in Oregon and probation reform in Georgia, this year proved that the movement for criminal justice reform continues to be strong in the states, even under a Trump-Sessions administration," Ofer said, adding that in 2018, the ACLU expects "these reforms to continue, and to grow, particularly around bail reform, prosecutorial reform and sentencing reform."

For 2018, he said the ACLU is working on bail reform in 33 states including California, Georgia, Ohio and New York. In July, Sens. Kamala Harris, D-Calif., and Rand Paul, R-Ky., introduced the Pretrial Integrity and Safety Act, which would encourage states to change or replace the process they use for allowing people to pay money to avoid sitting in jail until their trial. Ofer also said he expected the issues of mass incarceration and criminal justice reform to "play a larger role in federal and state elections in 2018" following the wins of candidates supporting such reforms in 2017.

As is my general tendency, I am hopeful but not optimistic about the prospects for federal statutory sentencing reform during a pivotal election year. If other possible "easier" legislative priorities get completed (or falter), I could see at least some modest reforms making it through the legislative process. But inertia can be a potent political and practical force in this setting, especially in an election year, so I am not holding my breath.

December 31, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Thursday, December 28, 2017

Silk Road creator Ross Ulbricht raises notable sentencing issue in SCOTUS cert petition

As detailed in this new Reason piece, headlined "Ross Ulbricht Files Appeal to the Supreme Court on His Life Sentence Without Parole: Silk Road founder's appeal stresses the dangerous Fourth and Sixth Amendment implications of his prosecution and sentencing," a notable federal criminal defendant is bringing some notable issues to the Supreme Court via a new cert petition. The full cert petition is available at this link, and here are the petition's seemingly simple questions presented:

1. Whether the warrantless seizure of an individual’s Internet traffic information without probable cause violates the Fourth Amendment.

2. Whether the Sixth Amendment permits judges to find the facts necessary to support an otherwise unreasonable sentence.

SCOTUS gurus know that the first question intersects with issues in the pending Carpenter case, and that fact alone might make this high-profile case a poor vehicle for getting to the post-Booker sentencing issue also raised. The petition, notably, suggests "It would be most efficient for the Court to resolve the question presented in this case now, while it is considering a related question in Carpenter."

SCOTUS gurus know that the second question is one that has been repeatedly avoided by SCOTUS since its Booker-Rita rulings wherein the late Justice Scalia suggested that, even within the advisory guideline system created by Booker, there must be some Sixth Amendment limits on findings by judges to justify lengthy prison sentences.  Despite pushing the matter, Justice Scalia could not garner enough votes for this Sixth Amendment issue to be addressed by the full Court on the merits before his untimely demise.  I am not really expecting a different reality now, although Ulbricht's lawyers astutely notes in his cert petition that Justice Scalia's replacement has previously suggested concerns on this front:

Shortly after Justice Scalia’s opinion in Jones, then-Judge Gorsuch similarly observed that “[i]t is far from certain whether the Constitution allows” a judge to increase a defendant’s sentence within the statutorily authorized range “based on facts the judge finds without the aid of a jury or the defendant’s consent.” United States v. Sabillon-Umana, 772 F.3d 1328, 1331 (10th Cir. 2014) (citing Jones).  Three years later, however, that question re- mains unanswered by the Court, despite intervening opportunities to address it.

A few prior related posts on sentencing and appeals of Ross Ulbricht:

December 28, 2017 in Advisory Sentencing Guidelines, Blakely in the Supreme Court, Booker and Fanfan Commentary, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Sunday, December 24, 2017

Interesting (and sound?) outcome for juve who pled guilty to Slender Man stabbing

Serious crimes committed by young kids present a range of difficult sentencing issues, and a high-profile case of this variety was resolved on quite interesting terms last week.  This ABC News article, headlined "Teen who pleaded guilty in Slender Man stabbing case to remain in institutional care for 25 years, judge says," provide this account of the outcome:

A judge has sentenced one of the two Wisconsin teenagers accused of stabbing their friend in the woods to please the online fictional character Slender Man. Anissa Weier, 16, will now spend 25 years under a mental health institution’s supervision, with credit for her 1,301 days already spent in incarceration.  More than two years and six months of her sentence will be spent in a mental hospital before she can petition the court for release every six months.  If released, Weier will remain under institutional supervision until year 2039 and will be 37 years old.

“I just want everyone involved in this to know that I do hold myself accountable for this,” Weier told the court.  “I want everybody involved to know that I deeply regret everything that happened that day, and that I know that nothing I say is going to make this right, your honor, and nothing I say is going to fix what I broke.  I am just hoping that by holding myself somewhat accountable and making myself responsible for what I took part in that day, that I can be responsible and make sure this doesn’t happen again. I’m never going to let this happen again.”

Weier pleaded guilty earlier this year to attempted second-degree intentional homicide, as a party to a crime, with the use of a dangerous weapon as part of a plea deal.  A jury then found Weier not guilty by reason of mental disease or defect. Earlier this year the court also accepted a plea deal for co-defendant Morgan Geyser, who pleaded guilty to attempted first-degree intentional homicide.  In accordance with the plea deal, the court also found Geyser not guilty by reason of mental disease or defect despite her earlier guilty plea. Geyser’s sentencing is set for 2018.

In a victim impact statement, Stacie Leutner, mother of the stabbing survivor Payton Leutner, wrote that she and her family accept the plea deals but petitioned Judge Michael Bohren to “consider everything Payton and those closest to her have endured over the last three-and-a-half years” prior to the sentencing. In the victim impact statement, Stacie Leutner wrote that some of her daughter’s wounds from the attack still “tingle and ache and remind her of their presence every day.”...

“We accepted the plea deals for Morgan and Anissa for two reasons,” Stacie Leutner wrote. “First, because we believed it was the best thing to do to ensure Payton would not have to testify.  Traumatizing her further didn’t seem worth it. She has never talked about her attack so asking her to testify and relive her experience in front of a courtroom of strangers felt cruel and unnecessary. And second, because Payton felt placement in a mental health facility was the best disposition for both girls.”  Although she has accepted the plea deals, Stacie Leutner writes that her daughter “still fears for her safety.”

Weier and Geyser were arrested May 31, 2014, after the stabbing of Payton Leutner, whom they left in the woods in Waukesha, Wisconsin.  Leutner crawled to a nearby road and was helped by a passing bicyclist before she was hospitalized with life-threatening injuries but survived. Weier, Geyser and Payton Leutner were 12 years old at the time. Prosecutors have said that both girls were obsessed with the character Slender Man, who is often depicted in fan fiction stories online as a horror figure who stalks children.

In January, Weier's parents told “Good Morning America” that their daughter had expressed remorse. Her mother, Kristi Weier, said that according to police interview tapes of Geyser and her daughter, "They thoroughly believed that Slender Man was real and wanted to prove that he was real."

December 24, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Thursday, December 21, 2017

"Even Imperfect Algorithms Can Improve the Criminal Justice System"

The title of this post is the headline of this recent New York Times commentary authored by Sam Corbett-Davies, Sharad Goel and Sandra González-Bailón. Here are excerpts:

In courtrooms across the country, judges turn to computer algorithms when deciding whether defendants awaiting trial must pay bail or can be released without payment. The increasing use of such algorithms has prompted warnings about the dangers of artificial intelligence.  But research shows that algorithms are powerful tools for combating the capricious and biased nature of human decisions.

Bail decisions have traditionally been made by judges relying on intuition and personal preference, in a hasty process that often lasts just a few minutes.  In New York City, the strictest judges are more than twice as likely to demand bail as the most lenient ones.

To combat such arbitrariness, judges in some cities now receive algorithmically generated scores that rate a defendant’s risk of skipping trial or committing a violent crime if released.  Judges are free to exercise discretion, but algorithms bring a measure of consistency and evenhandedness to the process.

The use of these algorithms often yields immediate and tangible benefits: Jail populations, for example, can decline without adversely affecting public safety. In one recent experiment, agencies in Virginia were randomly selected to use an algorithm that rated both defendants’ likelihood of skipping trial and their likelihood of being arrested if released. Nearly twice as many defendants were released, and there was no increase in pretrial crime. New Jersey similarly reformed its bail system this year, adopting algorithmic tools that contributed to a 16 percent drop in its pretrial jail population, again with no increase in crime.

Algorithms have also proved useful in informing sentencing decisions. In an experiment in Philadelphia in 2008, an algorithm was used to identify probationers and parolees at low risk of future violence.  The study found that officers could decrease their supervision of these low-risk individuals — and reduce the burdens imposed on them — without increasing rates of re-offense.

Studies like these illustrate how data and statistics can help overcome the limits of intuitive human judgments, which can suffer from inconsistency, implicit bias and even outright prejudice.

Algorithms, of course, are designed by humans, and some people fear that algorithms simply amplify the biases of those who develop them and the biases buried deep in the data on which they are built.  The reality is more complicated.  Poorly designed algorithms can indeed exacerbate historical inequalities, but well-designed algorithms can mitigate pernicious problems with unaided human decisions.  Often the worries about algorithms are unfounded...

Still, like humans, algorithms can be imperfect arbiters of risk, and policymakers should be aware of two important ways in which biased data can corrupt statistical judgments. First, measurement matters. Being arrested for an offense is not the same as committing that offense.  Black Americans are much more likely than whites to be arrested on marijuana possession charges despite using the drug at similar rates. As a result, any algorithm designed to estimate risk of drug arrest (rather than drug use) would yield biased assessments.  Recognizing this problem, many jurisdictions — though not all — have decided to focus on a defendant’s likelihood of being arrested in connection with a violent crime, in part because arrests for violence appear less likely to suffer from racial bias....

The second way in which bias can enter the data is through risk factors that are not equally predictive across groups.  For example, relative to men with similar criminal histories, women are significantly less likely to commit future violent acts.  Consequently, algorithms that inappropriately combine data for all defendants overstate the recidivism risk for women, which can lead to unjustly harsh detention decisions.  Experts have developed gender-specific risk models in response, though not all jurisdictions use them. That choice to ignore best statistical practices creates a fairness problem, but one rooted in poor policy rather than the use of algorithms more generally.

Despite these challenges, research shows that algorithms are important tools for reforming our criminal justice system.  Yes, algorithms must be carefully applied and regularly tested to confirm that they perform as intended. Some popular algorithms are proprietary and opaque, stymieing independent evaluation and sowing mistrust. Likewise, not all algorithms are equally well constructed, leaving plenty of room for improvement.  Algorithms are not a panacea for past and present discrimination.  Nor are they a substitute for sound policy, which demands inherently human, not algorithmic, choices.  But well-designed algorithms can counter the biases and inconsistencies of unaided human judgments and help ensure equitable outcomes for all.

December 21, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Technocorrections | Permalink | Comments (2)

Tuesday, December 19, 2017

Notably lenient Nebraska sex offense sentence reversed based on notably questionable judicial comments

This local press report, headlined "Sentence of probation in Nebraska sexual assault case overturned; judge called 12-year-old girl the 'aggressor'," reports on an interesting state appellate court sentencing reversal.  Here are the basic details:

The Nebraska Court of Appeals has overturned a Kearney judge’s decision to put a man on probation for a felony sexual assault conviction.  In its ruling issued Tuesday morning, the Court of Appeals said Buffalo County District Judge Bill Wright considered forbidden and irrelevant factors when he decided to place Taylor Welty-Hackett on probation.

In February, Wright placed Welty-Hackett on four years of intensive supervised probation for attempted felony first-degree sexual assault of a 12-year-old girl on Aug. 1, 2015, in Kearney.  The charge was punishable by up to 20 years in prison.

The Court of Appeals ordered Welty-Hackett’s case be sent back to Buffalo County, where he will be resentenced by a different judge.  A hearing date hasn’t been set.  Buffalo County Attorney Shawn Eatherton had argued that Welty-Hackett’s sentence was too lenient.  During the Feb. 23 sentencing hearing, Wright called Welty-Hackett’s victim the "aggressor" in the case saying, “She made the advances.”

Wright also went on to tell Welty-Hackett that he “screwed up big time, but I’ve got to find some way of bringing balance back into the system, given the nature of what’s been occurring in this community.”

The Court of Appeals said Wright’s statement about the promiscuity of teenage girls and the need to bring “balance” into sentencing sexual offenders went beyond consideration of the facts in the case.  “If the sentencing judge (Wright) went awry in this case, it was only in failing to provide a more detailed explanation on the record of the multiple factors in the PSI (pre-sentence investigation report) which clearly justified the probationary sentences. ... Such failure caused the trial judge’s brief mention of the defendant’s small stature to become the focus of attention, when in reality it was but a minor point,” the Court of Appeals ruled.

The full opinion in Nebraska v. Welty-Hackett, No. A-17-239 (Neb. Ct. App. Dec. 19, 2017) (available here), makes for an interesting read.  Here are some of its concluding paragraphs:

Unlike in State v. Thompson, the sentencing judge’s comments in this case were more than just a “brief mention” of factors not relevant to imposing sentence.  The court’s discussion of the general promiscuity of teenage girls and the need to bring balance into the system was fairly substantial.  Further, the comments had nothing to do with this particular defendant, in contrast to State v. Thompson.  We recognize that the trial judge in this case indicated he had reviewed the PSR before the sentencing hearing.  While the information contained in the PSR may well have supported the probationary sentence imposed, we cannot determine from the judge’s comments at sentencing how much weight was given to the permissible and relevant sentencing factors compared to the impermissible and irrelevant factors.  We note, however, the court’s final comments before imposing sentence that Welty was getting the benefit of the court’s desire to “find some way of bringing some balance back into the system, given the nature of what’s been occurring in this community.”

Because it appears that the trial court’s reliance upon the impermissible and irrelevant sentence factors largely influenced his decision to impose probation, we find it necessary to vacate the sentence imposed and remand for resentencing before a different judge.

December 19, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

"The Unconstitutionality of Criminal Jury Selection"

The title of this post is the title of this notable new paper authored by Brittany Deitch and available via SSRN. Though focused on jury rights rather than sentencing, the ideas here might be especially significant and impactful in jury sentencing arenas (both capital and non-capital). Here is the abstract:

The criminal defendant’s right to a jury trial is enshrined within the U.S. Constitution as a protection for the defendant against arbitrary and harsh convictions and punishments.  The jury trial has been praised throughout U.S. history for allowing the community to democratically participate in the criminal justice system and for insulating criminal defendants from government oppression.  This Article asks whether the jury selection process is consistent with the defendant-protection justification for the Sixth Amendment right to a trial by jury. Currently, the prosecution and defense share equal control over jury selection.  Looking to the literal text of the Sixth Amendment, the landmark case on the right to a jury trial, and the Federal Rules of Criminal Procedure for guidance, this Article explains that jury selection procedures undermine the defendant-protection rationale for the Sixth Amendment right to a jury trial.  Because the Sixth Amendment grants this right personally to the defendant and the Supreme Court has construed this right as intending to protect the defendant from governmental overreach, the prosecution should not be entitled to select the very jury that is supposed to serve as a check against its power.  After concluding that symmetrical power in jury selection undermines the constitutional purpose of the jury trial, this Article proposes two possible remedies.

December 19, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Notable account of notable application of death penalty in China

This article from The Guardian, headlined "Thousands in China watch as 10 people sentenced to death in sport stadium," highlights that criminal procedure and drug enforcement in another large nation can look a lot different than they do in the United States.  Here are the details:

A court in China has sentenced 10 people to death, mostly for drug-related crimes, in front of thousands of onlookers before taking them away for execution.

The 10 people were executed immediately after the sentencing in Lufeng in southern Guangdong province, just 160km (100 miles) from Hong Kong, according to state-run media. Seven of the 10 executed were convicted of drug-related crimes, while others were found guilty of murder and robbery.

Four days before the event, local residents were invited to attend the sentencing in an official notice circulated on social media.  The accused were brought to the stadium on the back of police trucks with their sirens blaring, each person flanked by four officers wearing sunglasses.

They were brought one by one to a small platform set up on what is usually a running track to have their sentences read, according to video of the trial.  Thousands watched the spectacle, with some reports saying students in their school uniforms attended. People stood on their seats while others crowded onto the centre of the field, some with their mobile phones raised to record the event, others chatting or smoking.

China executes more people every year than the rest of the world combined, although the exact figure is not published and considered a state secret.  Last year the country carried out about 2,000 death sentences, according to estimates by the Dui Hua Foundation, a human rights NGO based in the United States.  China maintains the death penalty for a host of non-violent offences, such as drug trafficking and economic crimes.

However, public trials in China are rare.  The country’s justice system notoriously favours prosecutors and Chinese courts have a 99.9% conviction rate. The trend to reintroduce open-air sentencing trials is reminiscent of the early days of the People’s Republic, when capitalists and landowners were publicly denounced.

The most recent public sentencing and subsequent executions were not a first for Lufeng. Eight people were sentenced to death for drug crimes and summarily executed five months ago in a similar public trial, according to state media.

The town was the site of a large drug bust in 2014, when 3,000 police descended on Lufeng and arrested 182 people. Police confiscated three tonnes of crystal meth, and authorities at the time said the area was responsible for producing a third of China’s meth.

December 19, 2017 in Death Penalty Reforms, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentencing around the world | Permalink | Comments (6)

Monday, December 18, 2017

Remarkable Utah Supreme Court opinions debating due process rights (and originalism) in parole decision-making

Via a colleague's tweet, I just learned about a remarkable sent of opinions handed down late last week by the Utah Supreme Court in Neese v. Utah Board of Pardons & Parole, 2017 UT 89 (Utah Dec. 14, 2017) (available here).  The start of the majority opinion in Neese provides just a hint on the remarkable 40+ page discussion that follows:

Michael Neese, a Utah prison inmate, has never been convicted of a sex offense, subjected to prison discipline for sexual misconduct, or otherwise adjudicated a sexual offender. Yet the Board of Pardons and Parole (Parole Board) has denied him an original release date for parole largely based on its determination that he’s a sex offender and his refusal to participate in sex offender treatment. Applying the principles we articulated in Labrum v. Utah State Board of Pardons, 870 P.2d 902 (Utah 1993), we hold today that the district court erred in granting summary judgment to the Parole Board on the question of whether it violated Mr. Neese’s due process rights under article I, section 7 of the Utah Constitution.  Before the Parole Board may take the refusal of inmates in Mr. Neese’s shoes to participate in sex offender treatment into consideration in deciding whether to grant them parole, it owes them (1) timely, particularized written notice that allegations they committed unconvicted sexual offenses will be decided; (2) the opportunity to call witnesses; and (3) a written decision adequately explaining its basis for determining that they’re sex offenders and asking them to participate in sex offender treatment.

Much of the discussion of the majority opinion is in response to the claims of the lone dissent authored by Associate Chief Justice Thomas Lee, which gets started this way:

I share some of the majority’s concerns about the fairness of the procedures afforded to Neese by the Parole Board.  The Board’s refusal to allow Neese to call and question his accuser made it difficult for him to persuasively refute the sex-offense charge against him.  And without a persuasive means of rebuttal, Neese is likely to face substantially more prison time than most other inmates serving time for his crime of conviction (obstruction of justice).  He would also serve that time without a trial-like adjudication of the sex-offense charge in question.

For these and other reasons I might endorse the procedures set forth in the majority opinion if I were in a position to make policy in this field — to promulgate administrative rules governing the Parole Board.  I hedge—saying only that I might—because I am certain that my understanding of the Board’s decisionmaking process is incomplete.  And I frame this conclusion in the subjunctive — speaking of what I might do if I were in a position to promulgate rules for the Board — to underscore the limited scope of our authority in a case like this one.  In deciding this case we are deciding only on the demands of the Utah constitution. We are not deciding what set of procedural rules strike us as ideal under these circumstances.

The line between those two concepts is too often blurred in modern judicial thinking.  And the blurriness is perhaps at its height when we speak of the requirements of “due process.”  Here, perhaps more than in other constitutional fields, it is tempting to think of the constitutional requirement of due process as a general charter for assuring a vague ideal of fairness — an ideal that will ebb and flow or evolve over time.  But that is not what is enshrined in the due process clause.  “[T]he Due Process Clause is not a free-wheeling constitutional license for courts to assure fairness on a case-by-case basis.”  In re Discipline of Steffensen, 2016 UT 18, ¶ 7, 373 P.3d 186.  “[I]t is a constitutional standard” with a specific, if somewhat flexible, meaning. Id.

I hope to find some time to read and comment on these remarkable opinions in the days ahead, and in the meantime I welcome reader perspectives on the philosophies and particulars reflected in this case.

December 18, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

"The Myth of the Playground Pusher: In Tennessee and around the country, 'drug-free school zones' are little more than excuses for harsher drug sentencing."

The title of this post is the headline of this extended article authored by C.J. Ciaramella and Lauren Krisai published in the January 2018 issue of Reason magazine. The full article merits a full read, and here is just a snippet of the important work in this piece:

Drug-free school zone laws are rarely if ever used to prosecute sales of drugs to minors. Such cases are largely a figment of our popular imagination — a lingering hangover from the drug war hysteria of the 1980s.  Yet state legislatures have made the designated zones both larger and more numerous, to the point where they can blanket whole towns. In the process, they have turned minor drug offenses into lengthy prison sentences almost anywhere they occur.

In some cases, police have set up controlled drug buys inside school zones to secure harsher sentences.  That gives prosecutors immense leverage to squeeze plea deals out of defendants with the threat of long mandatory minimum sentences.

In recent years, this approach has begun to trouble some state lawmakers, and even some prosecutors are growing uncomfortable with the enormous power — and in some cases, the obligation — they have been handed to lock away minor drug offenders.  Nashville District Attorney Glenn Funk ran for office in 2014 on a platform that included not prosecuting school zone violations except in cases that actually involve children.  He says almost every single drug case referred to his office falls within a drug-free zone.

He's right.  Data obtained from the Tennessee government show there are 8,544 separate drug-free school zones covering roughly 5.5 percent of the state's total land area.  Within cities, however, the figures are much higher.  More than 27 percent in Nashville and more than 38 percent in Memphis are covered by such zones.  They apply day and night, whether or not children are present, and it's often impossible to know you're in one.

For a drug offender charged with possession of under half a gram of cocaine with intent to distribute, a few hundred feet can mean the difference between probation vs. eight years of hard time behind bars.  "In places like Nashville, almost the entire city is a drug-free zone," Funk says.  "Every church has day care, and they are a part of drug-free zones.  Also, public parks and seven or eight other places are included in this classification.  And almost everybody who has driven a car has driven through a school zone.  What we had essentially done, unwittingly, was increased drug penalties to equal murder penalties without having any real basis for protecting kids while they're in school."...

States created drug-free school zones thinking that the threat of draconian prison sentences would keep dealers away from schools.  But the very size of these zones undercuts that premise.  If a whole city is a drug-free zone, then the designation has no targeted deterrent effect. In practice, it exists to put more people in prison for longer periods of time, not to keep children safe.

"Drug-free school zone laws show how good intentions can go horribly wrong," says Kevin Ring, president of the advocacy group Families Against Mandatory Minimums.  "Adult offenders who aren't selling drugs to or even near kids are getting hammered with long sentences.  Most don't even know they are in a school zone. These laws aren't tough on crime.  They're just dumb."

By covering wide swaths of densely populated areas in drug-free zones, states end up hitting low-level and first-time drug offenders with sentences usually reserved for violent crimes.  Tennessee's drug-free school zone laws bump up drug felonies by a level and eliminate the possibility of an early release.  For example, a first-time drug offender found guilty of a Class C felony for possession with intent to distribute of less than half a gram of cocaine — which carries a maximum six-year sentence — instead receives a Class B felony with a mandatory minimum sentence of eight years.

These penalties are zealously applied. Knoxville criminal defense attorney Forrest Wallace says that one of his clients received an enhanced drug sentence for merely walking through a school zone that bisected the parking lot of his apartment complex on his way to meet the informant who had set him up.  The client received a normal sentence for the sale of the cocaine, but an enhanced charge of possession with intent to distribute for passing through the school zone.  "If they can prove it's in a zone, you know they're going to charge it," Wallace says.  "That's just the way it is."

Undercover cops and confidential informants sometimes go to extra lengths to get these enhanced sentences.  David Raybin, a Nashville criminal defense attorney, says that police informants often purposely set up deals in school zones, a practice that has led to accusations of entrapment from defendants and rebukes from judges dismayed by the practice.  "The police will frequently have people sell drugs in a school zone so they can enhance them," Raybin says.  "The only cases that I'm aware of involving dealing drugs on or in a school are always kids selling to other kids.  Usually in those cases, you don't want them getting a two-year mandatory minimum. It's just totally in appropriate."

December 18, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Another look at trend to prosecute some opioid overdose deaths as homicides

This morning's Wall Street Journal has this new article on the (not-all-that) new trend of considering homicide charges in response to drug-overdose deaths.  The full lengthy headline of the lengthy article is "Prosecutors Treat Opioid Overdoses as Homicides, Snagging Friends, Relatives As U.S. drug deaths hit record levels, prosecutors and police are trying a tactic that echoes tough-on-crime theories of the 1990s." Here are excerpts (with a few lines emphasized for follow-up commentary):

After Daniel Eckhardt’s corpse was found on the side of a road in Hamilton County, Ohio, last year, police determined he died of a heroin overdose. Not long ago, law enforcement’s involvement would have ended there. But amid a national opioid-addiction crisis fueling an unprecedented wave of overdose deaths, the investigation was just beginning.

Detectives interrogated witnesses and obtained search warrants in an effort to hold someone accountable for Mr. Eckhardt’s death.  The prosecutor for Hamilton County, which includes Cincinnati and its suburbs, charged three of Mr. Eckhardt’s companions, including his ex-wife and her boyfriend, with crimes including involuntary manslaughter, an offense carrying a maximum prison sentence of 11 years.

Mr. Eckhardt voluntarily took the heroin that killed him, but prosecutors alleged the trio were culpable because they bought and used heroin with him that they knew could result in death.  The indictments were part of a nationwide push to investigate overdose deaths as homicides and seek tough prison sentences against drug dealers and others deemed responsible.  It’s an aggressive tactic law-enforcement officials say they’re using in a desperate attempt to stanch the rising tide of overdose deaths.

Fueled by a flood of heroin laced with fentanyl and other powerful synthetic opioids, the overdose death rate in Hamilton County more than tripled between 2006 and 2016 to 50 per 100,000 people, or four times as many as those killed in traffic accidents.  Nationally, some 64,000 Americans died from overdoses last year, up 86% from 2006, according to the Centers for Disease Control and Prevention.

A newly created heroin task force in Hamilton County has investigated hundreds of deaths in the past two years, resulting in a dozen involuntary manslaughter indictments in state court and 13 federal indictments for distribution of controlled substances resulting in death. “The deaths—that’s why. All the people dying,” Cmdr. Thomas Fallon, who leads the Hamilton County task force, says of the prosecution push. “Even in the cocaine and crack days, people didn’t die like this.”

At least 86 people nationwide received federal prison sentences last year for distributing drugs resulting in death or serious injury, up 16% from 2012, according to the U.S. Sentencing Commission, a federal agency that determines sentencing guidelines for judges.  An analysis of news reports found 1,200 mentions nationally about drug-death prosecutions in 2016, three times the number in 2011, according to a recent report by the Drug Policy Alliance, a nonprofit group that supports decriminalizing drug use.

The prosecutions often employ tough-on-crime legislation born of the crack-cocaine epidemic of the 1980s and 1990s.  These state and federal laws hold drug distributors liable for overdose deaths.  Selling even small amounts can result in decades or even life in prison.

In some states, such laws were rarely enforced until recently.  Benjamin J. Agati, a veteran prosecutor in the New Hampshire Attorney General’s office, has helped train police departments throughout the state in how to build cases under the state’s drug-induced homicide law, which carries a maximum penalty of life in prison. The law was enacted in the late 1980s but was rarely applied before the surge in opioid deaths, Mr. Agati says....

The prosecutions sometimes nab members of drug-distribution gangs like that of Navarius Westberry.  Last year, Mr. Westberry pleaded guilty in federal court in Kentucky to operating a drug-trafficking ring that distributed up to a kilogram of heroin and 50 grams of fentanyl over an 18-month period that killed at least one person.  He was sentenced to life in prison.  But in courtrooms around the country, prosecutors are also sweeping up low-level dealers who are addicts trying to support their habit, as well as friends and family members of overdose victims who bought or shared drugs with the deceased. Some critics of the prosecution tactic say these users need treatment, not harsh prison sentences.

Critics see the prosecutions as more of the same drug-war tactics that have filled America’s prisons with nonviolent criminals but done little to stop illicit drug use. There’s scant evidence that fear of prison deters addicts from using, and for every dealer put behind bars, another is ready to take his place, says Lindsay LaSalle, an attorney with the Drug Policy Alliance.

Law-enforcement officials say they’ve seen some signs the prosecutions may be deterring dealers, including jailhouse phone calls they say they’ve overheard in which inmates warn associates that police are pressing homicide charges against drug traffickers.  They say drug-death prosecutions are just one piece of a broader strategy to combat the crisis, including urging addicts into rehab and taking down large-scale traffickers....

A two-hour drive south from Hamilton County, Kerry B. Harvey, the mustachioed U.S. attorney for eastern Kentucky from 2010 to early 2017, made prosecuting drug-deaths a priority around 2015.  He used a 1986 federal law that had rarely been applied in the district, which established a mandatory 20-years-to-life sentence for distributing drugs that resulted in death or serious injury.  The penalty grew to life in prison for defendants with prior felony drug convictions.

He saw the approach as a way to bring solace to families devastated by the increasing number of heroin-related deaths in the area.  Plus, the law’s stiff penalties helped persuade dealers to cooperate against bigger suppliers, he said. “When someone is looking at 20 years to life, they’re gonna tell you whatever they know to save themselves,” he said.

Mr. Harvey assigned three prosecutors to work on the cases and began working with local police to investigate overdose deaths as homicides.  Since 2015 one of the prosecutors, Todd Bradbury, has convicted 16 people for selling drugs that resulted in death, two of whom received life sentences.  One of those convicted was Fred Rebmann, who in 2016 sold $60 of fentanyl to Kathleen Cassity.  Ms. Cassity was six months pregnant and died within hours of buying the drugs. Doctors performed an emergency C-section, but failed to save the life of her unborn child.

At the time, Mr. Rebmann was 31 and spent his days scheming to obtain enough heroin to avoid withdrawal. “I would work odd jobs…steal…hold up signs for money,” he said in an email from prison. He also dealt drugs. “There were days I’d sell heroin to get my own, and there were days I sold scrap metal,” he said in a telephone interview.  Addiction doesn’t “disqualify” small-time dealers like Mr. Rebmann from prosecution, says Mr. Bradbury, the prosecutor.  “He knew he was selling something extremely dangerous to a pregnant woman,” he says.  Mr. Rebmann says he didn’t know Ms. Cassity was pregnant.

Mr. Bradbury offered him a deal.  If Mr. Rebmann pleaded guilty, prosecutors would recommend a 20-year sentence that, with credit for good behavior, could be reduced by three years.  If he went to trial and lost, Mr. Rebmann faced mandatory life in prison because of a 2012 heroin-possession conviction.

Mr. Rebmann took the deal and pleaded guilty in August 2016, but U.S. District Judge Joseph M. Hood, a Vietnam War veteran appointed to the bench in 1990, rejected Mr. Bradbury’s sentencing recommendation.  Ms. Cassity died “because you wanted to stick a needle in your arm,” Judge Hood told Mr. Rebmann, according to a transcript of the hearing.  He sentenced Mr. Rebmann to 30 years in prison. “I want it to be known here in Lexington… if you get convicted of dealing in heroin and a death results, 20 years isn’t enough,” Judge Hood said. “Time for coddling is over.”

The lines I have put in bold in the excerpts above are intended to highlight that, as I have sought to make in some prior blogging on this topic, that whether a drug defendant is prosecuted in federal or state court may ultimately matter a whole lot more than whether a defendant actually faces a formal homicide charge (or even whether the defendant can be linked to an overdose death).  As noted at the outset of this article, the maximum state prison sentence an Ohio defendant can face for involuntary manslaughter is 11 years, but that same defendant can be looking at a mandatory minimum federal prison sentence of 20 years or even LWOP just based on the quantity of drugs even without a direct connection to an overdose death.  Moreover, a defendant facing homicide charges in state court can perhaps hope that a prosecutor will not be able to prove to a jury a sufficient causal link with a drug death beyond a reasonable doubt; a defendant facing a mere allegation of causing a death in federal court has no right to a jury finding or to demand proof beyond a preponderance of the evidence unless that particular finding directly impacts the statutory sentencing range.

These realities serve to inform and underline the importance and significance of an (Obama-appointed) US Attorney like Kerry Harvey deciding to make these cases a federal priority.  This federal prosecutor's stated belief that federal intervention with extreme federal mandatory minimums brings solace to families and enables going after bigger suppliers ultimately likely results in far more prison for far more defendants than any decision by any state prosecutor to start leveraging state homicide laws.

Some prior related posts:

December 18, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Sunday, December 17, 2017

Looking at latest notable Texas death penalty realities

Number_of_executions_between_2000-2017_the_united_states_texas_harris_county_chartbuilder_8a62cc520e6ffbae4480cedf31ee36ed.nbcnews-ux-600-480This new NBC News article, headlined "Why Texas’ ‘death penalty capital of the world’ stopped executing people," reviews how Texas has become fairly representative of the entire United States with a more limited use of capital punishment. Here are excerpts:

Since the Supreme Court legalized capital punishment in 1976, Harris County, Texas, has executed 126 people.  That's more executions than every individual state in the union, barring Texas itself.  Harris County's executions account for 23 percent of the 545 people Texas has executed. On the national level, the state alone is responsible for more than a third of the 1,465 people put to death in the United States since 1976.

In 2017, however, the county known as the "death penalty capital of the world" and the "buckle of the American death belt" executed and sentenced to death an astonishing number of people: zero. This is the first time since 1985 that Harris County did not execute any of its death row inmates, and the third year in a row it did not sentence anyone to capital punishment either.

The remarkable statistic reflects a shift the nation is seeing as a whole. The number of executions has been trending downward across the United States, but it's particularly noticeable in Texas and Harris County.

“The practices that the Harris County District Attorney’s Office is following are also significant because they reflect the growing movement in the United States toward reform prosecutors who have pledged to use the death penalty more sparingly if at all,” said Robert Dunham, the director of the Death Penalty Information Center.

The city of Houston lies within the confines of Harris County, making it one of the most populous counties in the country — and recently it became one of the most diverse, with a 2012 Rice University report concluded that Houston has become the most diverse city in the country. Under these new conditions, Kim Ogg ran in 2016 to become the county’s district attorney as a reformist candidate who pledged to use the death penalty in a more judicious manner than her predecessors, though the longtime prosecutor didn’t say she would abandon it altogether.  Rather, Ogg said she would save it for the “worst of the worst” — such as serial killer Anthony Shore, who was rescheduled for execution next month.

But this year, Ogg appears to have held true to her promise of only pursuing the death penalty in what she deems the most extreme cases.  It represents a break from a long pattern of Harris County prosecutors who pushed for the death penalty in nearly all capital cases. “The overall idea of what makes us safer is changing,” Ogg said. “We’re reframing the issues.  It’s no longer the number of convictions or scalps on the wall. It’s making sure the punishment meets the crime....”

But Ogg said she cannot alone take credit for the recent drop in executions.  The trend precedes her slightly and can also be connected to better educated and more diverse jury pools, as well as Texas’ new sentencing option of life without parole.  The state also has a more skilled group of indigent defense lawyers who build up mitigating circumstances — such as an abusive childhood or mental illness — for an alleged murderer’s crime.

Even a state like Texas might stop sentencing alleged killers to death in the near future. And that trend could well extend nationwide. “We’ve seen a deepening decline in the death penalty since the year 2000, and some states fell faster than others,” said University of Virginia law professor Brandon Garrett, who wrote “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice.” He added that the declines are steepest in counties that had sentenced the most people to death.

December 17, 2017 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Friday, December 15, 2017

Remarkable story of jury sentencing, jury actions and a victim's response from Virginia

A helpful reader made sure I did not miss this remarkable story from Virginia as reported in the Washington Post under the headline "First the jury convicted this 19-year-old maid for stealing. Then they took up a collection to pay her fine." Here are highlights:

After she was arrested, Mendez Ortega spent eight days in jail until she was released on $1,000 bond . The jury was not told that.  The jury also was not told that Mendez Ortega apparently is not in the country legally, as Copeland said she was told by prosecutors, because it was not relevant to whether she stole the rings.  “I think it’s relevant to the case,” Copeland said.  She said the penalties of a felony conviction, such as not being able to vote or buy a gun, would not be actions available to an immigrant in the country illegally anyway....

The trial seemed utterly ordinary.  A 19-year-old maid swiped a woman’s three rings worth at least $5,000 from a house she was cleaning in Fairfax City, Va., but later returned them after the police questioned her.  She was charged with felony grand larceny.

What the jury did was extraordinary.  They felt bad for the young woman, pregnant with her second child, and agreed that she had made a dumb, youthful mistake. Reluctantly, they convicted her of the felony.  But the fine they imposed was her daily pay as a maid, $60. And then they took up a collection and gave her the money to pay the fine.

“The general sentiment was she was a victim, too,” said the jury foreman, Jeffery Memmott. “Two of the women [jurors] were crying because of how bad they felt.  One lady pulled out a $20 bill, and just about everybody chipped in.”  Memmott then contacted the public defender in the case, and went to the home of Sandra Mendez Ortega. He gave her the jury’s collection, which totaled $80....

The two-day trial was held in July, but the sentencing was last Friday before Fairfax County Circuit Court Judge Robert J. Smith.  Mendez Ortega’s lawyer, assistant public defender Michael C. Cash, asked the judge to defer the case and not enter a conviction or sentence in light of the defendant’s actions and the jury’s response.  Smith declined, entered the conviction and imposed the $60 fine.  Numerous veteran criminal lawyers, on both the prosecution and defense sides, said they had never heard of a case where a jury paid a defendant’s fine.

A happy holiday story, right?  Well what if you’re the woman whose rings were stolen?  Although she was not pleased when the jury returned from their deliberations with only a $60 fine for the felony conviction, crime victim Lisa Copeland was appalled when she learned that the jury had also paid the fine.  “I just pray that they’re never in my shoes,” Copeland said. She said Mendez Ortega never accepted responsibility for the theft.  “If she had accepted accountability, I would be okay with all of this.  The fact that she won’t accept accountability makes it wrong.”

Copeland said Mendez Ortega told a series of lies from the start, and then unfurled a tragic life story that convinced the jury to impose a punishment of a $60 fine.  “I was outraged,” Copeland said.  “I was just flabbergasted. I didn’t think $60 equated to the crime at all.” She did not know the jury had taken up a collection for Mendez Ortega until she was contacted by a reporter.

The case began with Copeland’s discovery in September 2016 that her engagement and wedding rings were missing from the container where they were usually kept.  The engagement ring had been her grandmother’s, made in 1943, and the two rings were appraised at $5,000 in 1996, Copeland said.  Copeland didn’t realize a third, inexpensive ring had been taken until it was turned in.... 

At trial, the facts were not really in dispute. The jury did not hear from Mendez Ortega during the case in chief, but they were already sympathetic to her. “We didn’t feel she should have been tried and convicted,” said Memmott, the foreman. “We tried every way we could to find some way of not convicting her.  But the legal standard was very clear.”  Two other jurors agreed that the felony conviction was appropriate, given the facts and the law.  Lisa Copeland was amazed. “The fact that she confessed,” she said, “and they didn’t want to convict her?  I don’t get this. That’s basically saying it’s okay to steal.”

Then during the sentencing phase, Mendez Ortega took the stand.  She faced a possible sentence of up to 20 years in prison and a fine of up to $2,500.  She told the jury she had dropped out of school after sixth grade, that she first became pregnant at 15, that she was pregnant again at 19 and had no job, according to court records. “The whole time she was telling the sob story,” Lisa Copeland said, I looked at my husband and said, ‘I’ve heard enough of this.'”  She noted that after Mendez Ortega took the rings, “she lied to the cops, she lied to her employers.  She didn’t turn in the rings, she made somebody else do it.  She confessed, but claimed that the rings were in the bathroom.  And then she tried to blame her boss.”

When the jury went back to deliberate on a sentence, the jurors said they quickly agreed that no jail time was appropriate, and that only a small fine should be imposed. “We all came to the conclusion,” Memmott said, “we should fine her the amount she made for a day’s work.”...  “The degree of empathy that was shown by these citizens,” said a third juror who asked to remain nameless, “and the serious way everybody took their responsibility, was really remarkable.”

Remarkable is the word I would attach to every part of this story, while also noting that this would only be possible in a jurisdiction like Virginia that includes a system of jury sentencing. Interestingly, this story does not speak to whether or how the victim here spoke during the trial/sentencing proceedings.  I am pretty sure victims in Virginia have a right to speak at sentencing, and I wonder if this now-aggrieved victim is upset in part because she did not exercise that right.

December 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Tuesday, December 12, 2017

Second Circuit panel reverses as unreasonable way-above-guideline sentence for immigration offense

A helpful reader made sure I did not miss a fascinating Second Circuit panel decision today reversing an above-guideline sentence as unreasonable in United States v. Singh, No. 16‐1111 (2d Cir. Dec. 12, 2017) (available here). Here is how the opinion gets started:

In this case, defendant‐appellant Latchman Singh pleaded guilty to one count of illegally reentering the United States after having been removed following a conviction for an aggravated felony.  His Guidelines range was 15 to 21 monthsʹ imprisonment, and both the government and the Probation Office recommended a within‐Guidelines sentence.  The district court, however, sentenced Singh to a term of imprisonment of 60 months ‐‐ nearly three times the top of the Guidelines range.   

Singh appeals, contending that the sentence was both procedurally and substantively unreasonable.  For the reasons set forth below, we vacate the sentence and remand for further proceedings.  Singhʹs request that we order reassignment of the case to a different judge is denied. 

The opinion goes on to thoughtfully explain its substantive and procedural concerns with the sentence imposed; the discussion defies easy summary and lots of passages could merit highlighting. Here is one from the end of the opinion that seemed especially notable:

ʺSentencing, that is to say punishment, is perhaps the most difficult task of a trial court judge.ʺ  Jack B. Weinstein, Does Religion Have a Role in Criminal Sentencing?, 23 Touro L. Rev. 539, 539 (2007).  While there are many competing considerations in every sentencing decision, a sentencing judge must have some understanding of ʺthe diverse frailties of humankind.ʺ  See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion).  In deciding what sentence will be ʺsufficient, but not greater than necessaryʺ to further the goals of punishment, 18 U.S.C. § 3553(a), a sentencing judge must have a ʺgenerosity of spirit, that compassion which causes one to know what it is like to be in trouble and in pain.ʺ  Guido Calabresi, What Makes a Judge Great: To A. Leon Higginbotham, Jr., 142 U. Pa. L. Rev. 513, 513 (1993); see also Edward J. Devitt, Ten Commandments for the New Judge, 65 A.B.A. J. 574 (1979), reprinted in 82 F.R.D. 209, 209 (1979) (ʺBe kind.  If we judges could possess but one attribute, it should be a kind and understanding heart.  The bench is no place for cruel or callous people regardless of their other qualities and abilities.  There is no burden more onerous than imposing sentence in criminal cases.ʺ).

To the extent the district court increased Singhʹs punishment because of a perception that in attempting to explain his actions and plead for mercy he did not fully accept responsibility, it committed procedural error.

December 12, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7)

Curious reminder of limits of empirical evidence showing federal sentencing disparity before modern guideline reforms

ProPublica has this lengthy new article that seems way too eager to suggest that some empirical shenanigans fester below the Supreme Court's 1989 Mistretta opinion upholding the structure of the Sentencing Reform Act of 1984. The full headline and subheadline showcases the ominous theme of this reporting, "Suspect Evidence Informed a Momentous Supreme Court Decision on Criminal Sentencing: The U.S. Sentencing Commission helped send more people to prison for longer terms. It’s a shame it was created to address a nonexistent crisis. Here’s how the Supreme Court got misled."  I fear that ProPublica's valuable push to fact-check SCOTUS opinions has, in this case, led to some problematic assertions about the history of sentencing reform and Mistretta.  Though this blog space is not an ideal setting for nitpicking this long ProPublica piece, the article's start (with one sentence emphasized) provides a flavor for its points and problems:

More than 30 years ago, Congress identified what it said was a grave threat to the American promise of equal justice for all: Federal judges were giving wildly different punishments to defendants who had committed the same crimes.  The worries were many.  Some lawmakers feared lenient judges were giving criminals too little time in prison. Others suspected African-American defendants were being unfairly sentenced to steeper prison terms than white defendants.

In 1984, Congress created the U.S. Sentencing Commission with remarkable bipartisan support.  The commission would set firm punishment rules, called “guidelines,” for every offense.  The measure, signed by President Ronald Reagan, largely stripped federal judges of their sentencing powers; they were now to use a chart to decide penalties for each conviction, with few exceptions.

Five years later, a legal challenge to the sentencing commission wound up before the U.S. Supreme Court.  In a case titled Mistretta v. U.S., the court was asked to consider whether Congress had overreached by taking on what seemed to be a role for the judiciary.  In an 8-1 decision, the justices determined that the sentencing commission was constitutional.  And they took care to say that the commission was also needed — to end the widespread and “shameful” sentencing disparities produced by the biases of individual judges.

Mistretta was a momentous decision, but it’s now clear the high court relied on evidence that was flimsy and even flat-out wrong.  The justices, in issuing the 1989 decision, had cited a single congressional report in concluding that there were disturbing and unacceptable sentencing disparities that needed to be addressed.  That single report, in turn, was based primarily on two studies conducted in the early 1970s, both deeply flawed.

Critically, the Mistretta case legally and practically did not turn at all on whether researchers had adequately proven pre-guideline sentencing disparity or whether Congress relied on "flimsy" evidence when enacting the Sentencing Reform Act.  Constitutional issues, not empirical ones, were the focal point of Mistretta.

To its credit, this ProPublica article does a nice job spotlighting problems with the disparity evidence cited by Congress in the legislative history of the Sentencing Reform Act.  But Kate Stith and Jose Cabranes made this point effectively two decades ago in Fear of Judging, and sentencing reforms in the 1970s and 1980s, at both the federal and state level, were driven by (and could be justified by) a lot more than just concerns about sentencing disparities.  Moreover, and perhaps most important, the few cites by Congress to studies about sentencing disparities were really only the tip of the evidentiary iceberg: as Norval Morris stressed in this great 1977 piece, he started effectively documenting "gross and unjust variations in sentences imposed on convicted criminals" in the 1950s.  As he put it, by the mid 1970s, the decade before Congress enacted the Sentencing Reform Act, "the data on unjust sentencing disparity [had] indeed become quite overwhelming and will ... convince anyone who will take the time to study them."   

In short, I think it deeply misguided to label the concerns about sentencing disparities before modern reforms a "nonexistent crisis," and it is even more problematic to suggest that these concerns were the only reason Congress passed the SRA or the only reason Mistretta came out as it did.  I am always grateful for journalism seeking to thoughtfully unpack federal sentencing reforms and Supreme Court sentencing rulings, and there can and should be continued debate about whether and how modern sentencing reforms may have increased rather than reduced certain types of sentencing disparities.  But the notion that there were not any truly justified concerns about sentencing disparity before modern reforms cannot withstand serious scrutiny, nor can the suggestion that SCOTUS was "misled" by bad data in its Mistretta ruling.

December 12, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Monday, December 11, 2017

"Assessing Risk Assessment in Action"

The title of this post is the title of this interesting new paper available via SSRN authored by Megan Stevenson.  Though the paper addresses pretrial risk-assessment, I think folks interested in risk-assessment tools at sentencing should be interested in the findings.  Here is the abstract:

Recent years have seen a rush towards evidence-based tools in criminal justice.  As part of this movement, many jurisdictions have adopted actuarial risk assessment to supplement or replace the ad-hoc decisions of judges.  Proponents of risk assessment tools claim that they can dramatically reduce incarceration without harming public safety. Critics claim that risk assessment will exacerbate racial disparities. Despite extensive and heated rhetoric, there is virtually no evidence on how use of this “evidence-based” tool affects key outcomes such as incarceration rates, crime, or racial disparities.  The research discussing what “should” happen as a result of risk assessment is hypothetical and largely ignores the complexities of implementation.

This Article is one of the first studies to document the impacts of risk assessment in practice.  It evaluates pretrial risk assessment in Kentucky, a state that was an early adopter of risk assessment and is often cited as an example of best-practices in the pretrial area.  Using rich data on more than one million criminal cases, the paper shows that a 2011 law making risk assessment a mandatory part of the bail decision led to a significant change in bail setting practice, but only a small increase in pretrial release. These changes eroded over time as judges returned to their previous habits.  Furthermore, the increase in releases was not cost-free: failures-to-appear and pretrial crime increased as well.  Risk assessment had no effect on racial disparities in pretrial detention once differing regional trends were accounted for.

Kentucky’s experience does not mean we should abandon risk assessment, but it should temper the hyperbolic hopes (and fears) about its effects.  Risk assessment in practice is different from risk assessment in the abstract, and its impacts depend on context and details of implementation.  If indeed risk assessment is capable of producing large benefits, it will take research and experimentation to learn how to achieve them.  Such a process would be evidence-based criminal justice at its best: not a flocking towards methods that bear the glossy veneer of science, but a careful and iterative evaluation of what works and what does not.

December 11, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (8)

"Graduating Economic Sanctions According to Ability to Pay"

The title of this post is the the title of this new and timely article authored by Beth Colgan now available via SSRN. Here is the abstract:

There is growing recognition that economic sanctions — fines, surcharges, fees, and restitution — are routinely imposed at rates many people have no meaningful ability to pay, which can exacerbate financial instability and lead to the perception that economic sanctions are unfairly punitive to people of limited means.  Concerns triggered primarily by highly punitive tactics, including incarceration and long-term probation of low-income debtors for the failure to pay, have led to increasing calls for reform.  While much attention is now being paid to the back-end of the system, and particularly limitations on punitive responses for the failure to pay due to poverty, this Article considers the problem from the front-end.  In particular, this Article focuses on a potential reform with increasing bipartisan support: the graduation of economic sanctions according to a person’s financial circumstances.

To that end, this Article explores several key considerations essential to designing a system of graduation, relying heavily on a largely-forgotten experiment in seven geographically, demographically, and politically diverse jurisdictions in the United States with the “day-fine.”  A day-fine is calculated using a penalty unit assigned based on the seriousness of the offense of conviction.  The penalty unit is then multiplied by the defendant’s adjusted daily income to determine the day-fine amount.  The result is an economic sanction adjusted to offense seriousness and simultaneously graduated to the defendant’s financial condition.  This Article mines the historical record of the American day-fines experiments — complemented by recent interviews with people involved in the design and implementation of the projects and experiences with means-adjustment in the consumer bankruptcy, tax, and public benefits contexts — for lessons on the design of graduating economic sanctions.  What emerges from this review is promising evidence that a properly designed and implemented system for graduation is consistent with efficient court administration, revenue generation, and equality in sentencing. 

December 11, 2017 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Sunday, December 10, 2017

Is due process satisfied by a "minimal indicia of reliability" standard for key sentencing evidence and determinations?

The question in the title of this post is prompted by an opinion issued earlier this year by the Supreme Court of Delaware in Smack v. Delaware, No. 601 (Del. Oct. 11, 2017) (available here). The first paragraph of the Smack opinion provides the basic facts and procedural issue:

Adrin Smack pleaded guilty to four counts of drug dealing, one count of possession of a firearm by a person prohibited, and one count of conspiracy second degree.  At sentencing, the State claimed that Smack acted as a “kingpin” in a drug operation and should be sentenced to the fifteen years recommended by the State instead of the eight years recommended by the defendant.  Smack requested an evidentiary hearing as part of sentencing, and argued that the State must prove his status as a drug “kingpin” by a preponderance of the evidence.  The Superior Court denied Smack’s request for an evidentiary hearing and ruled it could consider evidence offered by the State at sentencing if it met a “minimal indicia of reliability” standard. The court sentenced Smack to an aggregate of fourteen years at Level V followed by probation. Smack appeals and argues the Superior Court violated his due process rights by denying him an evidentiary hearing and applying the wrong burden of proof at sentencing.  According to Smack, the State was required to prove by a preponderance of the evidence that Smack was a drug kingpin.  Because this Court has previously upheld the use of a minimal indicia of reliability standard to consider evidence offered at a sentencing hearing, and due process does not require an evidentiary hearing, we affirm the Superior Court’s decision.

Here is the heart of the Delaware Supreme Court's analysis of the issue and rejection of the defense's contentions (with footnotes removed):

First, this Court settled the evidentiary standard in Mayes v. State, holding that “in reviewing a sentence within statutory limits, this Court will not find error of law or abuse of discretion unless it is clear from the record below that a sentence has been imposed on the basis of demonstrably false information or information lacking a minimal indicium of reliability.”  Smack argues Mayes does not apply because the standard was not contested.  But the fact the standard was not at issue is irrelevant — the Court explicitly stated the sentencing judge “comported with due process by relying on information meeting the ‘minimal indicium of reliability beyond mere allegation’ standard.”  Subsequent cases rely on Mayes in applying this standard.

Smack relies on a series of federal cases where the court applied a preponderance of the evidence standard to establish facts warranting a sentence enhancement under the federal sentencing guidelines.  According to Smack, the same burden of proof should apply to the State when it argued for a harsher sentence based on Smack’s status as a drug kingpin.  The federal cases, however, are inapposite.  Under the federal sentencing guidelines, the judge must find facts at sentencing using evidentiary burdens because those factual determinations can cause an increase in the sentencing ranges under the guidelines.  Here, Smack’s guilty plea resulted in a sentencing range of two to seventy-six years. To fix the sentence within that statutory range, the judge was entitled to consider all facts that had a minimal indicia of reliability — including the intercepted text messages and phone conversations that led to the seventy-seven charges of drug dealing brought against Smack.  The court could and did find from these facts that Smack was more than a street-level drug dealer.

As hard-core sentencing fans know, the Supreme Court three decades ago in McMillan v. Pennsylvania, rejected a challenge to a Pennsylvania statute's use of a preponderance-of-the-evidence standard in the application of a mandatory minimum sentencing statute.  Chief Justice Rehnquist in that opinion explained why the Court had "little difficulty concluding that ... the preponderance standard satisfies due process."  Of course, aspects of McMillan were overturned in Alleyne v. US with respect to any fact-finding that formally alters any legal limit of a judge's sentencing discretion, but that decision itself stressed it was not contradicting "the broad discretion of judges to select a sentence within the range authorized by law."  

Through communications with the attorney representing in the defendant in this case, I have learned that a cert petition is in the works.  Given the remarkable reality that we have gone nearly 230 years into our constitutional history without having come close to settling just what due process means at sentencing, I think it would be great (and long overdue) for SCOTUS to take up a case like this.

December 10, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Fascinating look at sentencing mitigation videos (and advocacy film festival)

The New York Times has this great new "op-doc" by Lance Oppenheim on the topic of sentencing mitigation videos under the headline "No Jail Time: The Movie." All sentencing fans will want to take the full 10 minutes to check out the video that is the heart of this op-doc (e,g., two-thirds in is an interesting reference to "the real America"). Here is part of the text that the filmmaker has with the video:

When my parents went to law school in the 1980s, they took courses on contracts, torts, criminal law, constitutional law — the list goes on. While there were lessons on persuasion, to be sure, they never took a class on how to tell a story. And they certainly never learned how to make a film.

Today, however, a growing number of lawyers are creating empathetic biographical mini-documentaries, or “sentencing videos,” to reduce their clients’ prison sentences. Inspired by the storytelling techniques of traditional documentary film, some lawyers team up with independent filmmakers while others become filmmakers themselves. These films are made for an audience of one: the presiding judge.

While videos have historically been permitted in the courtroom, this phenomenon took off in 2005, when the Supreme Court, in United States v. Booker, allowed trial courts to consider an offender’s “personal history and characteristics.” Before Booker, judges were bound by sentencing guidelines and were generally restricted in looking past a defendant’s crime and criminal record.

In sentencing videos, lawyers try to portray their clients in a positive light, notwithstanding the nature of the crime of which they were found guilty. These short videos, which can cost $5,000 to $25,000 to make, can be extremely effective, sometimes substantially decreasing sentences, including those involving the death penalty.

I immersed myself in this phenomenon at the The Sentencing and Post-Conviction Film Festival, held in New Orleans in June at an annual training conference for federal public defenders. The event is organized by Doug Passon, an attorney, filmmaker, attorney-filmmaker, and sentencing video expert.

Mr. Passon, who took film classes after law school and now runs a joint law firm and video production company in Scottsdale, Ariz., treats sentencing videos in an artful manner nearly indistinguishable from narrative-driven, fictional films. He has narrowed his focus to how sentencing videos can sway a judge’s decision. Having seen results from his own clients’ films, he’s determined to teach other lawyers how to create powerful stories.

In a drab hotel conference room filled with beleaguered lawyers, Mr. Passon offers a model: “Make judges suffer.” Not only should judges “agonize over the proper sentence in each case,” Mr. Passon said, they must also “truly feel the client’s pain as they do so.”

In photography and film, there’s an elusive color tone halfway between black and white called middle gray. Just like the phenomenon of middle gray, sentencing videos exist in an in-between space where legal conceptions of fact and fiction, right and wrong, become amorphous. Even though the videos are grounded in truth, their ability to play with judges’ emotions challenge the courtroom’s conception of “truth, the whole truth, and nothing but the truth.” What I discovered from looking at the growing practice of sentencing videos was far more complicated than I ever imagined.

In the aftermath of making this film, and as a filmmaker myself, I have continued to ask myself whether all documentaries are like sentencing videos. Facts presented in a subjective manner, with footage altered or deleted to serve the filmmaker’s message and elicit a particular emotion from an audience. In the case of sentencing mitigation films, we know the judge will be the final arbiter. For all other documentaries, though, the court of public opinion will need to decide what is, in fact, “true.”

A few prior related posts about sentencing videos:

December 10, 2017 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (3)