Tuesday, August 30, 2016

Lameting modern parole practices while making a case that "Jailing Old Folks Makes No Sense"

The quoted title of this post is the headline of this new New York Times op-ed authored by Geraldine Downey and Frances Negrón-Muntaner.  But, as these extended excerpts from the commentary highlight, the piece is mostly focused on problems with modern parole decision-making:

In 1980, the methadone clinic that had been treating Gloria Rubero as an outpatient dropped her. She was soon desperate for drugs. In August that year, she and an associate took part in a burglary that went wrong and led to the murder of an elderly neighbor.  Ms. Rubero was arrested three days later, and was eventually convicted of robbery and second-degree homicide.  The judge at Ms. Rubero’s trial gave her an indeterminate sentence of 20 years to life.

At the start of her jail term, Ms. Rubero felt suicidally depressed.  But over time, she devoted herself to helping others.  In 1985, she became a founding member of the Youth Assistance Program and logged more than 200 hours of speaking to at-risk youth on the harshness of prison life.... Ms. Rubero also got an education: earning, first, her G.E.D.; and then, between 1992 and 1993, an associate in arts and a bachelor of science from Mercy College, in Dobbs Ferry, N.Y. She even made the dean’s list. [S]he also joined the maintenance staff, and excelled at electrical and plumbing work [and later] was accorded the very rare privilege of carrying tools like craft knives, screwdrivers and wire cutters.

Despite this record of rehabilitation, she was denied parole five times in a period of six years.  Each time, the parole board concluded that Ms. Rubero could not be granted parole because the “serious” and “violent” nature of her crimes made her release “incompatible with the welfare and safety of the community.”  In 1999, Ms. Rubero suffered several major strokes, and at a subsequent parole board hearing, she was unable to walk or talk. Yet she was still considered a danger to the community, and her application was denied. Ms. Rubero gradually recovered, and finally, after her sixth hearing, was granted parole and walked out of prison.  She was 56 and had spent 26 years behind bars.

Many incarcerated people would be the first to acknowledge the pain and loss their crimes caused.  But if prisoners older than 50 have served decades-long sentences and have shown evidence of rehabilitation, the only rationale for holding them appears to be endless punishment and retribution.

The problem is growing as the American prison population gets grayer.  By 2012, there were almost 125,000 inmates age 55 and older out of a total population of 2.3 million. Even as the overall prison population continues to decrease, it is estimated that by 2030, there will be more than 400,000 over 55s — a staggering increase from 1981, when there were only 8,853.  The numbers are rising despite recognition that continuing to lock up older prisoners not only does nothing to reduce crime, but is also expensive and inhumane.  More and more aging people are becoming seriously ill and dying in prison.  Prisons are not equipped to be nursing homes.

And there is mounting evidence that there is little, if any, public safety benefit to keeping people like Ms. Rubero in prison for so long.  According to recent studies, a vast majority of people over 50 who are released from prison in the United States, including those with convictions for violent offenses, are much less likely to commit a crime than younger people who have never been incarcerated.  Nationally, rearrests occur for only 2 percent of former prisoners over 50, and hardly at all among over-65s.  Most people simply age out of crime.

If older people in prison pose so little danger, why not free them?  As Ms. Rubero’s experience suggests, a major reason is a resistance to granting parole.  The criteria of parole boards in states like New York include assessments of a prisoner’s possible threat to public safety and her chances of reintegrating into society.  Yet boards primarily base their decisions to deny on the seriousness of the crime for which the person was convicted.

Overlooking the fact that elderly people who have served long sentences are not a public safety risk, parole boards focus instead on the past criminal behavior.  In effect, they prefer to resentence the prisoner rather than make a judgment about the individual’s growth since entering prison.

What can be done to change course and stop spending billions of taxpayer dollars to keep people behind bars for excessive lengths of time ? An immediate first step would be for parole boards to give more weight to a prisoner’s transformation since entering her incarceration. Indefinitely locking up prisoners who pose no security risk once they have served their minimum term and who could contribute more outside is an inexcusable waste of money and human potential.

August 30, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Feds takeover of "The Playpen" to facilitate child-porn distribution now generating court controversies

In this post from back in January, I noted early reports of a surprising government operation of a notorious "dark-web" child porn website and asked "Will FBI child porn operations generate same controversy as Fast and Furious?". This Seattle Times article highlights that the controversy is starting to find expression in motions by criminal defendants to dismiss prosecutions based on what they call outrageous government actions. Here are the basics:

For two weeks in the spring of 2015, the FBI was one of the largest purveyors of child pornography on the internet. After arresting the North Carolina administrator of The Playpen, a “dark web” child-pornography internet bulletin board, agents seized the site’s server and moved it to an FBI warehouse in Virginia.

They then initiated “Operation Pacifier,” a sting and computer-hacking operation of unparalleled scope that has thus far led to criminal charges against 186 people, including at least five in Washington state.

The investigation has sparked a growing social and legal controversy over the FBI’s tactics and the impact on internet privacy.  Some critics have compared the sting to the notorious Operation Fast and Furious, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed the illegal sales of thousands of guns to drug smugglers, who later used them in crimes.

Defense attorneys and some legal scholars suggest the FBI committed more serious crimes than those they’ve arrested — distributing pornography, compared with viewing or receiving it.  Moreover, the FBI’s refusal to discuss Operation Pacifier and reveal exactly how it was conducted — even in court — has threatened some of the resulting criminal prosecutions.

Last month, a federal judge in Tacoma suppressed the evidence obtained against a Vancouver, Wash., school district employee indicted in July 2015 on a charge of receiving child pornography because the FBI refused to reveal how it was gathered.  Similar motions are pending in other prosecutions in Washington and elsewhere around the country.

During the two weeks the FBI operated The Playpen, the bureau says visitors to the site accessed, posted or traded at least 48,000 images, 200 videos and 13,000 links to child pornography.  At the same time, agents deployed a secret “Network Investigative Technique,” or NIT, to invade their computers, gather their personal information and send it back to the FBI.

According to court documents, between Feb. 20 and March 4, 2015, as many as 100,000 people logged onto the site, which was accessible only by using the anonymous “Tor” browser, which encrypts and routes internet traffic through thousands of other computers to hide the identity of a user.  Tor, which is used for private communications by government officials, lawyers, journalists, judges and others, was thought to be virtually uncrackable until news of the FBI’s operation became public....

In [court] pleadings, the government has defended the operation as the only way to pierce the anonymity of the so-called “dark web” and get at the criminals who dwell there.  Such websites cannot be found by Google or by typing in a web address and are typically operated on the Tor network. “The United States, the FBI, did not create this website,” said Assistant U.S. Attorney Keith Becker, a trial attorney with the DOJ’s Child Exploitation and Obscenity Section, at a Tacoma court hearing in January. “It was created by its users, and administrators, and existed and substantially distributed child pornography long before the government took it over in an effort to actually identity its criminal users.”

Defense attorneys, however, alleged in filings last week that FBI agents actually improved The Playpen site during the two weeks they had control, making it faster and more accessible.  Visitation of The Playpen while under FBI control jumped from 11,000 to 50,000 people a week.  “This is easily the largest domestic use of hacking by law enforcement in U.S. history,” said Mark Rumold, a senior staff attorney at the Electronic Frontier Foundation, a digital freedom and legal services nonprofit in San Francisco. “The problem is that there just aren’t a lot of rules on how they go about it.”

“I will not be surprised at all if we wind up before the U.S. Supreme Court,” he said. Critics also accuse the FBI of committing crimes more serious than it was investigating — distribution of pornography versus receiving it — and say the operation flies in the face of the Justice Department’s pronouncement that a child is re-victimized every time a pornographic photo is viewed or distributed.

Chris Soghoian, the principal technologist and a senior policy analyst with the American Civil Liberty Union’s Speech, Privacy, and Technology Project, said The Playpen investigation bears striking similarities to Operation Fast and Furious. “Except here, it’s child porn,” Soghoian said....

Last month, U.S. District Judge Robert Bryan in Tacoma threw out the evidence in one of the first “Operation Pacifier” prosecutions, involving a Vancouver school employee named Jay Michaud.  The reason: The FBI has refused a court order to reveal to Michaud’s defense attorneys the nature of the Tor vulnerability or how the NIT works.  Michaud is accused of visiting the Playpen site multiple times during the two weeks it was under FBI control and viewing explicit photos of children being sexually abused. He faced up to 20 years in prison. With the evidence tossed out, Michaud’s case likely will be dismissed. The government has appealed the judge’s decision.

A federal judge in Oklahoma reached the same conclusion in an Operation Pacifier case there, and similar motions are pending in dozens of other cases.  Bryan has also allowed two other Operation Pacifier defendants in Washington state to withdraw guilty pleas so they can challenge the government over the issue.

Michaud’s attorney, Colin Fieman, a Tacoma-based federal public defender, is leading a “national defense working group” that is tracking and coordinating challenges to Operation Pacifier cases.... The case has shown that the “FBI cannot be trusted with broad hacking powers,” Fieman said.  “There is no question that the internet poses serious challenges to law enforcement,” Fieman said. But he believes that in its desire to overcome those challenges — and fight the scourge of child pornography — the agency “has lost its moral compass and is willing to ignore the rules and even break the law to extend its reach.”

Michaud and other defendants have also sought to have their charges dismissed due to “outrageous government conduct” over the FBI decision to take it over and leave the site running. “It is impossible to reconcile the Playpen operation with the government’s own view of the harm caused by the distribution of child pornography,” Fieman wrote in motion to dismiss another Washington case filed last week. “The DOJ routinely emphasizes … that possessing and circulating pornographic images re-victimizes the children depicted in them.”...

Judge Bryan rejected that argument in the Michaud case, stating during a January hearing that agents were “trying to catch the bad guys, so to speak.”

“Whether they did it right is a different thing,” he said. “But they didn’t do it wrong as to be grossly shocking or outrageous to violate the universal sense of justice” and warrant dismissing the charges.

Prior related post:

August 30, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Monday, August 29, 2016

Detailing efforts by Michigan prosecutors to have LWOP juveniles resentenced to LWOP

This lengthy local article, headlined "Michigan prosecutors defying U.S. Supreme Court on ‘juvenile lifers’," details some of the remarkable efforts of Michigan's local prosecutors in response to the Supreme Court's Miller and Montgomery rulngs requiring the resentencing of juvenile murderers preiously given mandatory LWOP sentences.  Here are some extended excerpts:

Prosecutors across Michigan are fighting to uphold sentences for most of the 350-plus prison inmates now serving mandatory life terms for crimes they committed as juveniles.  Their stance is in apparent defiance of a U.S. Supreme Court directive this year that courts across the nation are supposed to reduce life sentences for young offenders except in only “rare” cases.

According to data, which Bridge obtained from a network of Michigan lawyers, at least nine county prosecutors are asking judges to uphold life sentences for every so-called “juvenile lifer” convicted in their courts.  They argue that these inmates, including some who have behind bars for decades, can never be safely returned to society.

“I think what the prosecutors are doing is appalling,” said Ann Arbor lawyer Deborah LaBelle, a prisoner rights advocate who is organizing free legal representation for about 100 juvenile lifers.  “The Supreme Court says the vast majority have to have the chance at being paroled,” LaBelle said.  “You can’t just lock them up and throw away the key for things they did as a child.”

Among the most resistant to the Supreme Court’s ruling: Saginaw County Prosecutor John McColgan Jr., who wants to uphold 21 of 21 sentences in which life terms were given to juvenile defendants.  It’s nine of nine in Kalamazoo County. And seven of seven in Muskegon County.  

Meanwhile, Oakland County Prosecutor Jessica Cooper has asked judges to uphold mandatory life sentences for 44 of 49 inmates who committed crimes as juveniles.  In Genesee County, Prosecutor David Leyton is asking the same in 23 of 27 cases.

More broadly, four large Michigan counties — Genesee, Oakland, Saginaw and Wayne — account for 150 of the 218 cases for which prosecutors are seeking to uphold life without parole. In Wayne County, which includes Detroit, Prosecutor Kym Worthy is seeking life without parole in 61 of 153 cases – hardly rare at 40 percent, but lower than Oakland County’s request to uphold 90 percent of juvenile life sentences.

Oakland County Sheriff Michael Bouchard put an incendiary exclamation mark on the position of prosecutors when he held a press conference in July in which he compared juvenile lifers to a famous fictional serial killer. “I looked at a sample of these individuals and they are Hannibal Lecters who committed very heinous murders — often, multiple murders — and then they’ve continued to display very assaultive behavior in prison and show no remorse,” Bouchard said.

Overall, according to the data, prosecutors are seeking to uphold life-without-parole sentences for 218 of the 363 men and women in state prisons for crimes committed as minors.  Most were convicted of first-degree murder or of abetting first-degree murder. Some were as young as 14.  The oldest is now 71.  The effort to keep juvenile lifers permanently behind bars faces pushback from legal advocates, as well as some federal prosecutors....

Prosecutors in Michigan were given a July deadline to name juvenile lifers within their jurisdictions who they contend remain too dangerous to ever walk free.  Those named will face an eventual mini-trial in which prosecutors have to prove they were among the irretrievably depraved.  The facts of the original crime, statements by friends or relatives of the victim and each inmate’s background and behavior in prison are to be weighed.  For those lifers not targeted by prosecutors, legislation signed by Gov. Snyder in 2014 spells out a default minimum sentence of 25 years in prison to maximum of 60 years....

In an interview with Bridge, Oakland County prosecutor Cooper called the 44 cases that she challenged for parole some of the most “heinous” crimes she has seen.  She said her decision on those cases was reached only after months of exhaustive review. “We are talking about victims who were stabbed, drowned, bludgeoned and decapitated,” Cooper said. “We are not talking about people who took Dad’s car and drove over somebody’s lawn.  Many of these crimes were totally random. They walked up to a car and decided to shoot in it. On and on and on and on. We are really talking about awful cases.”...

Michael Dettmer, former U.S. Attorney for Michigan’s Western District, joined with another former Western District U.S. Attorney, James Brady, and Richard Rossman, former U.S. Attorney for the Eastern District, recently wrote an op-ed condemning the move by state prosecutors to challenge lesser sentences for juvenile lifers.  “As former U.S. Attorneys,” they wrote, “we would have expected Michigan prosecutors to understand Montgomery’s central tenet that children are uniquely capable of growth and maturation and must be able to demonstrate their rehabilitation.

“Instead, too many prosecutors are focusing on the crime committed by a troubled adolescent without exercising the judgment to recognize whether the adult before them today has rehabilitated himself.”  Dettmer said he considers state prosecutors’ push to keep so many in prison for life “a slap in the face” of the court’s instruction on rehabilitation.

But county prosecutors have a powerful ally in Michigan Attorney General Bill Schuette.  Schuette has vigorously fought reconsideration of juvenile life sentences, filing a friend of the court brief in 2015 in the Montgomery case on behalf of Michigan and 15 other states opposing any retroactive look at those sentences.  Asked to comment on the high rate of challenges by county prosecutors, a Schuette spokesperson said, “In general, Attorney General Schuette supports local prosecutors and their decisions.”

August 29, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

"Quantifying Criminal Procedure: How to Unlock the Potential of Big Data in Our Criminal Justice System"

The title of this post is the title of this notable new paper by my OSU colleague Ric Simmons available via SSRN. Though this paper is mostly focused on the use of big data in police practices, all serious students of sentencing know that big data can and does also play a role in risk assessments and other post-conviction decision-making. Here is the abstract:

Big data’s predictive algorithms have the potential to revolutionize the criminal justice system. They can make far more accurate determinations of reasonable suspicion and probable cause, thus increasing both the efficiency and the fairness of the system, since fewer innocent people will be stopped and searched.

However, three significant obstacles remain before the criminal justice system can formally use predictive algorithms to help make these determinations. First, we need to ensure that neither the algorithms nor the data that they use are basing their decisions on improper factors, such as the race of the suspect. Second, under Fourth Amendment law, individualized suspicion is an essential element of reasonable suspicion or probable cause.  This means that either the predictive algorithms must be designed to take individualized suspicion into account, or the predictive algorithms can only be used as one factor in determining whether the legal standard has been met, forcing police and judges to combine the algorithm’s results with individualized factors. And finally, the legal standards themselves must be quantified so that police and judges can use the numerical predictions of big data in their reasonable suspicion and probable cause determinations.

These obstacles are not insurmountable. And if the necessary changes are made, the criminal justice system will become far more transparent, since the factors the algorithms take into consideration will necessarily be open for judges and the general public alike. Furthermore, setting a quantified likelihood for reasonable suspicion and probable cause will allow us to engage in a healthy debate about what those numbers ought to be, and it will also ensure conformity across different jurisdictions.

August 29, 2016 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Fourth Circuit ruling highlights circuit split (and general insanity) regarding loss calculations and guideline sentencing in securities fraud case

The Fourth Circuit on Friday handed down a lengthy opinion in US v. Rand, No. 15-4322 (4th Cir. Aug. 26, 2016) (available here), affirming the convictions and sentence of a white-collar defendant "following his involvement in earnings mismanagement and improper accounting transactions while acting as chief accounting officer at Beazer Homes USA, Inc." The sentencing discussion in Rand occupies only six pages of a 35+ page opinion, but those pages include elements of what I see as so very insane about loss calculations and guideline sentencing in security fraud cases.  These background paragraphs from the Rand opinion provide the foundation for my insanity complaint:

U.S. Sentencing Guideline § 2B1.1 sets the offense level for certain fraud offenses and requires an increase based on the loss caused by the offense conduct, in accordance with a table in § 2B1.1(b)(1). An application note instructs that “in a case involving the fraudulent inflation or deflation in the value of publicly traded security,” loss should be calculated based on how the price of a security changed, “after the fraud was disclosed to the market.” U.S.S.G. § 2B1.1 Application Note 3(F)(ix).

At sentencing, the parties debated which of Beazer’s three public disclosures qualified as the date on which the “fraud was disclosed to the market”.... The court determined that the fraud was disclosed in June and August and that the loss to investors following those dates was $135 million. Accordingly, the district court calculated an offense level of 51 for a guidelines range of life imprisonment, capped by the statutory maximum.  The parties agreed that if the October date were used, the resulting loss would be $0. Had the district court used the loss amount following the October disclosure, Rand’s offense level would have been 19, with a range of 30 to 37 months.  The court ultimately varied downward from the guidelines range of life imprisonment and imposed a ten-year sentence.

In other words, it seems here that the facts surrounding the defendant's criminal behavior is not in serious dispute for sentencing purposes, but there is a big legal dispute over how the federal sentencing guidelines take stock of the "loss" cause by this behavior. And, remarkably, for calculating the advisory guidelines sentencing range, one legal take on this issue calls for the defendant to get an LWOP+ sentence, but the other legal take calls for the defendant to get no more than about 3 years' imprisonment. I do not think it is insane for me to assert that it is insane for so radically different guideline prison recommendations to hinge on a technical legal dispute over loss calculations.

Adding to the insanity, at least in my view, is the Fourth Circuit panel's subsequent explanation for why it is disinclined to follow the Second and Fifth Circuits in having the US Supreme Court's "Dura [civil case] loss-causation principles apply to criminal securities fraud cases."  In short form, the Fourth Circuit panel agrees with "the Third, Sixth, and Ninth Circuits [which] have declined to apply Dura in the context of criminal sentencing" largely because concerns about mis-attributing "loss" are distinct in the civil and criminal contexts.  I fully agree that concerns about mis-attributing loss are distinct in the civil and criminal contexts, but it seems backward to make it much easier to attribute loss (as does the Fourth Circuit and other circuits refusing to adopt Dura loss-causation principles) in criminal cases where life and liberty (and not just property) are at stake.

In any event, and perhaps quite wisely, in the Rand case as noted in the case excerpt, the sentencing judge ultimately did not follow the guidelines range of life imprisonment when sentencing the defendant.  The defendant he was sentenced "only" to 120 months' imprisonment, which obviously constitutes a huge downward variance from the guidelines' LWOP recommendation (though also, of course, constitutes a huge upward variance if the Rand’s offense level really should have been 19 with a range of 30 to 37 months' imprisonment).  In this way, I suppose, the sentencing judge in Rand did what he could to stop the guidelines insanity.

August 29, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, August 28, 2016

"Federal Review of State Criminal Convictions: A Structural Approach to Adequacy Doctrine"

The title of this post is the title of this notable new paper authored by Eve Brensike Primus now available via SSRN.  Here is the abstract:

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules.  When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits.  As a result, systemic violations of criminal procedure rights — like the right to effective counsel — persist without judicial correction.

But the law contains a tool which, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy.   Procedural adequacy doctrine gives federal courts the power to ignore procedural defaults and declare state procedural rules inadequate when those rules unduly burden defendants’ abilities to assert violations their federal rights.  And unlike the more commonly invoked cause-and-prejudice doctrine, which excuses default on the theory that a defendant’s unusual circumstances justify an exception to the rules, procedural adequacy doctrine allows courts to question the legitimacy of the state procedural regimes themselves.  As a result, procedural adequacy doctrine can catalyze reform in a way that cause-and-prejudice cannot.

For procedural adequacy litigation to catalyze reform, however, it must be adapted to modern circumstances in one crucial respect.   Historically, procedural adequacy doctrine focused on cases involving the deliberate manipulation of individual rules.  Today, what is needed is a structural approach to adequacy, one that would consider how the interaction of multiple procedural rules unfairly burdens federal rights.  Such a structural approach to adequacy is consistent with the doctrine’s original purposes and is the most sensible way to apply procedural adequacy under current conditions.  Litigants should accordingly deploy a structural approach to procedural adequacy doctrine and use it to stop states from burying systemic constitutional violations in complicated procedural labyrinths.

August 28, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, August 27, 2016

"Fourteen Years Later: The Capital Punishment System in California"

The title of this post is the title of this new and timely article authored by Robert Sanger and avaiable for download via Bepress.  Here is the abstract:

Fourteen years ago, the Illinois Commission on Capital Punishment issued a Report recommending 85 reforms in the criminal justice system in that state to help minimize the possibility that an innocent person would be executed.  The following year, this author conducted an empirical study, later published in the Santa Clara Law Review, to determine if California’s system was in need of the same reforms.  The study concluded that over ninety-two percent of the same reforms were needed in California.  In addition, the study showed that the California system had additional weaknesses beyond those of Illinois that also could lead to the execution of the innocent.

This article is an effort, fourteen years later, to determine what has transpired in California during the last fourteen years.  It will survey of the major scholarly and judicial work that has been published in the last fourteen years on the death penalty nationally and specifically with regard to California as well as on the progress, if any, to meet the unmet recommendations of the Illinois Commission.  

This article concludes that there has been much additional criticism of the failures of the criminal justice and death penalty systems in the country and specifically in California. Nevertheless, the empirical study demonstrates that no additional Recommendations of the Illinois Commission have been met in California in the last fourteen years.  Illinois, itself, enacted significant reforms to meet at least some of the Illinois recommendations.  Nevertheless, Illinois repealed its death penalty.  California, despite no reforms, has not, as yet. The voters will have that option on November 8, 2016.  By voting “Yes“ on Proposition 62, the California death penalty would be repealed.

August 27, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, August 25, 2016

New York Times magazine takes deep dive into "Where the Death Penalty Still Lives"

In this post earlier this week, I highlighted the new Fair Punishment Project report taking close look at the small number of US counties still actively utilizing the death penalty.  That report,  Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties, has justifiably received a good deal of national and local media coverage.  But the biggest and most impressive discussion of the report and the various issues it raises appears in this week's forthcoming New York Times magazine via this lengthy feature article under this full headline: "Where the Death Penalty Still Lives: As capital punishment declines nationwide, a tiny fraction of the country generates an alarming number of death sentences. What this new geography tells us about justice in America."   Here are a few excerpts of a great read from the pen of Emily Bazelon:

What separates the 16 counties where the death penalty regularly endures from the rest of the country, where it is fading away?  The 16 counties span seven states in the South and the West.  They include major cities, like Los Angeles, Houston, Las Vegas and Phoenix; suburban areas like Orange County, Calif., and San Bernardino, Calif.; and semirural pockets like Mobile County, Ala., and Caddo Parish, La.  Some are dominated by Demo­cratic voters, some are dominated by Republicans and a few are evenly split.  Many of the counties have high numbers of murders, but so do plenty of other places that don’t use the death penalty.

Brandon Garrett, a law professor at the University of Virginia, along with a research team at Harvard Law School called the Fair Punishment Project, has been trying to identify the factors that explain why certain counties still regularly impose capital punishment.  They have been delving into the death-penalty records of the 16 counties and comparing them with those of other jurisdictions and have found three key features that often characterize the 16. “The people who get the death penalty tend to live in places with overaggressive prosecutors and defense lawyers who aren’t up to the task of defending against them — that’s a double whammy,” says Robert J. Smith, who directs the project. “Then in some places there’s a third element: a cultural legacy of racial bias and exclusion. It’s just not true that we execute the people who are the most culpable.”...

Black jurors are relatively absent from death-penalty trials, which can affect their outcomes.  “Research shows the mere presence of blacks on capital juries — on the rare occasions they are seated — can mean the difference between life and death,” Melynda J. Price, a law professor at the University of Kentucky, wrote in a 2009 law review article. But to be seated on a death-penalty case, a prospective juror must say he or she could vote for execution without substantial moral or religious qualms, in keeping with the test set by the Supreme Court.  Since African-Americans oppose capital punishment at a higher rate than whites, fewer of them can serve.

Prosecutors also can take steps to keep them off juries.  In Caddo Parish, La., which is among the 16 counties, prosecutors excluded black jurors at three times the rate of white jurors between 2003 and 2012, according to Reprieve Australia, a legal-assistance group.  “You see all-white or nearly all-white juries at capital murder trials where you’d never expect it given the diversity of the population,” says Smith of the Fair Punishment Project.

Florida and Alabama also diminish the influence of any juror who wants to spare a defendant’s life.  They are the only states that don’t require a unanimous vote for execution. Between 2010 and 2015, there was only one unanimous verdict among 13 death sentences in Jefferson County and Mobile County, both on the list of 16.  Of the 24 death sentences Angela Corey has won, three came from unanimous juries. The jury split 8 to 4 in eight cases, and in three others, the vote was 7 to 5.

Many of the 16 counties where the death penalty is prevalent have a criminal-justice system with a power structure similar to Duval’s.  Whites retain control to a striking degree, despite the presence of sizable numbers of African-Americans or Latinos.  This phenomenon is the most pronounced within the former borders of the Confederacy. “Alabama has 19 appellate judges,” says Bryan Stevenson, founder of the Equal Justice Initiative, which represents clients on death row in the state.  “They are all white.  Fourteen percent of the trial judges are black.  Out of 42 elected prosecutors in the state, one is black.”  Stevenson says that by seeking numerous death sentences, prosecutors in the Deep South “hark back to the history of using the criminal-justice system to maintain racial control.”  Mobile County is the site of the last known lynching in the country, in 1981.  (After a jury deadlocked in the trial of a black man accused of killing a white police officer, two Ku Klux Klan members abducted a black 19-year-old who had nothing to do with the death, cut his throat and hanged his body from a tree.)  Jefferson had the state’s highest total of lynchings between 1877 and 1950.  In Caddo Parish, men have been hanged outside the courthouse, where a monument to the Confederacy still stands on the front lawn.

August 25, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Ohio Supreme Court concludes it violates due process to treat a juve adjudication like adult conviction at later sentencing

As reported in this local press article, headlined "Court: Juvenile crimes can't enhance adult sentences," the Ohio Supreme Court handed down an interesting sentencing opinion today in Ohio v. Hand, No. 2016-Ohio-5504 (Ohio Aug. 25, 2016) (available here).  Here is the press summary of the ruling:

Prior juvenile convictions cannot be used to escalate the severity of charges or increase the prison sentences of adults, a divided Ohio Supreme Court ruled today.

In a 4-3 decision, the justices declared that treating cases from juvenile court as prior convictions for adult-sentencing purposes is unconstitutional, violating the due-process clauses of the Ohio and U.S. constitutions, and is “fundamentally unfair.”

Justice Judith Ann Lanzinger, writing for the majority, said that juvenile court proceedings, which are civil — not criminal — matters, are designed to protect the development of those under age 18 while they are rehabilitated.

Adult felony sentences, however, are designed to protect the public and punish offenders, she wrote. “In summary, juvenile adjudication differs from criminal sentencing — one is civil and rehabilitative, the other is criminal and punitive,” Lanzinger wrote.

The full opinion is available at this link. And as this final conclusion paragraph highlights, there are lots of interesting elements of the decision that all sentencing fans will want to check out:

Treating a juvenile adjudication as an adult conviction to enhance a sentence for a later crime is inconsistent with Ohio’s system for juveniles, which is predicated on the fact that children are not as culpable for their acts as adults and should be rehabilitated rather than punished.  It is widely recognized that juveniles are more vulnerable to outside pressures, including the pressure to admit to an offense.  Under Apprendi, using a prior conviction to enhance a sentence does not violate the constitutional right to due process, because the prior process involved the right to a jury trial.  Juveniles, however, are not afforded the right to a jury trial.  Quite simply, a juvenile adjudication is not a conviction of a crime and should not be treated as one.

August 25, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

"More Bang for Your Buck: How to Improve the Incentive Structure for Indigent Defense Counsel"

The title of this post is the title of this notable new empirical paper authored by Benjamin Schwall that I just noticed on SSRN. Here is the abstract:

The payment system and related incentive structure can have a major effect on an attorney’s behavior and this impact is somewhat predictable.  Using data from the South Carolina Commission on Indigent Defense, we provide some evidence of how paying attorneys a flat fee can impact their behavior compared to paying them an hour hourly rate.  Unsurprising, the effect is that attorneys put forth less effort when being paid a flat fee.  It is important to recognize the trade-offs between controlling costs and providing effective representation that any payment system possesses. Using economic theory and a simple model, we discuss the various benefits and drawbacks of the different payment systems that are common for indigent defense attorneys.  Finally, we discuss how the different payment systems can be improved to better align the attorney’s interests with the State’s interests.

August 25, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Massachusetts judge's probation sentence for sexual assault gives east coast its own Brock Turner

This new New York Times article, headlined "Judge’s Sentencing in Massachusetts Sexual Assault Case Reignites Debate on Privilege," reports on the latest seemingly too-lenient sentence for sexual assault stirring up controversy in the wake of a summer spent discussing the now-infamous Brock Turner case out of California.  Here are the details:

The two women were asleep on a bed after drinking at a party when they were sexually assaulted.  A high school athlete pleaded guilty to indecent assault and battery on a person over 14 in the case, according to court documents. But when a Massachusetts judge sentenced the defendant, David Becker, to two years’ probation last week, he reignited a debate on white privilege, leniency and judicial discretion.

The case is being compared to a rape trial in which a champion student swimmer from Stanford University, Brock Turner, received six months in jail for raping an unconscious woman behind a Dumpster at a party on campus.  The judge in that case, Aaron Persky of the Santa Clara County Superior Court, was the subject of a recall effort in June.

Prosecutors in the Massachusetts case recommended a two-year sentence for Mr. Becker, 18, a former student at East Longmeadow High School, a spokesman for the Hampden County district attorney’s office, James Leydon, said in an email on Wednesday.  Mr. Becker also would have had to register as a sexual offender.

But on Aug. 15, Judge Thomas Estes of Palmer District Court not only ignored the prosecutors’ recommendation, but he also allowed Mr. Becker to serve his probation in Ohio, where the defendant planned to attend college, court documents showed. Judge Estes said Mr. Becker must abstain from drugs and alcohol, submit to an evaluation for sex offender treatment and stay away from the victims, both of whom were 18, they showed.

According to The Republican, Mr. Becker’s lawyer, Thomas Rooke, said, “The goal of this sentence was not to impede this individual from graduating high school and to go onto the next step of his life, which is a college experience.”

“He can now look forward to a productive life without being burdened with the stigma of having to register as a sex offender,” Mr. Rooke said, according to The Republican. Mr. Rooke could not be reached by telephone on Wednesday.

After Mr. Becker’s sentence was made public, a petition went up online seeking names to present to state lawmakers to remove the judge. It had garnered more than 10,000 signatures by Wednesday afternoon. “This is yet another instance of a white athlete receiving a slap on the wrist for a violent sexual crime, following on the heels of the Brock Turner case in California,” the petition said.

Mr. Becker was originally charged with two counts of rape and one count of indecent assault, according to the documents.  According to police reports, Mr. Becker told investigators that when one of the women “didn’t protest,” he assumed it was “O.K.,” but he denied having any physical contact with the other woman, according to the documents.

In a text message to one of the victims the next day, Mr. Becker apologized for the assault, the court documents said. The victim responded with a text telling him, “Don’t even worry about it,” but later told the police that she had said that because “she did not know what else to say,” according to a police report presented in court. The police declined to comment on Wednesday.

The sexual assault case is one of several recent episodes that activists say show a troubling trend toward lenient punishment for young white perpetrators.  In one case in Colorado, a former University of Colorado student, Austin Wilkerson, 22, who was convicted of raping a female student in 2014, was sentenced to two years on work or school release and 20 years to life on probation.  He also must register as a sex offender.  Prosecutors said the victim had consumed too much alcohol at a party, The Daily Camera reported. “No prison time for sexual assault sends a terrible message,” the Colorado attorney general, Cynthia Coffman, said on Twitter after the decision....

Colby Bruno, a senior legal counsel with the Victim Rights Law Center in Massachusetts, said that in the 12 years she had been with the center, she has seen her share of cases involving elements of racial privilege.  Even more so, she has observed a bias in favor of male suspects in court cases involving violence against women, she said in a telephone interview, adding, “This is basically business as usual for the courts.”

“There is an element in each of the cases of entitlement on the part of the perpetrators. It is something I have seen across the board in the cases that I have represented,” she said.  “Giving perpetrators a second chance is not a good idea,” Ms. Bruno added. “This is a felony, not a mistake, and it has to be treated like that.”

August 25, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, August 24, 2016

Interesting exploration of possible harms of "Gateway Crimes"

Murat Mungan has this interesting new paper up at SSRN titled simply Gateway Crimes."  Here is the abstract:

Many who argue against the legalization of marijuana suggest that while its consumption may not be very harmful, marijuana indirectly causes significant social harm by acting as a “gateway drug,” a drug whose consumption facilitates the use of other, more harmful, drugs.  This article presents a theory of “gateway crimes”, which, perhaps counterintuitively, implies that there are social gains to decriminalizing offenses that cause minor harms, including marijuana-related offenses.

A typical gateway crime is an act which is punished lightly, but, because it is designated as a crime, being convicted for committing it leads one to be severely stigmatized. People who are stigmatized have less to lose by committing more serious crimes, and, therefore, the criminalization of these acts increases recidivism.  Thus, punishing “gateway crimes” may generate greater costs than benefits, and this possibility must be kept in mind when discussing potential criminal justice reforms. This “gateway effect” does not require that, but, is strongest when, people underestimate, or ignore, either the likelihood or magnitude of the consequences associated with being convicted for a minor crime.  Therefore —  if potential offenders in fact underestimate expected conviction costs —  this theory not only implies previously unidentified benefits associated with decriminalizing acts that cause questionable or minor harms, but also benefits associated with making the costs associated with convictions more transparent.

August 24, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

"Defining Violence: Reducing Incarceration by Rethinking America's Approach to Violence"

Image-fullThe title of this post is the title of this important and timely new report by the Justice Policy Institute.  Here is an extended passage from this effective JPI report's effective introduction:

Statutes abstractly categorize behavior as violent or nonviolent. How might these categorizations, along with the workings of the justice system, combine to limit reform efforts designed to reduce our reliance on incarceration? Does statistical reporting obscure critical facts that change agents, policymakers, and the public need to consider when designing policies to significantly reduce the use of incarceration?

In Defining violence: reducing incarceration by rethinking America’s approach to violence, the Justice Policy Institute (JPI) explores how something is defined as a violent or nonviolent crime, how that classification affects how the justice system treats a person, and how all that relates to the use of incarceration.  The report summarizes the relationship of offenses to the use of incarceration and how that varies by:

  • How violent offenses are categorized from place to place: An act may be defined as a violent crime in one place and as a nonviolent crime somewhere else.  The law in a particular jurisdiction may define something as a nonviolent crime, but a corrections department may define the same behavior differently.  For example, although burglary rarely involves person-to-person behavior, it is defined as a violent crime in some places and can lead to a long prison sentence;

  • How context matters in the way a violent or nonviolent offense is treated by the justice system: Sometimes a behavior that would not normally be a defined as a “crime of violence” or result in a long prison term can mean a much longer term of imprisonment when a gun is involved; and

  • The disconnection between the evidence of what works to make us safer and our current policies: People convicted of some of the most serious offenses —  such as homicide or sex offenses —  can have the lowest recidivism rates, but still end up serving long prison terms.

These three factors overlap with each other in a way that brings into sharp relief the fact that the nation will fail to make meaningful reductions in the use of incarceration unless we revamp our approach to violent crime and how the justice system treats people convicted of a violent crime.  How a behavior is treated by the courts can occur in isolation from the research that demonstrates someone’s ability to change, and brings competing values around what is proportionate and just response to behavior.

This is a complicated political and systems reform issue.  When politicians support bills that focus solely on nonviolent crimes, they can point to polling and voter-enacted ballot initiatives that show that the public supports their agenda. In some places, policymakers have vocally rejected justice reform bills and ballot initiatives if there was a hint that someone convicted of a violent crime might benefit from the change.

When someone has been the victim of a violent crime, they may want to see that person locked up. Scholars have noted that if the U.S. wants to treat the root causes of violence in the communities most affected by serious crime, it will require a significant investment of public resources —  more than what we could currently “reinvest” from downsizing and closing prisons and jail.

To help unpack some of the complicated issues at play, the Justice Policy Institute (JPI) analyzes how behaviors are categorized under sometimes-arbitrary offense categories, explores the larger context that exists when something is classified as a violent or nonviolent offense, and shows the consequences for the justice system and the use of incarceration.  This report also looks at how the debate over justice approaches to violent crime, nonviolent crime, and incarceration is playing out in legislatures and how justice reform proposals are debated.

August 24, 2016 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, August 23, 2016

New Fair Punishment Project report takes close look at small number of US counties still actively utilizing the death penalty

FairJustIn this post earlier this year, I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).   I received an email this morning highlighting a new big project and report from the the FPP.  Here are excerpts from the email:

Today [FPP] released a new report offering an in-depth look at how the death penalty is operating in the small handful of counties across the country that are still using it.  Of the 3,143 county or county equivalents in the United States, only 16—or one half of one percent—imposed five or more death sentences between 2010 and 2015.  Part I of the report, titled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties examined 10 years of court opinions and records from eight of these 16 “outlier counties,” including Caddo Parish (LA), Clark (NV), Duval (FL), Harris (TX), Maricopa (AZ), Mobile (AL), Kern (CA) and Riverside (CA). The report also analyzed all of the new death sentences handed down in these counties since 2010....

The report notes that these “outlier counties” are plagued by persistent problems of overzealous prosecutors, ineffective defense lawyers, and racial bias. Researchers found that the impact of these systemic problems included the conviction of innocent people, and the excessively harsh punishment of people with significant impairments.  The report notes that many of the defendants appear to have one or more impairments that are on par with, or worse than, those that the U.S. Supreme Court has said should categorically exempt individuals from execution due to lessened culpability.  The Court previously found that individuals with intellectual disabilities (Atkins v. Virginia, 2002) and juveniles under the age of 18 (Roper v. Simmons, 2005) should not be subject to the death penalty under the Eighth Amendment.

In conducting its analysis, we reviewed more than 200 direct appeals opinions handed down between 2006 and 2015 in these eight counties. We found:

  • Sixty percent of cases involved defendants with significant mental impairments or other forms of mitigation.
  • Eighteen percent of cases involved a defendant who was under the age of 21 at the time of the offense. In Riverside County, 16 percent of the defendants were age 18 at the time of the offense.
  • Forty-four percent of cases involved a defendant who had an intellectual disability, brain damage, or severe mental illness. In four of the counties, half or more of the defendants had mental impairments: Maricopa (62 percent), Mobile (60 percent), Caddo Parish (57 percent), and Kern (50 percent).
  • Approximately one in seven cases involved a finding of prosecutorial misconduct. Maricopa and Clark counties had misconduct in 21 percent and 47 percent of cases respectively.
  • Bad lawyering was a persistent problem across all of the counties. In most of the counties, the average mitigation presentation at the penalty phase of the trial, in which the defense lawyer is supposed to present all of the evidence showing that the defendant’s life should be spared -- including testimony from mental health and other experts, lasted approximately one day. While this is just one data point for determining the quality of legal representation, this finding reveals appalling inadequacies. In Duval County, Florida, the entire penalty phase of the trial and the jury verdict often came in the same day.
  • A relatively small group of defense lawyers represented a substantial number of the individuals who ended up on death row. In Kern County, one lawyer represented half of the individuals who ended up on death row between 2010 and 2015.

Additional findings:

  • Five of the eight counties had at least one person exonerated from death row since 1976. Harris County has had three death row exonerations, and Maricopa has had five.
  • Out of all of the death sentences obtained in these counties between 2010 and 2015, 41 percent were given to African-American defendants, and 69 percent were given to people of color.  In Duval, 87 percent of defendants were Black in this period. In Harris, 100 percent of the defendants who were newly sentenced to death since November 2004 have been people of color.
  • The race of the victim is also a significant factor in who is sentenced to death in many of these counties. In Mobile County, 67 percent of the Black defendants, and 88% of all defendants, who were sentenced to death were convicted of killing white victims. In Clark County, 71 percent of all of the victims were white in cases resulting in a death sentence. The report noted just three white defendants sentenced to death for killing Black victims between 2010 and 2015. One of those cases was from Riverside, and in that case the defendant was also convicted of killing two additional white victims. The two other cases were from Duval.
  • Five of the 16 “outlier counties” are from Florida and Alabama, the only two states that currently allow non-unanimous jury verdicts.  In Duval, 88 percent of the decisions in the review period were non-unanimous, and in Mobile the figure was 80 percent. 

Part II of this report, which will be released in September, will look at the remaining eight “outlier counties,” including: Dallas (TX), Jefferson (AL), Pinellas (FL), Miami-Dade (FL), Hillsborough (FL), Los Angeles (CA), San Bernardino (CA), and Orange (CA).

August 23, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Monday, August 22, 2016

"Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair"

The title of this post is the headline of this recent Medium commentary authored by Akiva Freidlin and Emi Young.  Here are excerpts:

As recent graduates of Stanford Law School who work on behalf of low-income people affected by our criminal justice system, we have been closely attuned to the Brock Turner sexual assault case. We recognize the urgency of feminist-led reforms to rape law, and of efforts to address and prevent sexual violence, but the misguided campaign to recall Judge Aaron Persky advances neither goal. Instead, the recall proponents have used misleading arguments to inflame the perception that Judge Persky imposes unfair sentences depending on a defendant’s race and class. These distortions misdirect long-overdue public outrage over the state of America’s criminal justice system to support Persky’s recall, while threatening to make the system less fair for indigent defendants and people of color.... In July, the recall campaign began drawing misleading comparisons between Turner and a Latino man named Raul Ramirez, whose case was overseen by Judge Persky. The campaign claims that Ramirez, a low-income person of color, received a three-year sentence for “very similar crimes,” proving that Judge Persky has “shown bias.”  But there are two crucial legal differences between the cases, which render the comparison meaningless....

Ramirez received a three-year sentence as part of a negotiated plea deal between his attorney and the prosecutor, so Judge Persky had no discretion to give him a lesser sentence.... [And] Ramirez and Turner were charged with crimes that are treated differently under the law. Ramirez received a prison sentence because the District Attorney charged him under a statute that absolutely requires it.... These realities explain the differences between Brock Turner’s sentence of probation and Raul Ramirez’s three-year prison term  —  not the recall campaign’s unsupported claims of judicial bias....

Now the campaign has begun to publicize a misleading barrage of claims about another plea bargain, using rhetoric that undermines hard-won reforms to immigration policy. In this case, a defendant named Ming Hsuan Chiang pleaded guilty to a domestic violence charge in exchange for a sentence that critics deride as being too lenient.  The facts in this case, and the injuries to the victim, are upsetting  —  but once again, as in the Ramirez case, Judge Persky approved a sentence recommended by the District Attorney’s office, in fulfillment of the prosecution’s agreement with Chiang’s attorney.  Nevertheless, the campaign claims that the sentence somehow provides evidence that Persky has “shown bias.” 

One of the recall campaign’s main proponents  —  Professor Michelle Dauber, who teaches at our law school   — has also pointed to the plea bargain’s consideration of Chiang’s immigration status as a sign that Judge Persky is somehow unacceptable as a judge....  This insinuation turns law and policy on its head.  For non-citizens, being convicted of even a relatively minor crime may trigger federal immigration penalties such as mandatory detention, deportation, and permanent separation from close family . Addressing harmful and unjust “crimmigration” penalties has been a top priority of immigrants rights advocates, especially here in California, where one out of four residents is foreign-born....

Our criminal system is deeply unjust, but attributing these problems to Judge Persky is a mistake — and the effort to recall him only harms less privileged defendants.  The false personal accusations against Judge Persky distract from real understanding of structural inequalities.  In Brock Turner’s case, the probation department’s recommendation against prison weighed specific legal factors that, while putatively neutral, often correspond to race and class.  For instance, consideration of a defendant’s past criminal record tends to benefit middle-class whites like Turner, who have never been subjected to the dragnet policing and “assembly-line justice” that leave young men of color with sentence-aggravating prior convictions.  Similarly, for Turner, the loss of valuable educational opportunities was seen as mitigating the need for greater punishment, whereas for less privileged defendants, institutional barriers  —  like disciplinary policies that have created a “school-to-prison pipeline”  —  impede access to those opportunities in the first place. The time and money being spent to remove Persky from the bench will not address these dynamics or help untangle the web of policies that perpetuate inequality along racial and class lines.

Here in California, voters have finally begun to remedy the unintended and disparate effects of the 1993 “Three Strikes” ballot initiative and other mandatory sentencing laws, by permitting the discretionary re-sentencing of people convicted under these schemes.  By sending the message that unpopular but lawful decisions may lead to a recall, the campaign threatens the sole mechanism for individualized consideration of mitigating circumstances.

This will only make it harder for low-income defendants and those who advocate for them.... Those effects are not merely speculative.  As shown in ten empirical studies analyzed by the Brennan Center for Justice, judges impose harsher sentences when pressured by elections, and some studies find that these effects are concentrated on defendants of color.  Holding a recall election out of frustration with Turner’s lawful sentence will only exacerbate these problems.  As a prominent Santa Clara County judge has explained, a recall will “have trial judges looking over their shoulders, testing the winds before rendering their decisions.”...

Even in anger, the public must take a hard look at the rationale and likely effect of recalling Judge Persky.  By stoking public anger with misleading claims, the recall campaign encourages a short-sighted response without accounting for the actual sources of structural injustice, or the consequences to those already burdened by inequality.

Some prior related posts:

August 22, 2016 in Celebrity sentencings, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Would the "the first liberal Supreme Court in a generation" really reshape the criminal justice system in the United States?

The question in the title of this post is prompted by this notable new Vox article headlined "How the first liberal Supreme Court in a generation could reshape America." Interestingly (and appropriately?), the article talks a lot and at length about sentencing issues, and thus it is this week's first must-read. And here are excerpts:

Odds are that very soon, the Supreme Court will become something it hasn’t been in nearly 50 years: made up of a majority of Democratic-appointed justices.

Ever since Abe Fortas’s resignation in 1969, the Court has either been split down the middle or, more often, made up primarily of Republican appointees. Some of those Republican appointees nonetheless turned out to be liberals, but even taking that into account, the Court hasn’t been majority liberal since 1971, when William Rehnquist and Lewis Powell joined....

The unfilled vacancy of Antonin Scalia’s seat combined with a Hillary Clinton victory in November could set the Court on a new course. Merrick Garland, nominated by Barack Obama in March, has yet to face a vote. But though Senate Republicans have denied they’ll confirm him in the lame-duck session this winter, should Hillary Clinton win they might be tempted to confirm him lest she name a more liberal nominee. Either way, the result is a moderate to liberal justice in Scalia’s seat, moving the Court appreciably to the left.

Clinton also stands a good chance of replacing the moderate-to-conservative Anthony Kennedy (who recently turned 80) with a reliable liberal, and keeping Ruth Bader Ginsburg (83 and a two-time cancer survivor) and Stephen Breyer’s (78) seats in liberal hands. The result would be a solid 6-3 liberal majority of a kind not seen in many decades....

A liberal Court could end long-term solitary confinement. It could mandate better prison conditions in general, making it more costly to maintain mass incarceration. It could conceivably end the death penalty. It could uphold tough state campaign finance rules and start to move away from Citizens United. It could start to develop a robust right to vote and limit gerrymandering. It could strengthen abortion rights, moving toward viewing abortion rights as a matter of equal protection for women....

Let’s start with perhaps the biggest thing that could happen under a liberal Court, perhaps even a Court where another conservative replaces Scalia: the end of long-term solitary confinement. In 2015, Anthony Kennedy filed a concurring opinion in Davis v. Ayala, a death penalty case in which the Court (joined by Kennedy) sided against the defendant. Nevertheless, Kennedy used his concurrence to unleash a bracing jeremiad against the evils of solitary confinement, in which the defendant had been held for most of his more than 25 years in prison....

The implication was clear: Kennedy wanted advocates to bring a case challenging the constitutionality of long-term solitary confinement on the grounds that it constitutes cruel and unusual punishment under the Eighth Amendment. He basically dared them to, and suggested that if such a case reached the Court, he’d be inclined to limit the practice. With four reliable liberals already on the Court and likely to join him, it’s quite likely that such a case would end with solitary confinement sharply limited....

Solitary confinement is perhaps the most shockingly cruel condition of imprisonment in the United States, but the sheer scale of mass incarceration is also an issue in need of addressing. And because federal courts have the ability to affect policy at both the federal and state level, they can have considerable influence on the incarceration rate going forward.... "The new focus of prison conditions, which could be a real game changer in my view, is the intersection of overcrowding with mental and physical health burdens. The real game changer in terms of the current prison population is how disease-burdened it is," [Professor Jonathan] Simon says. "That could be pretty far-reaching because states have to contemplate the consequence of incarcerating so many aging prisoners."...

One way in which the courts could be more receptive to directly challenging sentences, she says, is by starting to take "collateral consequences" into account. That’s the technical term for the myriad ways that criminal convictions, and in particular sex crime convictions, can hamper defendants’ lives in the long term. That includes restrictions on where they can live after they’re released from prison, bans on government employment and benefits like public housing, inclusion on sex offender registries, bans on gun purchases and voting, and so forth....

Almost as explosive as Kennedy's 2015 concurrence was a dissent filed by Stephen Breyer and joined by Ruth Bader Ginsburg that same year. The case, Glossip v. Gross, resulted in a 5-4 ruling affirming that the particular drug cocktail Oklahoma currently uses in executions doesn't violate the Eighth Amendment. One dissent, by Sonia Sotomayor and joined by the Court's other three liberals, narrowly argued against the specific drugs. Breyer's dissent took aim at capital punishment as a whole....

It’s telling that neither Sotomayor nor Elena Kagan, the two other liberals on the Court, joined Breyer’s opinion. And it’s hard to imagine Merrick Garland, who was one of the prosecutors who successfully sought to see Timothy McVeigh executed, declaring his own past actions categorically unconstitutional. But if Garland’s nomination fails and Clinton picks a less tough-on-crime nominee for Scalia’s seat, or if Kennedy leaves the Court during her presidency, it’s conceivable there would exist five votes for outright abolition of the death penalty.

"I would not be surprised to see Sotomayor and Kagan supportive of [abolishing the death penalty]," Simon says. "Kennedy is a harder call. The reason I'm somewhat optimistic about including Kennedy goes back to his interest in dignity. The strongest of the opinions in Furman" — the 1972 case that briefly abolished capital punishment — "was William Brennan's, and Brennan based it most directly on human dignity. He argued the Eighth Amendment bans any punishment you can't carry out without respecting the dignity of those being punished." Kennedy leaned heavily on the importance of dignity in Brown v. Plata, the California prison overcrowding case....

One other death penalty–related case Simon thinks the Court could amend or overturn, which could have widespread implication outside this specific issue area, is McCleskey v. Kemp, a 1987 case in which the Court ruled 5-4 that a death sentence for a black defendant could not be overturned due to the state of Georgia's hugely disproportionate imposition of capital punishment on African Americans. The effect of that was to foreclose challenges to the criminal justice system premised on its discriminatory effect — the Court required that plaintiffs show that discrimination was intended, not merely that the system was in effect discriminating against African Americans.

"It's been terrible for equal protection law generally. Criminal justice is run through with very disproportionate racial practices that are very difficult to prove as discrimination," Simon says. "Overturning McCleskey, and a companion case a few years later, could be a really important change agent both in unleashing the potential for trial court challenges to racially disproportionate criminal justice practices of all sorts, and perhaps ending the death penalty in those states where it seems most firmly rooted, like Texas and Florida."

August 22, 2016 in Campaign 2016 and sentencing issues, Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, August 21, 2016

"Plea Bargaining and Price Theory"

The title of this post is the title of this interesting looking new paper authored by Russell Covey now available via SSRN.  Here is the abstract:

Like other markets, the plea bargaining market uses a pricing mechanism to coordinate market functions and to communicate critical information to participants, information that permits rational decisionmaking in the face of uncertainty.  Because plea bargaining play such a prominent role in the administration of criminal justice, and because the pricing mechanisms inherent in plea bargaining can — like pricing mechanisms generally — both explain past conduct by market participants and predict future conduct, close scrutiny of the pricing mechanisms at work in plea bargaining is amply justified.

This Article explores several features of the plea bargaining system in light of economic insights borrowed from basic price theory.  That analysis suggests several structural flaws of the plea market that could, in theory, be amenable to reform efforts.  Those flaws include an oversupply of penal leniency, overreliance on wholesale pricing mechanisms, and a devaluation of factual innocence from procedural time-constraints on the effective use of exculpatory evidence.

August 21, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, August 19, 2016

US Sentencing Commission finalizes its priorities for the guideline amendment cycle ending May 1, 2017

This new Federal Register notice from the US Sentencing Commission reports on the results of the USSC's meeting yesterday in which the Commission "identified its policy priorities for the upcoming amendment cycle."  Here are what I consider to be highlights from the fourteen listed priorities:

[T]he Commission has identified the following priorities:

(1) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c), and to develop appropriate guideline amendments in response to any related legislation.

(2) Continuation of its multi-year examination of the overall structure of the guidelines post-Booker, possibly including recommendations to Congress on any statutory changes and development of any guideline amendments that may be appropriate. As part of this examination, the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.

(3) Continuation of its study of approaches to encourage the use of alternatives to incarceration.

(4) Continuation of its multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction (e.g., “crime of violence,” “aggravated felony,” “violent felony,” “drug trafficking offense,” and “felony drug offense”) and the impact of such definitions on the relevant statutory and guideline provisions (e.g., career offender, illegal reentry, and armed career criminal), possibly including recommendations to Congress on any statutory changes that may be appropriate and development of guideline amendments that may be appropriate.

(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study....

(9) Study of offenses involving MDMA/Ecstasy, synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone), and consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study.

(10) Possible consideration of whether the weapon enhancement in §2D1.1(b)(1) should be amended to conform to the “safety valve” provision at 18 U.S.C. § 3553(f) and §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases)....

(14) Consideration of any miscellaneous guideline application issues coming to the Commission’s attention from case law and other sources, including possible consideration of whether a defendant’s denial of relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of §3E1.1.

August 19, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, August 18, 2016

Poll suggests Californians will vote in November 2016 to mend rather than end the death penalty in their state

This new press release from the Institute of Governmental Studies at UC Berkeley, which is titled "IGS Poll Finds Support for Retaining Death Penalty," suggests that California voters have some strong preferences regarding competing death penalty ballot initiatives.  Here are the interesting details via the main text of the press release:

California voters oppose an effort to abolish the death penalty and strongly support a competing measure that would streamline procedures in capital cases, according to a new poll released today by the Institute of Governmental Studies at the University of California, Berkeley.

Respondents opposed the abolition measure 55.1 percent to 44.9 percent, while three out of four respondents supported the streamlining proposition, the survey found. Since the two measures conflict, if both should pass, the measure receiving more votes would take effect.

The poll used online English-language questionnaires to survey respondents from June 29 to July 18. All respondents were registered California voters, and the responses were then weighted to reflect the statewide distribution of the California population by gender, race/ethnicity, education and age. The sample size for the questions on the two death penalty initiatives was 1,506 respondents for one question and 1,512 for the other.

A stark partisan difference emerged on Proposition 62, which would abolish capital punishment and replace it with a sentence of life without the possibility of parole. Democrats supported the measure, 55.1 percent to 44.9 percent. Republicans overwhelmingly opposed it, 70.2 percent to 29.8 percent. Independents were also opposed, though by only 60.6 percent to 39.4 percent. By contrast, there was support across partisan lines for Proposition 66, which would streamline procedures in capital cases to speed up the resolution of those cases. Even among Democrats there was strong support (69.7 percent) for the measure, and support was even higher among independents (81.1 percent) and Republicans (85 percent).

A majority (60 percent) of African-Americans favored abolishing the death penalty, but among all other ethnic groups, most respondents opposed that proposal. Support for the death penalty was stronger among older people.

Interestingly, religious differences were reflected in views about abolishing the death penalty, but mostly that difference was related to whether the respondent was or was not religious, rather than to differences among various religious denominations. Among all religious groups there was majority opposition to eliminating the death penalty; only among the self-identified atheists and agnostics did most voters support abolition of capital punishment.

Prior related posts:

August 18, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Empirical SCOTUS highlights how sentencing cases of OT 15 already "have the greatest downstream effects" in lower courts

I just saw this fascinating new Empirical SCOTUS post by Adam Feldman titled "Five SCOTUS Decisions Making Waves in the Lower Courts." I was not at all surprised that three of the five cases making the list are sentencing cases (and the other two deal with criminal procedure matters), and here are snippets from the post providing the highlights:

[Supreme Court] rulings in many cases each Term go under the radar [because] they deal with less politically salient issues. Some of these cases, however, have the greatest downstream effects.

This post looks at five “sleeper cases” from this past Term that have made their major impact through the lower courts. The immediate significance of these decisions is in how they change or clarify rules and laws and consequently the trajectory of many lower court decisions. They are especially impactful in criminal cases as they tend to arise when dealing with rights of those accused or convicted of crimes.

The post ranks the cases based on the relative number of times they have been cited by a combination of federal and state lower courts (even though these decisions were made across several months of the Term, the number of times they were cited makes it unlikely that the variation in decision timing has a substantial effect on this list of cases).

5) Mathis v. United States, decided June 23, 2016 (75 lower court citations)...

4) Ross v. Blake, decided June 6, 2016 (107 lower court citations)...

3) Mullenix v. Luna (per curiam), decided November 9, 2015 (213 lower court citations)...

2) Montgomery v. Louisiana, decided January 25, 2016 (373 lower court citations) ....

1) Welch v. United States, decided April 18, 2016 (765 lower court citations) ...

My colleagues and students are certainly tired of hearing me claim that sentencing issues are often the most important public policy issues of this generation and that SCOTUS sentencing rulings are often the most consequential of all cases. Needless to say, these notable empirics is not going to reduce my tendency to aggrandize the issues and cases that are my own professional obsession.

August 18, 2016 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

Wednesday, August 17, 2016

Federal district judge assails prosecutors for not seeking more prison time for cooperators in government corruption cases

This local article from New Jersey, headlined "Judge blasts U.S. attorney during sentencing of Guttenberg contractor in theft," reports on a federal judge expressing concern that federal prosecutors are being too soft in sentencing recommendations in a notable white-collar setting.  Here are the details:

A federal judge repeatedly criticized the U.S. Attorney's Office in Newark during a hearing Wednesday, scolding prosecutors for seeking light sentences -- sometimes with no prison time -- for people who plead guilty to corruption and related offenses.

Before sentencing a Guttenberg contractor who conspired with Union City officials to steal federal housing funds, U.S. District Judge William H. Walls spent several minutes upbraiding the U.S. Attorney's Office for a "ridiculous" pattern of bringing corruption cases and then seeking lenient sentences for defendants who plead guilty.

"That is so ridiculous it makes no sense in the context of true law enforcement," Walls said from the bench. "This is sheer legal nonsense." "If you swindle the government, regardless of your status, you should go to jail," he added.

Despite his protests, Walls agreed in the end with prosecutors, who had filed motions to avoid mandatory sentencing guidelines, and sentenced the defendant in Wednesday's case to three years of probation instead of prison.

Walls, a senior judge appointed by President Bill Clinton, is also presiding over the corruption trial of U.S. Sen. Robert Menendez.  Attorneys for Menendez, D-Paramus, deny the charges and have sought to quash the indictment. Justice Department officials in Washington are handling that prosecution, not the U.S. Attorney's Office in Newark.

U.S. Attorney Paul Fishman has made corruption cases a hallmark of his tenure and his office is prosecuting Bill Baroni and Bridget Anne Kelly, two former associates of Governor Christie's who have been implicated in the George Washington Bridge lane-closure case.  Christie, who was U.S. attorney before Fishman, also made corruption cases a highlight of his term.

Since President Obama appointed him in 2009, Fishman has secured convictions for several top officials including the former chairman of the Bergen County Democratic Organization, Joseph Ferriero; a former Trenton mayor, Tony Mack; and the former chairman of the Port Authority of New York and New Jersey, David Samson, who is also a former New Jersey attorney general.

A spokesman for Fishman, in response to Walls's comments, noted that defendants who cooperate with prosecutors are entitled to "some consideration" at sentencing.  “It is firmly rooted in our system of justice that a defendant who admits his own guilt and cooperates in the government's investigation or prosecution of criminal conduct is entitled to some consideration at the time of sentencing," said Fishman spokesman Matthew Reilly.  "It is the prosecution's responsibility to bring that information to the attention of the court, and the court has the discretion to determine how much weight to give it.”

Darren Gelber, a lawyer at the Wilentz, Goldman and Spitzer firm and a former president of the Association of Criminal Defense Lawyers of New Jersey, said "Judge Walls has a reputation of being a tough sentencer."

"I'm sure he like others has become increasingly frustrated with the perception that corruption is all too prevalent in our state," said Gelber, who was not involved in Wednesday's case.

The U.S. Attorney's Office charged that Leovaldo Fundora, the owner of Falcon Remodeling of Guttenberg, conspired with two public officials in Union City to steal federal housing funds. The two Union City officials instructed Fundora to collude with two other businesses, which are unnamed in court papers.... Prosecutors estimated losses from the scheme between $120,000 and $200,000.

"I deeply regret what I have done," Fundora told the court as his wife and daughter sat behind him. "I know it's going to take a long time to get my reputation back, but I will try my best."  His attorney, Raymond Flood, said Fundora was a Cuban immigrant who had been working since he was 12 years old. "He's been a criminal for four years," Walls noted, "four years that he swindled the government."

Fundora pleaded guilty in 2013 and his theft conviction carried a maximum sentence of 10 years and a $250,000 fine.  At Fundora's sentencing hearing Wednesday, prosecutors recommended a much lighter sentence and Walls, despite his critical comments, agreed.  The U.S. Attorney's Office filed what is known as a "5K1.1" motion, asking the judge to depart from the federal sentencing guidelines to impose a lighter punishment on Fundora.  Walls sentenced Fundora to three years of probation, ordered him to pay $73,753 in restitution, and imposed a $2,000 fine.

"This is absolutely ridiculous and I will not do it again," Walls told the assistant U.S. attorney handling the case, Barbara Llanes.  Walls said businesses that win contracts from government agencies should hold themselves to a higher standard.  He suggested the U.S. Attorney's Office was more interested in getting favorable conviction statistics than pursuing tough punishments.  "The society is being swindled, and your office seems to care about notching wins," the judge told Llanes.

Responding to Walls's questions, Llanes noted that the two Union City public officials -- Johnny Garces and Washington Borgono, who both pleaded guilty -- have not been sentenced.  Prosecutors would not file "5K1.1" motions for them, she added.

August 17, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

Split Pennsylvania Supreme Court limits reach of state's lifetime sex offender registry requirement

As reported in this local article, a "ruling issued by a sharply-divided Pennsylvania Supreme Court could greatly alter the registration requirements imposed on some types of convicted sex offenders." Here is more about the ruling and its likely impact:

The decision by the court's majority states that offenders who commit some kinds of sex crimes, such as possessing child pornography, cannot be made to register with state police for life unless they commit at least one more sex crime after their initial convictions. In other words, they have to become recidivists to qualify for the lifetime registration. State police have been requiring such first-time offenders to register for life if they have multiple sex crime convictions stemming from just one criminal incident.

Dauphin County District Attorney Ed Marsico said Tuesday that the high court's decision likely will have an impact on plea negotiations in certain sex-crime cases. The difference in registration requirements - some offenses carry registration terms as low as 10 years - can prompt a defendant to plead guilty to a lesser sex crime to avoid the lifetime registration. "The biggest impact will be with plea negotiations," Marsico said. "These registration requirements are often at issue."

The dispute before the Supreme Court hinged on the interpretation of the wording of a state law that requires lifetime registration for some sex offenders who receive "two or more convictions." A Supreme Court majority consisting of Chief Justice Thomas G. Saylor and Justices Kevin M. Dougherty, Max Baer and Christine Donohue concluded the wording means sex offenders in some cases must be convicted of such crimes for two separate incidents to trigger the lifetime registration mandate. Justices Debra McClosky Todd and David N. Wecht dissented.

The majority decision means sex offenders convicted of "Tier 1" crimes including kidnapping of minors, child luring, institutional sexual assault, indecent assault, prostitution involving minors, possessing child porn and unlawful contact with a minor won't be required to register for life on their first offense, no matter how many charges their first convictions entail. They will still have to register with police for 10 years.

The Supreme Court majority opinion written by Dougherty dealt with the case of a 21-year-old Montgomery County man who was convicted of persuading his 16-year-old girlfriend to take and send sexually explicit photos of herself. He was arrested in 2000 when her father found the pics. After pleading guilty to seven child porn counts, he was sentenced to 5 to 23 months in county prison, plus 5 years of probation.

At the time of his plea and sentencing, the man, who is identified in the court opinion as A.S., along with the judge, prosecutor and defense attorney believed he would be subject to a 10-year registration, Dougherty noted. State police told him he had to register for life because of his multiple convictions in that single case....

Cumberland County District Attorney David Freed agreed with Marsico that the Supreme Court ruling could affect some plea talks. Still, he said it won't greatly alter the course of sex crime prosecutions. "As prosecutors, we'll be able to handle this," Freed said. The question is whether there will be moves in the Legislature to alter the law in light of the high court's decision.

Defense attorney Brian Perry praised the Supreme Court ruling for giving some offenders a chance to reform. "The court's decision allows individuals to rehabilitate themselves and not have to deal with (registration) for the rest of their lives," Perry said. "From the first-time defendant's perspective, it certainly makes sense."

The full opinion from the Pennsylvania Supreme Court in this case is available at this link.

August 17, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3)

Tuesday, August 16, 2016

Ninth Circuit panel rules appropriations rider precludes federal prosecution of individuals in complaince with state medical marijuana laws

A Ninth Circuit panel today finally ruled in US v. McIntosh, No. No. 15-10117 (9th Cir. Aug. 16, 2016) (available here), on a series of appeals concerning "whether criminal defendants may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the United States Department of Justice from spending funds to prevent states’ implementation of their own medical marijuana laws." Here is a key passage from the heart of the opinion:

DOJ, without taking any legal action against the Medical Marijuana States, prevents them from implementing their laws that authorize the use, distribution, possession, or cultivation of medical marijuana by prosecuting individuals for use, distribution, possession, or cultivation of medical marijuana that is authorized by such laws.  By officially permitting certain conduct, state law provides for nonprosecution of individuals who engage in such conduct.  If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law providing for non-prosecution of individuals who engage in the permitted conduct.

We therefore conclude that, at a minimum, § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.

Some previous related posts:

August 16, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?

The question in the title of this post reflects my ambivalent reactions to this lengthy and interesting AP article headlined "Prosecution trend: After fatal OD, dealer charged with death." Here are excerpts:

He knew he was in trouble even before he read the text message: "Did u hear what hapnd 2 ed?"  Ed Martin III had been found dead in the bathroom of a convenience store, slumped over on his knees with a needle and a residue-stained spoon in his pocket.  He'd mainlined fentanyl, an opioid up to 50 times more powerful than heroin.  A pink plastic bag of white powder sat on the sink.

Michael Millette had heard. The overdose death of his friend, just 28, brought tears to his eyes.  But he was scared, too. He was Martin's dealer, the man who'd sold him his final fix.  In panic, Millette fled to Vermont.  But within a day he was back, selling again. He needed money for his own habit.

Now, though, police had a tip that "Mike on Main Street" had been Martin's dealer.  Undercover officers began watching his furtive deals on a pedestrian bridge behind his apartment; they secretly photographed his visitors.  After he sold drugs to an informant, they swooped in and arrested him.

That's when Millette earned a dubious distinction: He became one of a growing number of dealers around the nation to face prosecution for the fatal heroin and fentanyl overdoses of their customers.  He was charged not just with drug dealing, but with causing Martin's death.  Maximum penalty: life behind bars.

In many states, including Ohio, Maine, West Virginia and New Jersey, authorities grappling with an alarming surge in opioid abuse are filing homicide, involuntary manslaughter or related charges against dealers.  They argue the overdose deaths should be treated as crimes leading to stiff sentences that deter others — and deliver a measure of justice.

"We need to send that message that you can't sell things that are the functional equivalent of poison," says New Hampshire Attorney General Joseph Foster, whose state has witnessed an explosion in drug-related deaths in recent years....

Littleton is the essence of New England charm, with a white clapboard inn that has welcomed visitors since they arrived by stagecoach, a 19th-century opera house and even a bronze statue of Pollyanna, the fictional optimist whose author was born here.

But beyond the postcard image is the crime blotter police Capt. Chris Tyler sees every day. In recent years, he says, drugs have been linked to 85 to 90 percent of the major crimes — burglary, theft, armed robbery, forgery, identity fraud....  When heroin first took hold here around 2013, Tyler explains, "there was just a general sense of denial. That was something that happens in big cities where people fall between the cracks. It wasn't going to happen here. But unfortunately it has."

It's not just heroin, but cocaine, fentanyl and a resurgence of crystal methamphetamine.  In one seven-month stretch last year, there were three overdose deaths, all connected to fentanyl.  In May, a police informant was fatally shot; he'd allegedly cooperated in identifying dealers in the area.

In New Hampshire, drug-related deaths have soared from 163 in 2012 to a projected 478 this year.  Fentanyl is increasingly the culprit.  From 2011 to last year, deaths caused solely by the synthetic opioid exploded from five to 161, according to the state coroner's office.  In that same period, the number of deaths caused by fentanyl combined with other drugs, including heroin, rose from 12 to 122....

Millette, 55, had been linked to another young man's fatal fentanyl overdose, but the witness wasn't credible so police didn't pursue the claims.  Millette insists he never was a big-time dealer, just a desperate addict.  But Tyler notes he peddled fentanyl, heroin and cocaine to more than 30 customers.  His strongest stuff was called "the fire."

Millette says he wasn't sure what he'd sold Martin, only that it was stronger than heroin.  He never tested what he sold. "If he's going to do it to a friend, who else will you do it to?" Tyler says. "He was somebody who needed to be stopped."

The prosecution of Michael Millette was part of a new thrust against opioid dealing in New Hampshire. In the spring, the U.S. attorney's office and the state's attorney general formed a task force to pursue dealers who sell opiates that result in fatal overdoses.  So far, 56 cases are being investigated, says Benjamin Agati, senior assistant attorney general.  In July, his office trained law enforcement throughout the state on how to identify these deaths and work with special prosecutors on investigations.

Though New Hampshire isn't ruling out filing homicide charges if needed — a strategy used in some other states — Agati says his office is pursuing dealers based on a law in which it must show they knowingly provided a drug that resulted in death.  The heightened focus on dealers, he says, partly stems from a sense among social workers, pharmacists and rehab experts that "'we can't treat our way out this. We can't do this alone. There has to be some way to stem the supply.  That's one reason we're trying the new approach."

But is this the right strategy?  The legal community is divided. "I just don't think the ultimate responsibility lies with the person who sells another addict a drug," says Marcie Hornick, who was Millette's public defender.  "I find it so counterproductive that they think sending these people to prison for long periods of time is going to have any deterrent effect.  It's an easy fix and perhaps it satisfies part of the population.  In reality, they come out and don't have the tools or skills to return to society."

But James Vara, who prosecuted the case and now is the governor's special drug adviser, rejects suggestions this is a politically motivated plan without merit. "Say that to a family who lost their child, their son, their brother, their daughter," he says. "Say that to Ed Martin's two children who are without their father as a result of this."

I agree with the statement by the public defender that the "ultimate responsibility" for an overdose death lies with the drug user not the drug dealer. But, especially as the number of these OD deaths are skyrocketing and drug dealers are seemingly not deterred from selling deadly drugs even when customers end up dead, it is not obvious to me that prosecuting dealers for homicide really is "counterproductive" or that it will not have some beneficial deterrent impact.

One reason I am generally supportive of marijuana reform and often troubled by long mandatory minimum sentencing terms for drug trafficking is because I dislike the nanny-state paternalism I see in decisions to criminalize and severely punish behaviors that do not obviously inflict serious harms upon innocent victims.   But if and when drug dealers (whether on street corners or Big Pharma corner offices) are profiting from knowingly and recklessly selling a product that is regularly killing purchasers, my disaffinity for criminalization and significant punishment fades.

August 16, 2016 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (19)

Monday, August 15, 2016

"What's Wrong With Sentencing Equality?"

The title of this post is the title of this notable new paper authored by Richard Bierschbach and Stephanos Bibas now available via SSRN.  Here is the abstract:

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random.  This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race.

Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment.  But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment.  It also has unintended consequences for the structure of sentencing. Focusing on outcomes centralizes power and draws it up to higher levels of government, sacrificing the checks and balances, disaggregation, experimentation, and localism that are practically baked into sentencing’s constitutional framework.

More flexible, process-oriented notions of equality might better give effect to a range of competing punishment considerations while still policing punishments for bias or arbitrariness.  They also could bring useful nuance to equality debates that swirl around restorative justice, California’s Realignment experiment, federal use of fast-track plea agreements, and other contemporary sentencing practices.

I am very much drawn to the themes of this paper, and thus I am looking forward to finding time to read all the particulars.

August 15, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (2)

Sunday, August 14, 2016

Former AG Eric Holder brags about his "too little, too late" approach to dealing with federal sentencing's myriad problems

Holder-covington-feature-heroEric Holder, who served as attorney general of the United States from 2009 to 2015, has this notable New York Times op-ed that I ultimately find more frustrating than encouraging. The article is headlined "Eric Holder: We Can Have Shorter Sentences and Less Crime," and here are excerpts that prompt my frustration (based on the dates I highlighed above, and related dates highlighted below, and a bit of inserted commentary):

The financial cost of our current incarceration policy is straining government budgets; the human and community costs are incalculable. Today, a rare bipartisan consensus in favor of changing drug-sentencing laws presents an opportunity to improve the fairness and efficiency of America’s criminal justice system. But to build on this coalition for reform, which includes senior law enforcement officials, we need action in Congress.

In February 2015, President Obama convened a group of lawmakers — including the Republican senators Chuck Grassley of Iowa and Rand Paul of Kentucky and the Democratic senators Dick Durbin of Illinois and Cory Booker of New Jersey — to build support for sweeping reforms. But the momentum has slowed thanks to opposition from a small group of Republican congressmen using language dredged from the past. One, Senator Tom Cotton of Arkansas, even claimed recently that “we have an under-incarceration problem.”

The Republican presidential nominee, Donald J. Trump, is now fanning fears about the level of crime in America, which is actually at historic lows [Ed Note: crime was at historic lows in 2014 and has recently been going up]. Such pandering is a reminder of how we got here in the first place....

Controlling for other factors, the United States Sentencing Commission found that between December 2007 and September 2011, black male defendants received sentences 20 percent longer than their white counterparts. From 1983 to 1997, the number of African-Americans sent to prison for drug offenses went up more than 26-fold, compared with a sevenfold increase for whites. By the early 2000s, more than twice as many African-Americans as whites were in state prisons for drug offenses....

The Justice Department has pioneered reform.  Three years ago, as attorney general, I established the Smart on Crime initiative to reduce draconian mandatory minimum sentencing for low-level drug offenses and encourage more investment in rehabilitation programs to tackle recidivism. The preliminary results are very encouraging. Over the last two years, federal prosecutors went from seeking a mandatory minimum penalty for drug trafficking in two-thirds of cases to doing so in less than half of them — the lowest rate on record. The initiative may not be solely responsible, but 2014 saw the first consecutive drop in the federal prison population in more than three decades, coinciding with a falling crime rate.

Those who argue that without the hammer of a mandatory minimum sentence defendants won’t cooperate are wrong — in fact, the rate of cooperation held steady under the initiative, and the rate of guilty pleas remained constant. The system remained effective and became fairer. Reform has not made us less safe....

Mandatory minimum sentences should be eliminated for many offenses, and where they are still applied, their length should be reduced. The legislative proposals necessarily reflect a compromise, but we must ensure that they go far enough: The judiciary needs greater discretion in imposing mandatory minimums, as do our prosecutors in seeking them. Given the absence of parole in the federal system, we should increase the amount of sentence-reduction credit available to inmates with records of good conduct. And all offenders, regardless of their designated risk level, should get credit for participating in rehabilitation programs....

There is still a disparity in sentencing for offenses relating to crack and powder cocaine, chemically identical substances. Given the policy’s differential racial impact, which erodes confidence in the justice system, this disparity must go. In the light of recent events, we can’t afford criminal justice policies that reduce the already fragile trust between minority communities and law enforcement agencies....

Whatever the outcomes of the bills before Congress and the presidential election, the Justice Department existing reforms must be preserved. Important as they are, all these initiatives have a bearing only on the federal justice system, which houses about 10 percent of the prison population.  For the federal effort to be a template for reform in the states, where most prisoners are detained, Congress must lead.

The nation’s lawmakers must stiffen their spines, ignore divisive language and schedule votes in this congressional session on reform legislation.  An opportunity like this comes once in a generation. We must not miss it.  The over-reliance on mandatory minimum sentences must come to an end.

I have emphasized dates here because I consider former AG Eric Holder (and his boss President Obama) to be among those who really should bear much responsibility if federal policy-makers miss what Holder calls a "once in a generation" opportunity for federal sentencing reform.  Tellingly, much of the incarceration data Holder stresses were well known and widely discussed when he assumed office in early 2009. (For example, in this Harvard Law & Policy Review piece from Fall 2008, I stressed the problems of modern mass incarceration and urged progressives to "mine modern movements in Constitutional and political theory to make new kinds of attacks on mass incarceration and extreme prison punishments" and to "be aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration.")  And yet, as Holder notes, he did not establish DOJ's Smart on Crime initiative until August 2013, and Prez Obama did not convene a group of lawmakers to push for reform in Congress until February 2015.

In other words, both Prez Obama and AG Holder fiddled while the federal sentencing system was still burning with tough-on-crime, mandatory-minimum "over-reliance" from 2009 to 2013 during the entire first Obama Administration Term.  And, critically, we should not lose sight of the important reality that Prez Obama's party controlled both houses of Congress until early 2011 and contolled the Senate until early 2015.  Moreover, the enduring and continued (misguided) opposition of Prez Obama and the Justice Department to mens rea reforms supported by the GOP establishment has arguably been the most critical roadblock to getting sweeping reform legislation enacted even now.

Last but not least, and as Holder reveals in this op-ed, federal prosecutors are still charging mandatory minimum drug sentencing provisions in near half of all drug cases (including in many crack cases where there is still a major, race-skewing sentencing disparity).  I suspect that when Holder says "mandatory minimum sentences should be eliminated for many offenses," he is largely referencing drug offenses in which no guns or violence were involved (where other mandatory minimums are applicable).  If Holder really believed that it would be sound and sensible to eliminate mandatory minimum sentences in such cases, he could have on his own included provisions in his Smart on Crime initiaitve to require line prosecutors to avoid charging under these statutes in all but the rarest drug cases rather than continuing to have these statutes still be applied in nearly half of all drug cases.

Sadly, I could go on and on and on about all the things former AG Holder could have and should have done while serving as U.S. Attorney General for six full years to deal with all the problems he now is quick to lament in the pages of the New York Times.  (Here it bears noting that he gets to write about these problems now from the safety of a corner office at a big DC firm where he is, according to this article, likely making more than $5,000,000/year, well over 20 times more than the hardest working federal prosecutors and federal defense attorneys make.)  Holder's closing sentiment urging federal lawmakers to "stiffen their spines" really gets my goat when his own spine struck me as so soft for his six years as Attorney General, and especially now that he gets to enjoy cashing in on the inside-the-Beltway privileges of allowing one's spine to blow back-and-forth with the prevailing political winds. 

August 14, 2016 in Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Saturday, August 13, 2016

"The Drug Court Paradigm"

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

Drug courts are specialized, problem-oriented diversion programs. Qualifying offenders receive treatment and intense court-supervision from these specialized criminal courts, rather than standard incarceration.  Although a body of scholarship critiques drug courts and recent sentencing reforms, few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts.

This Article explores the broader effects of the drug court movement, arguing that it created a particular paradigm that states have adopted to manage overflowing prison populations. This drug court paradigm has proved attractive to politicians and reformers alike because it facilitates sentencing reforms for low-level, nonviolent drug offenders that provide treatment-oriented diversions from incarceration.  Though reforms adopted within the drug court paradigm have contributed to stabilizing prison populations and have created a national platform to discuss mass incarceration, this paradigm has limits that may prevent long-term reductions in prison populations.  This Article identifies three limitations of the drug court paradigm: First, by focusing exclusively on low-level drug offenders, the approach detrimentally narrows analysis of the problem of mass incarceration; second, by presenting a “solution,” it obscures the ways that recent reforms may exacerbate mass incarceration; third, by emphasizing a focus on treatment-oriented reforms, this paradigm aggressively inserts the criminal justice system into the private lives of an expanding mass of citizens.

This Article locates the current frame’s origin in the drug court movement. Identifying this connection is important for two reasons: First, it provides new insight to how we define “success” in criminal justice, and why.  Second, it illuminates a growing tension between government actors and the general public’s appetite for criminal justice reforms that meaningfully reduce mass incarceration.

I am putting this article on my must-read list because the author is 100% right when noting that "few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts." Indeed, I have been surprised about how little active discourse about drug courts there has been in recent years in academic and policy circles.

August 13, 2016 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (6)

Thursday, August 11, 2016

"Public Defenders vs. Private Court Appointed Attorneys: An Investigation of Indigent Defense Systems"

The title of this post is the title of this intriguing empirical paper recently posted on SSRN authored by Yotam Shem-Tov. Here is the abstract (with one line emphasized by me):

Individuals facing criminal charges in the U.S. have a constitutional right to attorney representation.  If they cannot afford one, the court is required to appoint and finance a legal counsel. Indigent defense systems are usually composed of private court appointed attorneys and/or a public defenders’ organization.  I investigate the causal effect of being assigned a public defender as oppose to a private court appointed attorney on defendants’ trial outcomes using a new “twins design” identification strategy.

I argue and show empirically that in co-defendant cases, the decision of who is assigned to the public defender organization can be treated as close to a randomized experiment, which can be exploited to measure the effectiveness of court appointed private attorneys relative to public defenders.  Using data from all multiple defendant cases in federal courts between 2001-2014, I find that defendants assigned a public defender in co-defendant cases had slightly worse outcomes: a higher probability of being convicted, an average of three months longer expected prison sentence, longer court proceedings and a higher probability of reaching a plea bargain.  However, there is large heterogeneity in public defender effectiveness across federal districts ranging from a 13.8 month longer prison term to a 16.1 month shorter prison term.

I lack the empirical skills to question or assess the new “twins design” identification strategy used in this paper, and the full paper is full of challenging empirical jargon like "The main regression specications is Yit = B . PDi + aj(I) + X'it􀀀 + Eit".  That said, my first reaction is to be quite suspicious of these findings/conclusions due to (1) my own experiences and high regard for the work of nearly all federal public defenders, and (2) my own normative instinct that, at least for a significant number of federal defendants, experiencing "longer court proceedings and a higher probability of reaching a plea bargain" is not at all a marker of a "worse outcome."

August 11, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Tuesday, August 09, 2016

As federal prosecutors urged, former Gov Blagojevich resentenced to same 14-year prison term despite a few vacated convictions

As reported in this Wall Street Journal piece, a "federal judge on Tuesday refused to reduce a 14-year prison sentence handed down to former Illinois Gov. Rod Blagojevich" at his resentencing. Here are more details on why and how Blago was resentenced earlier today:

“The fabric of this state is torn,” said U.S. District Judge James Zagel, adding that “the fault lies with the governor and no one else” for his lengthy sentence. The former governor, 59, now will have 10 years left to serve of his prison sentence.  Mr. Blagojevich — appearing via video feed from a prison in Colorado with his once-black hair turned grayish-white — appeared stunned and shook his head as the judge delivered his decision.

Mr. Blagojevich had appealed for a reduced sentence of just five years after an appeals court last year threw out five of the original 18 counts for which he was found guilty. In court on Tuesday, his lawyer Len Goodman argued that his case was “significantly different” after the appellate court’s ruling. Mr. Goodman also argued that Mr. Blagojevich wasn't acting inappropriately for personal gain, but to acquire political muscle and therefore should serve a shorter sentence.

“He never took a bribe,” said Mr. Goodman, speaking in court. “He bought his own clothes; he bought his own baseball tickets.” Mr. Blagojevich, speaking to the court via a blurry video feed, apologized for his mistakes and for his actions in his time as governor. “I recognize that it was my words and my actions that have led me here,” he said, with his family present in court. “I’ve made mistakes and I wish I had a way to turn the clock back.”...

Both his children addressed the court Tuesday, saying that their father was a good man and that their family was suffering greatly from his absence. They both broke down in court upon hearing the judge’s sentence. Mr. Goodman also submitted a series of letters to the court written by prisoners who were serving time with Mr. Blagojevich, all of whom said he was an inspiration who was helping them through their sentences and teaching them useful skills, including how to prepare for a job interview.

Judge Zagel said that Mr. Blagojevich’s good behavior in prison was “not especially germane” to his decision and that the same circumstances remained from when he rendered the sentence in 2011.

Speaking after the sentencing, Patti Blagojevich, the former governor’s wife, said that his family finds the sentence “unusually cruel and heartless and unfair.”

“I am dumbfounded and flabbergasted at the inability of the judge to see that things were different” than before, she said.

I would assume that the former Gov may now appeal this newly-imposed 14-year prison term. Depending upon how the full sentencing record now shapes up, it seems at least possible that a Seventh Circuit panel might give a hard look at the reasons given by the district judge here for not changing the sentence at all this time around.

Some older related posts on the Blagojevich case:

August 9, 2016 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (7)

Finding (substantive?) due process violation, federal district judge refuses to apply statutory mandatory minimum made applicable by government stash-house sting

A helpful reader alterted me to a very interesting new federal sentencing opinion authored by Gerald Austin McHugh, Jr. in US v. McLean, No. 13-CR-487 (ED Pa Aug. 8, 2016) (available here). The full 29-page McLean opinion is a must-read for all persons interested in federal drug sentencing and dynamic views on sentencing limits that might be found in the Fifth Amendment's Due Process Clause. The opinion's introduction highlights why this decision is so interesting (and might make for a very interesting case to watch if federal prosecutors appeal to the Third Circuit):

The latitude given to federal authorities in charging drug offenses has been described as creating a “terrifying capacity for escalation of a defendant's sentence.”1 [FN1: United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993).]  This case exemplifies that reality, as a defendant caught by an undercover “sting” operation faces a Guideline sentence of 35 years to life imprisonment, with a mandatory minimum sentence of 25 years, because of a professed willingness to rob a drug stash house that was invented entirely by Government agents, containing a fictional amount of drugs chosen by those agents.  At sentencing, Defendant Clifton McLean argued that his sentence should be reduced because the Government improperly inflated his culpability by choosing a quantity of drugs — 5 kilograms of cocaine — that would trigger such a high mandatory minimum.

In an earlier opinion, I described the historical background of ATF “sting” cases, and concern among both judges and commentators over the consequences of this particular law enforcement tactic.  United States v. McLean, 85 F. Supp. 3d 825 (E.D. Pa. 2015).  Although I denied Defendant’s Motion to Dismiss the Indictment, resulting in his trial and conviction, as to this issue, I agree that imposing the sentence prescribed for the quantity of cocaine charged would violate his constitutional right to Due Process of Law on the facts of this case.  I have as a result imposed a sentence that excludes consideration of the amount specified by the Government, imposing only two of the three mandatory minimums for the reasons that follow.

August 9, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

"Put Away The Pitchforks Against Judge Persky"

The title of this post is the headline of this lengthy new Politico commentary authored by Lara Bazelon, which carries this sub-headline "Yes, he gave Stanford rapist Brock Turner a break. But to recall him would be to overturn our legal system."  Here is how the commentary, which merits a full read, gets started:

On this we can all agree: Brock Allen Turner, a blonde-haired, blue-eyed, one-time All-American Stanford freshman swimmer, is stone cold, beyond-a-reasonable-doubt guilty of committing a violent sexual assault against an unconscious woman behind a dumpster. Because what Turner did was brutal, criminal and depraved, and because of his utter lack of remorse—much less insight into his behavior—he should have gone to prison.

But the reaction to the lenient sentence given to Turner by Santa Clara County Superior Court Judge Aaron Persky is, frankly, frightening, dangerous and profoundly misguided.

In a charge spearheaded by Stanford law professor Michele Dauber — a close friend of the victim’s family — an effort is underway to recall Persky from office.  Sixteen state legislators have demanded that the California Commission on Judicial Performance investigate Persky for misconduct. Over a million members of the feminist organization UltraViolet signed an online petition voicing their agreement.  The group also hired a plane to fly over Stanford during graduation carrying a banner that said, “Protect Survivors. Not Rapists. #PerksyMustGo,” and paid for a billboard on a nearby, high-traffic freeway that sends the same message.

Earlier this summer, prosecutors filed a motion to disqualify Judge Persky from presiding over another sexual assault case involving an unconscious victim — a sedated patient allegedly fondled by a nurse.  More recently, Persky came under fire once again for imposing a three-year sentence on a Latino man who committed an assault, that, on the surface at least, seemed similar to Turner’s.   But unlike the Turner case, the sentence was imposed after the defense and the prosecution agreed to it.  Nevertheless, the mob pounced. It was yet another sign, they said, of Persky’s bias toward white, affluent men — presumably the only kind of person he was able to relate to.  Dauber told NPR, “Hopefully, a qualified woman will replace him.”

As a law professor well-versed in the vital importance of an independent judiciary, Dauber should know better. Removing a judge — never mind investigating him for misconduct — because of a single bad decision undermines the rule of law.  It sends a chill down the spines of elected judges everywhere, which is nearly every judge in the state court across the United States.

I am pleased to see someone talking about rule-of-law concerns if/when folks get heavily invested in seeking to recall a judge for what is viewed as a bad ruling. But I actually think the Brock Turner case serves as even more of an object lesson in how hard it will be to fully address modern mass incarceration in the United States when there are still so many powerful and prominent Americans who are eager to devote time and energy to vindicate and operationalize the view that lengthy terms of incarceration are the only "fitting" form of punishment for many crimes and many defendants.

Some prior related posts:

August 9, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Highlighting the notable absence of criminal trials in a high-profile federal district court ... thanks to the modern "trial penalty"

Jury1Yesterday's New York Times had this article on the modern reality of negotiated federal criminal justice headlined "Trial by Jury, a Hallowed American Right, Is Vanishing."  Here are excerpts:

The criminal trial ended more than two and a half years ago, but Judge Jesse M. Furman can still vividly recall the case.  It stands out, not because of the defendant or the subject matter, but because of its rarity: In his four-plus years on the bench in Federal District Court in Manhattan, it was his only criminal jury trial.

He is far from alone. Judge J. Paul Oetken, in half a decade on that bench, has had four criminal trials, including one that was repeated after a jury deadlocked.  For Judge Lewis A. Kaplan, who has handled some of the nation’s most important terrorism cases, it has been 18 months since his last criminal jury trial.  “It’s a loss,” Judge Kaplan said, “because when one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal jury trials, that is happening less frequently.”

The national decline in trials, both criminal and civil, has been noted in law journal articles, bar association studies and judicial opinions.  But recently, in the two federal courthouses in Manhattan and a third in White Plains (known collectively as the Southern District of New York), the vanishing of criminal jury trials has never seemed so pronounced.  The Southern District held only 50 criminal jury trials last year, the lowest since 2004, according to data provided by the court.  The pace remains slow this year.

In 2005, records show, there were more than double the number of trials: 106. And decades ago, legal experts said, the numbers were much higher. “It’s hugely disappointing,” said Judge Jed S. Rakoff, a 20-year veteran of the Manhattan federal bench. “A trial is the one place where the system really gets tested.  Everything else is done behind closed doors.”

Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences.  “This is what jury trials were supposed to be a check against — the potential abuse of the use of prosecutorial power,” said Frederick P. Hafetz, a defense lawyer and a former chief of the criminal division of the United States attorney’s office in Manhattan, who is researching the issue of declining trials.

Julia L. Gatto, a federal public defender, recalled the case of Oumar Issa, a Malian arrested in Africa in a 2009 sting operation on charges of narco-terrorism conspiracy, which carried a mandatory minimum 20-year sentence, and conspiring to support a terrorist organization, which had no minimum.  Although Ms. Gatto and her client believed that elements of the case were weak and that there were strongly mitigating circumstances, Mr. Issa concluded that the risk of going to trial was too high.  He pleaded guilty in 2012 to material support, with prosecutors dropping the other charge.  He received 57 months in prison. “It was the only thing he could do,” Ms. Gatto said. “His hands were tied.”

In 1997, according to federal courts data nationwide, 3,200 of 63,000 federal defendants were convicted in jury trials; in 2015, there were only 1,650 jury convictions, out of 81,000 defendants....

Judge P. Kevin Castel, who helped to organize the court’s 225th anniversary celebration in 2014, recalled taking a friend, Mary Noe, a legal studies professor at St. John’s University, to see an exhibit of courtroom illustrations documenting Southern District trial scenes of past decades.  But as they reached the end, Professor Noe observed that the sketches of more recent defendants, like Bernard L. Madoff and the would-be Times Square bomber Faisal Shahzad showed them pleading guilty.  “I was like, what happened to the trials?” she recalled.

Judge Analisa Torres said she had felt the difference ever since joining the federal bench in 2013.  Judge Torres, a former state court judge who handled about two dozen criminal trials a year in Manhattan and the Bronx, said she has since had just a few such trials. “It’s day and night,” she said. On the state bench, she said, she spent her entire day in the courtroom but for the lunch hour. “Now, I am in chambers all day long.”

This article rightfully suggests that the vanishing jury trial is a sentencing story related to the distinctive severity of federal statutes and guidelines and the impact of the modern "trial penalty" in federal courts. Competent defense attorneys have to tell their federal clients that the decision to test the government's evidence at trial will almost always risk adding years, if not decades, to any eventual federal sentence on any charge that produces a conviction.

It is ironic, but not really surprising, that this problem has only gotten worse since the Blakely and Booker SCOTUS rulings a decade ago made much of a defendant's Sixth Amendment right to a jury trial.  Had the Booker court adopted a "jury trial" remedy to "fix" federal guideline sentencing rather than the advisory remedy, we likely would have seen an increase in jury trials focused on specific guideline enhancements (especially in fraud and other kinds of high-profile cases more common in the Southern District of New York).  In addition, modern federal sentencing doctrines that diminish the need for and significance of jury determinations — like guideline anhancements based on "acquitted conduct" and "uncharged conduct" and "relevant conduct" — would be no more.

It is also disconcerting, but not surprising, that federal district judges are now so quick to lament the lack of jury trials, but are still so slow to explore their powers and opportunities to encourage more trials.  Though subject to some legal uncertainty (and sure to generate some federal prosecutorial pushback), federal judges still could today consider requiring limited jury trials to aid the resolution of any major factual disputes that have major guideline sentencing consequences.  Notably, in other high-profile settings, especially with respect to the death penalty and fraud sentencings and collateral consequences, SDNY federal district judges have been willing to test the reach and limits of thier judicial authority to move the law forward as they see fit.  If these judges really lament the vanishing criminal trial so much, they can and should be more aggressively exploring just what they might be able to do about this problem.

August 9, 2016 in Blakely Commentary and News, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Monday, August 08, 2016

Split en banc Fifth Circuit limits reach of Johnson vagueness ruling while debating what makes for a "constitutional sockdolager"

Especially while traveling and being engaged with lots of other projects, I have not been able to keep up fully this summer with many lower federal court cases exploring the application of the Supreme Court's Johnson ACCA vagueness ruling to other comparable provisions of other federal sentencing statutes and guidelines.  Helpfully, though, an en banc ruling by the Fifth Circuit late last week in US v. Gonzalez-Longoria, No. 15-40041 (5th Cir. Aug. 5, 2016) (available here), provides something of a primer on developments in one notable context. Here is how the en banc majority opinion (per Judge Higginson) gets started and a key part of its analysis:

This case presents the question whether the “crime of violence” definition provided by 18 U.S.C. § 16(b), when incorporated by reference into United States Sentencing Guidelines § 2L1.2(b)(1)(C), is unconstitutionally vague on its face in light of Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Court struck as unconstitutionally vague the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii). We hold that 18 U.S.C. § 16(b) is not unconstitutionally vague....

The [textual] distinctions [in how “crime of violence” is defined in § 16(b)] mean that the concerns raised by the Court in Johnson with respect to Armed Career Criminal Act’s residual clause do not cause the same problems in the context of 18 U.S.C. § 16(b). While there might be specific situations in which 18 U.S.C. § 16(b) would be vague — although Gonzalez-Longoria does not suggest any in particular — it is certainly not a statute that “simply has no core.”

And here is how the dissenting opinion (per Judge Jolly) gets started and key parts of its analysis (with emphasis from the original):

I am in agreement with the majority’s framework for deciding this case. Specifically, I agree that Johnson “highlighted two features of the [Armed Career Criminal] Act’s residual clause that together make the clause unconstitutionally vague [and that] 18 U.S.C. § 16(b) shares these two features.” I also agree that “neither feature causes the same level of indeterminacy in the context of 18 U.S.C. § 16(b).”  The majority, however, drifts from reason — and into the miasma of the minutiae — when it determines that these vagaries suffice to distinguish § 16(b) from the residual clause.  Accordingly, I respectfully dissent....

I can agree that [a textual distinction] provides a shadow of difference, but hardly a constitutional sockdolager. This difference between the two statutes is particularly slight because, through judicial interpretation, § 16(b) not only contains an example, it contains the very example that most troubled the Johnson Court....

These statutes read extremely similarly. The majority of circuits to have considered the question have held that these two similar texts must suffer the same constitutional fate. The majority, engrossed by thinly sliced and meaningless distinctions, adopts the minority view and errs by losing track of the entirety: these statutes, in constitutional essence, say the same thing.

August 8, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (4)

Thursday, August 04, 2016

State public defender, lamenting funding issues, appoints Mizzou Gov to represent indigent defendant

As reported in this local article, headlined "Missouri's head public defender assigns case to Gov. Nixon, cites overburdened staff," Missouri's head public defender as ordered the state's Governor to put his mouth where his money isn't. Here are the details and context:

Fed up with what he says is the governor’s failure to properly fund his overwhelmed office, the state’s lead public defender ordered Gov. Jay Nixon this week to represent a poor person in Cole County this month. Michael Barrett said he was using a provision of state law that allows him in extraordinary circumstances to delegate legal representation “to any member of the state bar of Missouri.” He’s starting with the state’s highest-profile lawyer: Nixon.

Barrett says the governor has repeatedly declined to give the public defender system the money it requests and is withholding promised funding increases this year. “Providing counsel to poor people who face incarceration is the obligation of the state. It’s not fair to go after private attorneys who are trying to pay the rent when they had nothing to do with contributing to this,” Barrett said in an interview Wednesday.

Barrett never exercised this power before because he thought it was wrong to place the burden of public cases on private attorneys “who have in no way contributed to the current crisis,” he wrote in a letter to the governor dated Tuesday. “However, given the extraordinary circumstances that compel me to entertain any and all avenues for relief, it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique position to address it,” Barrett wrote, referring to Nixon, a Democrat who was a four-term attorney general before becoming governor.

Studies have found that the Missouri Public Defender System lacks the resources or staff to serve the state’s neediest. The system has struggled with high caseloads, high turnover, low salaries and tired, overworked attorneys for years. The Missouri constitution allows the director of the public defender system to assign cases to any lawyer in the state, regardless of whether the lawyer is a public defender, Barrett said.

Just this June, the legislature granted the public defender system a $4.5 million increase, which would’ve helped in hiring 10 more employees and some private attorneys on a contractual basis. The office currently employs more than 370 attorneys. Officials with the public defender’s office had asked for a $23.1 million boost, while Nixon recommended a $1 million increase.

Last month, Barrett and the Missouri State Public Defender Commission filed a lawsuit claiming that Nixon withheld $3.5 million of that $4.5 million increase. Barrett claims Nixon is targeting the public defender system for budget cuts while leaving more money for other programs he likes. Nixon’s office could not be immediately reached for comment Wednesday night.

A 2014 study found that the state’s public defender system needs almost 270 more attorneys to meet its current case volume, which fluctuates between 70,000 and 100,000 cases every year. In 2009, Missouri’s was the second-lowest-funded public defender system in the country. Now, Barrett says that he has even fewer lawyers than when that study was done. He’s lost 30 lawyers because he doesn’t have the money to hire replacements as employees leave for private law firms. Meanwhile, the system’s caseload has gone up 12 percent over the past year to about 82,000 cases, Barrett said. Each of his lawyers has to handle 125 to more than 200 cases at a time.

The full letter that the state public defender wrote to Gov Nixon when appointing him is available at this link.

August 4, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Tuesday, August 02, 2016

In wake of Hurst, Delaware Supreme Court declares state's death penalty unconstitutional

The post-Hurst hydra took an especially big bite out the the death penalty in the First State this afternoon: as reported in this local article, via "a landmark decision, the Delaware Supreme Court has ruled that the state's death penalty statute is unconstitutional." Here are the basics:

A 148-page opinion released Tuesday afternoon said that the current law is a violation of the Sixth Amendment role of the jury. The decision of whether and how to reinstate the death penalty should now be left to the General Assembly, the opinion said.

The question before the top state court arose after the U.S. Supreme Court found in January that Florida's death penalty law was unconstitutional because it gave judges – not juries – the final say to impose a death sentence. Delaware and Alabama are the only other states that allow judges to override a jury's recommendation of life....

The last execution in the state was in 2012, when Shannon Johnson, 28, was killed by lethal injection. All pending capital murder trials and executions for the 14 men on death row are currently on hold while the court considered the constitutionality issue.

The full 148-page opinion in Rauf v. Delaware is available at this link.  A brief per curiam summary kicks off the opinion, starting this way:

The State has charged the Defendant, Benjamin Rauf with one count of First Degree Intentional Murder, one count of First Degree Felony Murder, Possession of a Firearm During those Felonies, and First Degree Robbery.  The State has expressed its intention to seek the death penalty if Rauf is convicted on either of the First Degree Murder counts.  On January 12, 2016, the United States Supreme Court held in Hurst v. Florida that Florida‘s capital sentencing scheme was unconstitutional because "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death."  On January 25, 2016, the Superior Court certified five questions of law to this Court for disposition in accordance with Supreme Court Rule 41.  On January 28, 2016, this Court accepted revised versions of the questions certified by the Superior Court and designated Rauf as the appellant and the State as the appellee.

In this case, we are asked to address important questions regarding the constitutionality of our state‘s death penalty statute. The Superior Court believed that Hurst reflected an evolution of the law that raised serious questions about the continuing validity of Delaware‘s death penalty statute.  Specifically, Hurst prompted the question of whether our death penalty statute sufficiently respects a defendant‘s Sixth Amendment right to trial by jury.

Because answering the certified questions requires us to interpret not simply the Sixth Amendment itself, but the complex body of case law interpreting it, we have a diversity of views on exactly why the answers to the questions are what we have found them to be.  But that diversity of views is outweighed by the majority‘s collective view that Delaware‘s current death penalty statute violates the Sixth Amendment role of the jury as set forth in Hurst.  We also have a shared belief that the importance of the subject to our state and our fellow citizens, reflected in the excellent briefs and arguments of the parties, makes it useful for all the Justices to bring our various perspectives to bear on these difficult questions.

August 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Charleston mass murderer now making mass attack on constitutionality of federal death penalty

As reported in this BuzzFeed News piece, headlined "Dylann Roof Challenges Constitutionality Of Federal Death Penalty Law," a notorious mass murderer filed a notable motion in federal court yesterday in an effort to prevent being subject to the ultimate punishment.  Here are the details:

Lawyers for Dylann Roof on Monday filed a motion challenging the federal government’s intention to seek the death penalty in his murder trial, arguing that the penalty is unconstitutional. “[T]his Court should rule that the federal death penalty constitutes a legally prohibited, arbitrary, cruel and unusual punishment prohibited by both the Fifth and Eighth Amendments,” lawyers write in defense of Roof, who is charged with murder for the shooting deaths of nine people inside a historically black South Carolina church this past summer.

In the filing, the lawyers argue that the death penalty itself is unconstitutional, as is the federal death penalty law. “[T]he [Federal Death Penalty Act] may have been designed with as much care as possible under the circumstances, the capital sentencing process that the statute provides is constitutionally inadequate in practice,” the lawyers write. “The results of jurors’ good-faith grappling with the law — arbitrary, biased, and erroneous death verdicts — are intolerable as a matter of due process and proportional punishment.”

The challenge is only being brought, the lawyers write, because the federal government is seeking the death penalty in Roof’s case after rejecting his offer to plead guilty and accept multiple life sentences without the possibility of parole....

In addition to the two broad constitutional challenges, Roof’s lawyers are also challenging the jury selection process referred to as “death qualification” — finding a jury willing to impose the death penalty. As the lawyers note, “conscientious objectors to the death penalty are systematically excluded” from such juries. “Because the practice of death qualifying a jury has no constitutional or statutory underpinnings, distorts the jury function, introduces arbitrariness into capital sentencing and increases the influence of racism and sexism on the death determination, there is no justification for maintaining it,” the lawyers write.

The lawyers are also challenging related to the use of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA) in the prosecution, noting that the legislation considered including the death penalty as a punishment but ultimately rejected it. “[D]espite Congress’s deliberate decision not to provide for the death penalty in HCPA prosecutions, the government has effectively amended the statute to permit a death sentence to be imposed,” the lawyers argue. 

The full 34-page filing seeking to "strike the death penalty as a possinle punishment" is available at this link.

A few prior related posts:

August 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (2)

Saturday, July 30, 2016

Judge Jack Weinstein authors mega-opinion threatening to find sentence unconstitutional if offender not placed in certain prison(!?!?)

A number of helpful reader alerted me to this notable local story describing the latest remarkable (and legally suspect?) sentencing opinion by US District Judge Jack Weinstein.  The piece is (inaccurately) headlined "Brooklyn judge says no prison for convicted child molester," and here are the reported details:

A Brooklyn federal judge on Thursday urged the U.S. Bureau of Prisons to hold a convicted child molester in a medical facility and said he would find the 15-year mandatory minimum sentence unconstitutional if the bureau doesn’t comply.

The apparently unprecedented move by U.S. District Judge Jack Weinstein, who said defendant “D.W.” — identified on the court docket as Darnell Washington — had mental problems and would be a suicide risk in the general prison population, reflected the judge’s long-standing criticism of mandatory minimums.

Weinstein said Washington, 27, of Brooklyn, a repeat offender convicted of both child pornography charges and sexual exploitation of a minor, had been abused as a child, raped during an earlier prison stint, identified as gay and was suicidal.

The judge said 15 years in a regular prison would make him “uniquely vulnerable” to abuse or solitary confinement, and amount to cruel and unusual punishment. He said the time should be served at the Federal Medical Center prison in Devens, Massachusetts, where sex-offender treatment is available, or another medical facility.

The Bureau of Prisons is not obligated to follow a judge’s preference, but Weinstein said if his recommendations were ignored and Washington was put in “general population of a medium or high security prison” he was “prepared” to find the sentence unconstitutional.

“The court is required . . . to impose a sentence of fifteen years in prison on this defendant,” Weinstein wrote in his 215-page ruling. “But, it has the responsibility and power to ensure that the sentence is carried out in a civilized way.”

Until I have an opportunity to review the 200+ page opinion in this case (which I cannot yet find on-line), I am not yet prepared to criticize Judge Weinstein's work here. Moreover, now that the judge has imposed the formal sentence, I am not sure he even has any proper jurisdictional basis to declare it unconstitutional if (and when?) prison official do not comply with his placement mandate.

UPDATE:  A helpful reader sent me a copy of the full opinion in US v. DW for posting here:  Download US v DW

July 30, 2016 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Thursday, July 28, 2016

"California Votes 2016: An Analysis of the Competing Death Penalty Ballot Initiatives."

The title of this post is the title of this lengthy report recently published by the Alarcón Advocacy Center at Loyola Law School, Los Angeles and co-authored by Professor Paula Mitchell, executive director of the Alarcón Advocacy Center, and Nancy Haydt, Board of Governors, California Attorneys for Criminal Justice.  The perspective on whether to end or mend the California death penalty is somewhat predictable based on the past work of the authors, and this overview from the document itself provides a summary of its analysis:

California voters will decide the fate of the state’s death penalty this November. There is now a broad consensus that California’s death penalty system is broken.  Voters will be asked to choose between two starkly different proposals to address its dysfunction and failures.  Competing ballot initiatives will ask voters either to replace the death penalty with life without the possibility of parole, or to double down on the failed system by spending millions more to modify and expand it.

Voters can either support YES on Prop 62, which will replace the death penalty with life without parole and save the state $150 million per year.  Or, voters can support Prop 66 to keep the death penalty system and implement multiple changes to how it operates.  Each proposition would make substantial and far reaching changes to California’s criminal justice system. But only one can pass into law: if both propositions receive more than 50% of the vote, then the one with most votes will become law and the other will not.

This Report analyzes the competing initiatives.  It looks at the current state of the death penalty system in California and analyzes how each initiative will work in practice.  In particular it looks at whether the initiatives will achieve their stated goals, and whether there would be other, perhaps unintended, consequences to their passage into law.

This Report concludes that Prop 66’s proposed “fixes” to the current system will cost millions more than the already expensive death penalty system and will not speed up executions.  In fact, Prop 66 will only make matters worse by creating more delays and further clogging the state’s over-burdened court system.  Prop 66 will add layers of appeals to a system already facing an insurmountable backlog of decades of death penalty appeals waiting to be decided.

Prop 66 contains other provisions that proponents claim will speed up executions, such as keeping the lethal injection protocols secret and out of the public’s purview, exempting them from the Administrative Procedures Act.  This and other key features of Prop 66 will certainly be subject to litigation challenging the provisions on constitutional and other grounds, should Prop 66 pass, adding yet more delays to death penalty cases.

The Report further finds that Prop 66 fails to make the constitutional changes required to deliver the results it promises.  At the same time, its proposals are so convoluted that they are likely to create many new problems that will not only complicate the administration of the death penalty system, but will also impact and harm the rest of California’s legal system.

This Report finds that Prop 62, by contrast, is straightforward and transparent.  It replaces the death penalty with life without the possibility of parole, saving the state $1.5 billion in the next ten years alone.  Prop 62 requires inmates to work and increases the victim compensation rate.  Prop 62 ensures that the state never executes an innocent person, without jeopardizing public safety.

July 28, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"The Downstream Consequences of Misdemeanor Pretrial Detention"

The title of this post is the title of this intriguing new empirical paper available via SSRN authored by Paul Heaton, Sandra Mayson and Megan Stevenson. Here is the abstract:

In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited.  This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas — the third largest county in the U.S. — to measure the effects of pretrial detention on case outcomes and future crime.

We find that detained defendants are 25% more likely than similarly situated releases to plead guilty, 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average. Furthermore, those detained pretrial are more likely to commit future crime, suggesting that detention may have a criminogenic effect.  These differences persist even after fully controlling for the initial bail amount as well as detailed offense, demographic, and criminal history characteristics.  Use of more limited sets of controls, as in prior research, overstates the adverse impacts of detention.  A quasi-experimental analysis based upon case timing confirms that these differences likely reflect the casual effect of detention.  These results raise important constitutional questions, and suggest that Harris County could save millions of dollars a year, increase public safety, and reduce wrongful convictions with better pretrial release policy.

I fear that most criminal justice researchers and reform advocates (myself included) pay much less attention to misdemeanor crimes and punishments than to so many other parts of the justice system. This article (and a few others noted below in prior posts) provides a reminder that we should not overlook this important element of modern justice systems.

Some prior related research and advocacy on misdemeanors:

July 28, 2016 in Data on sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4)

Wednesday, July 27, 2016

John Hinkley now to be freed from a psychiatric hospital, now 35 years after his crime and verdict of not guilty by reason of insanity

As reported in this Reuters piece, "John Hinckley Jr., who wounded U.S. President Ronald Reagan and three other people in a 1981 assassination attempt prompted by his obsession with actress Jodie Foster, can be freed from a psychiatric hospital to live with his mother, a federal judge ruled on Wednesday."  Here is more about this notable ruling in perhaps the highest-profile insanity case of all time:

U.S. District Judge Paul Friedman said Hinckley, 61, who was found not guilty by reason of insanity in a 1982 trial, no longer posed a danger to himself or others. He said Hinckley could be released from St. Elizabeth's, a government psychiatric hospital in Washington, as soon as Aug. 5, subject to nearly three dozen conditions. "Since 1983, when he last attempted suicide, he has displayed no symptoms of active mental illness, exhibited no violent behavior, shown no interest in weapons, and demonstrated no suicidal ideation," Friedman said of Hinckley in a 103-page opinion.

In addition to Reagan, Hinckley's attack wounded presidential press secretary James Brady, a policeman and a Secret Service agent. It helped launch the modern gun control movement, as Brady and his wife, Sarah, founded what is now known as the Brady Campaign to Prevent Gun Violence after he was left permanently disabled. The Bradys' support helped the Brady Handgun Violence Prevention Act become law in 1993, imposing federal background checks on gun purchases and a five-day waiting period.

The Hinckley verdict also led several states to rewrite their laws making it more difficult to use the insanity defense while the U.S. Secret Service tightened its protocols for presidential security.

Upon his admission to St. Elizabeth's, doctors diagnosed Hinckley with depression and psychosis - two maladies they say have been in remission for years. Friedman said Hinckley will be required to spend at least a year living with his mother, Jo Ann, 90, in Williamsburg, Virginia, about 130 miles (210 km) south of Washington, where he has been making increasingly long furlough visits for several years.

If Hinckley's treatment team approves, he may then move into his own residence by himself or with roommates, Friedman said. He also said if Hinckley's mother becomes unable to monitor him in her home, his brother or sister will be required to live there with him until the hospital determines an alternate plan. In a May story about Hinckley's life, Washingtonian magazine cited neighbors in her gated community who liked Mrs. Hinckley but did not want him living there.

Hinckley had unsuccessfully sought jobs in Williamsburg at places such as Starbucks and a Subway sandwich shop and tried to become involved in volunteer programs in the town, Washingtonian said. He eventually took a volunteer job in the library of a psychiatric facility in Williamsburg. Hinckley's behavior during his furlough visits has been unimpeachable aside from a few occasions, the judge wrote. Twice in 2011, Hinckley lied to hospital staff about where he had been.

Friedman's order imposes nearly three dozen conditions, including a requirement that Hinckley meet with his psychiatrist in Washington monthly and notify the Secret Service when he travels for the appointment. He is barred from making contact with Foster or her family, Reagan's family and relatives of the other victims, and he is required to either work or volunteer at least three days per week. He is restricted to a 50-mile radius of Williamsburg and must make information about his mobile phone, vehicle and Internet browsing history available to his treatment team and law enforcement.

The petition for release from Hinckley was supported by his doctors but opposed by U.S. prosecutors. A spokesman for the U.S. Attorney's office in Washington did not immediately respond to a request for comment, nor did Hinckley lawyer Barry Levine. Hinckley was a 25-year-old college dropout with vague aspirations of a musical career when he fired at Reagan. He had become obsessed with Foster and the Martin Scorsese film "Taxi Driver" in which she played a teenage prostitute. Hinckley began to identify with the film's main character, Travis Bickle, who planned to assassinate a presidential candidate, and spent several years trying to make contact with Foster, who was a student at Yale University in Connecticut.

On March 30, 1981, Hinckley wrote Foster a letter detailing his plans to kill Reagan in an effort to win her over. Later that day, Hinckley approached Reagan outside the Washington Hilton Hotel and opened fire. Reagan suffered a punctured lung but recovered relatively quickly. Brady's death in 2014 was attributed to his wounds but federal prosecutors said the following year they would not charge Hinckley with his murder.

Foster has refused to comment publicly on Hinckley since addressing it in 1981, and a publicist for the Academy Award-winning actress did not immediately respond to a request for comment on Wednesday.

The full 103-page opinion in US v. Hinckley is available at this link.

Some prior related posts:

July 27, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Spotlighting the travesty of how the Eleventh Circuit is handling Johnson claims

I highlighted in this post here last week the potent opinions by a number of Eleventh Circuit judges explaining why they think the Circuit's precendents for dealing with prisoner petitions based on the Supreme Court's landmark ruling in Johnson v. United States, 133 S. Ct. 2551 (2015), are so very wrong and unjust.  A helpful reader made sure that I did not miss this recent Bloomberg commentary on this topic authored by Noah Feldman headlined "This Is What 'Travesty of Justice' Looks Like."  Here are excerpts:

Call it Scalia’s revenge. In one of the last cases that he authored before he died in February, Justice Antonin Scalia convinced his colleagues to strike down a key clause of the Armed Career Criminal Act because it was unconstitutionally vague.  As a result, thousands of convicted felons are now asking courts to have their sentences reduced.

The legal rules for considering such post-conviction requests are tricky and technical.  But in most of the country, prisoners are getting another day in court to have their ACCA convictions reviewed in the light of the new legal principle.  In the Eleventh Circuit, which includes Alabama, Georgia and Florida, the process has gone badly awry [and] a judge on the circuit's court of appeals cried foul, calling for a fundamental change in how its handling these cases....

Before a prisoner can go back to the district court for what’s called a “second, successive” post-conviction petition, he or she needs special permission from a federal court of appeals.  The stakes are high for the prisoners.  In some cases, the difference might be between the 15-year minimum imposed on felons with three prior convictions, and a sentence of 10 years or less for fewer convictions.

Consequently, the U.S. Court of Appeals for the Eleventh Circuit has been immersed in the time-consuming process of figuring out who should be allowed a second chance to file a petition in District Court seeking review of their sentence.  It's studying presentence reports to ascertain whether any of the prior convictions should still count, and, if so, how that might change the petitioner's sentence.  Yet no other court of appeals appears to be engaging in this kind of case-by-case analysis. They’ve been approving the requests automatically and allowing a federal district court to sort out the details.

Judge Beverly Martin of the Eleventh Circuit issued an unusual and stirring opinion ... declaring that the process in her court wasn’t working.  Martin asserted that among the thousands of applications and hundreds of denials, her court has been making mistakes -- mistakes that, by their legal nature, can't be appealed. “A court of appeals is simply not equipped to construct a new basis for a prisoner’s old sentence in this way,” she wrote.

To make matters worse, the Eleventh Circuit gives itself 30 days to rule on each request.  The presentence report can be inadequate or misleading, and there are no attorneys involved to explain what it means.  And most prior convictions are under state law, which varies from place to place and have technical details that are hard for the court to determine without a lawyer’s help.

What's more, the Eleventh Circuit had rejected petitions for reconsideration before the Supreme Court said its Johnson ruling applied retroactively.

The upshot is that something very like a travesty of justice is happening in the Eleventh Circuit.  And as you know if you’re still reading this, the issue is sufficiently technical that it’s hard to draw attention to the problem.  But real people are spending potentially many extra years in prison on the basis of an unconstitutional law.  That’s wrong.  In the spirit of Justice Scalia, the Eleventh Circuit should change course and start allowing district courts to review post-Johnson ACCA petitions the way the other circuits do.

July 27, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

Tuesday, July 26, 2016

District Court explains reasons for disallowing penile plethysmograph and visual response testing for child pornography offender

A helpful reader altered me to a notable sentencing opinion handed down last week by District Judge John Kane in US v. Cheever, No. 15-cr-00031-JLK (D Colo July 18, 2016) (available here). The first part of the opinion provides a thoughtful account of the sentencing judge's accounting of application of the 3553(a) sentencing factors to defendant Shawn Cheever after his plea to a single count of possession of child pornography, but an "addendum" to the opinion is what makes it truly blog-worthy. In the addendum, Judge Kane explains why he is refusing to "authorize a treatment provider to require polygraph, plethysmograph (PPG) and visual reaction time measurements." His lengthy explanation merits reading in full, and here are a few of many interesting passages therein:

Proponents of using the penile plethysmograph correlate arousal data to deviant sexual behavior by assuming that individuals with a history of sexual offenses who respond to illicit sexual stimuli are likely to react in furtherance of their responses. There is no scientifically accepted data presented to justify this assumption, nor does it have any logical basis. Rather, just as with the polygraph (lie detector) machine, it is used as a tool of coercion by both law enforcement personnel and treatment providers.  The plethysmograph is used to obtain inculpatory admissions, the reliability of which is at best equivocal. The patient or suspect may believe he can manipulate the results — and with a modicum of sophistication or psychopathy, he may well be able to do so.  Or, the suspect or patient may succumb to the threat, overt or implied, that his refusal to submit to testing has negative implications that can result in further incarceration, withholding of privileges or being held back in the treatment or incarceration processes and therefore lie about his interests or past behavior.  Moreover, it is not fanciful speculation that false test results can be conveyed to the individual in order to reduce resistance and gain inculpatory admissions....

[A]dministering a penile plethysmograph test necessitates the person administering the test to be engaged in the possession, use and distribution of child pornography. There is no exception in the statute to exclude therapeutic purposes or intent from culpability. The violation is per se. It is paradoxical that the government would mandate individuals subject to supervised release to join an administrator of the test in conduct so vile that it landed him in prison in the first place. The statute criminalizing the possession, use and distribution of child pornography has no exceptions. Both the administrator and the subject are violating the statute.  Moreover, the well-established continuing damage inflicted on the child victims portrayed in the pornography derives from the fact that they are seen repeatedly by viewers and it makes not one shred of difference to the victims that the viewer is a pervert or a therapist....

Prohibiting courts, probation and parole officers and treatment facilitators and providers from using devices that fail tests of scientific validity is necessary, but a further comment about the line Judge Noonan describes so eloquently will perhaps provide a resolution to the underlying debility.  Judge Noonan evokes the task of Orwell's "Thought Police" — and using what is "discovered" as a basis for further punishment or superficial rehabilitation. Justice Cardozo in Palko v. Connecticut, 302 U.S. 319, 326-27 (1937) stated: "freedom of thought. . . is the matrix, the indispensable condition, of nearly every other form of freedom.  With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal."...

The established traditions of our law embrace the ancient common law principle that liberty should not be impinged or threatened for what a person thinks, but only for what a person does. The maxim cogitationis poenam nemo patitur (no one is punishable solely for his thoughts) was written long before the invention of the plethysmograph or other machines intended to probe the recesses of the mind....

Penile plethysmograph tests rely on the heavy assumption that stimuli arousal is strongly related to the potential for recidivism. Inferences by the courts about a person's potential for sexual offense based on his innermost sexual desires fail to acknowledge that arousal data is not an ineluctable precursor to deviant behavior.  This observation, a fortiori, illustrates the dangerous conflation of thought with behavior. Before administering the penile plethysmograph without questioning its obvious scientific shortcomings (not to mention its ethical implications), it is crucial that the courts, probation and parole officers and PPG evaluators recognize 1) the power of refrain; and 2) the difference between thought and action.  The presuppositionless assumption is that any "arousal level" occasioned by the exposure to child pornography stimuli is deviant because convicted sex offenders are unable to resist or subdue their impulses.  Urges, however, are not always overwhelming.  Otherwise, there would be no opportunity for moral decisions or even so-called enlightened self-interest decisions to be made in the crucible of an experience.

UPDATE:  Another helpful reader altered me that there is now this Denver Post article about the opinion in Cheever, which is headlined "Judge criticizes federal sentencing guidelines in pornography case: Kane said he would have given sex offender lesser sentence if permitted by law."

July 26, 2016 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (8)

"The Death Penalty and the Fifth Amendment"

The title of this post is the title of this essay authored by Joseph Blocker and just published online by the Northwestern Law Review. Here is part of the introduction: 

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”?  If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

The dueling opinions in Glossip v. Gross have brought renewed attention to the constitutionality of the death penalty. In a dissent joined by Justice Ginsburg, Justice Breyer identified “three fundamental constitutional defects” with the death penalty.... Justice Breyer’s dissent marked the first time that two members of the current Court have announced a belief that the death penalty is likely unconstitutional “in and of itself,” and the opinion has justifiably been treated as a significant development.

In a blistering concurrence, Justice Scalia (joined by Justice Thomas) wrote that the dissent was full of “gobbledy-gook,” and that “not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.” Justice Scalia argued that the Fifth Amendment afforded a textual basis for the capital punishment’s continued constitutionality....   Announcing his concurrence from the bench, Justice Scalia made the point even more strongly, saying that “the death penalty is approved by the Constitution.” He and many others have made some version of this point...

The Fifth Amendment contains prohibitions, not powers, and there is no reason to suppose that it somehow nullifies other constitutional prohibitions — most importantly, the ban on cruel and unusual punishment.  The real target of the Fifth Amendment Argument can only be the Court’s longstanding Eighth Amendment doctrine, which is not limited to the punishments considered cruel and unusual at the time of the Constitution’s framing. Unless and until that doctrine changes, the Argument itself carries no weight.

To be clear, the inverse argument would be equally faulty. The weakness of the Fifth Amendment Argument does not mean that the death penalty is unconstitutional, let alone “categorically” so, only that the “constitutional defects” Justice Breyer identifies cannot be dismissed out of hand.  Glossip, along with other developments in law and practice, have made the continuing constitutionality of capital punishment a pressing question. That question should be answered without the distraction of the Fifth Amendment.

July 26, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (19)

Saturday, July 23, 2016

Split Virginia Supreme Court deems unconstitutional mass effort by Gov to restore felon voting rights

As reported in this local article, the "Supreme Court of Virginia on Friday struck down Gov. Terry McAuliffe’s executive order restoring voting rights to 206,000 felons, dealing a severe blow to what the governor has touted as one of his proudest achievements in office." Here is more about the ruling:

In a 4-3 ruling, the court declared McAuliffe’s order unconstitutional, saying it amounts to a unilateral rewrite and suspension of the state’s policy of lifetime disenfranchisement for felons. The court ordered the Virginia Department of Elections to “cancel the registration of all felons who have been invalidly registered” under McAuliffe’s April 22 executive order and subsequent orders.

As of this week, 11,662 felons had registered to vote under McAuliffe’s orders. The court gave a cancellation deadline of Aug. 25.

McAuliffe, a Democrat, took the sweeping action in April, saying he was doing away with an unusually restrictive voting policy that has a disproportionate impact on African-Americans. In a legal challenge, Republican leaders argued McAuliffe overstepped his power by issuing a blanket restoration order for violent and nonviolent felons with no case-by-case review.

The court majority found that McAuliffe did indeed overstep his authority. “Never before have any of the prior 71 Virginia governors issued a clemency order of any kind — including pardons, reprieves, commutations, and restoration orders — to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request,” Chief Justice Donald W. Lemons wrote in the majority opinion. “To be sure, no governor of this commonwealth, until now, has even suggested that such a power exists. And the only governors who have seriously considered the question concluded that no such power exists.”

In response, McAuliffe said he will “expeditiously” sign roughly 13,000 individual rights restoration orders for people who have already registered to vote. He said he’ll continue until rights are restored for all 200,000 people affected by the original order.

“Once again, the Virginia Supreme Court has placed Virginia as an outlier in the struggle for civil and human rights,” McAuliffe said in a written statement. “It is a disgrace that the Republican leadership of Virginia would file a lawsuit to deny more than 200,000 of their own citizens the right to vote. And I cannot accept that this overtly political action could succeed in suppressing the voices of many thousands of men and women who had rejoiced with their families earlier this year when their rights were restored.”...

Republicans have attacked the order as a political power grab, accusing McAuliffe of trying to help his friend and presumptive Democratic presidential nominee Hillary Clinton win a swing state by adding thousands of Democratic-leaning voters to the polls. GOP leaders called the court’s ruling a victory for the rule of law. “He spent 90 days bragging about this being the high point of his governorship,” said Del. Robert B. Bell, R-Albemarle, who’s running for attorney general in 2017. “And the court made it very clear that he acted unconstitutionally.”

In a joint statement, House Speaker William J. Howell, R-Stafford, and Thomas K. Norment Jr., R-James City, said: “Our nation was founded on the principles of limited government and separation of powers. Those principles have once again withstood assault from the executive branch. This opinion is a sweeping rebuke of the governor’s unprecedented assertion of executive authority.” Howell and Norment were two of the plaintiffs behind the legal challenge. They argued that their future election bids could be tainted by participation of invalid voters.

Justices Cleo E. Powell and S. Bernard Goodwyn — the court’s two African-Americans — dissented from the ruling, arguing the plaintiffs lacked standing to bring the case. Justice William C. Mims also dissented over the issue of standing, saying the court lacked sufficient evidence — most notably the governor’s list of the 206,000 felons affected — to fully consider the order’s impact....

Republicans argued McAuliffe lacks the authority to issue blanket restorations, but Attorney General Mark R. Herring and top constitutional scholar A.E. Dick Howard said McAuliffe was on firm legal ground. “The majority’s opinion is terribly disappointing, especially for the thousands of Virginians who will be thrown off the voter rolls after experiencing the joy, excitement, and fulfillment of getting back their voice and their vote,” Herring said in an emailed statement.

McAuliffe’s Democratic allies blasted Republicans for celebrating a legal victory that will block thousands of Virginians from voting. “It’s a sad and disappointing day when the Virginia Supreme Court bows to political pressure from right-wing ideologues who would rather bar citizens from the polls than compete for every vote,” said Anna Scholl, executive director of Progress Virginia. Scholl said the “deciding vote” was Justice Stephen R. McCullough, whom Republicans elected to the Supreme Court this year after refusing to approve McAuliffe’s interim pick, former Justice Jane Marum Roush, for a full term. McCullough sided with the majority....

The legal rebuke comes at an awkward time for McAuliffe, who is scheduled to speak at next week’s Democratic National Convention celebrating Clinton and her newly selected running mate, U.S. Sen. Tim Kaine, D-Va. Clinton praised McAuliffe after the order in April. When he was Virginia’s governor, Kaine declined to issue a blanket rights restoration order like the one pursued by McAuliffe, despite pressure from activists. The Supreme Court ruling referenced Kaine’s position, saying Kaine “correctly understood” he did not have blanket restoration power.

The full opinion from the split Virginia Supreme Court is available at this link.

July 23, 2016 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Michigan prosecutor wants 71-year-old "juve lifer" to still have no chance of parole

This local AP article, headlined "Prosecutor: No sentencing break for Michigan's oldest juvenile lifer," reports on the disinclination of a Michigan prosecutor to be open to considering even the possibility of parole for an elderly prisoner given LWOP more than a half-century ago. Here are the details:

Oakland County prosecutor Jessica Cooper said Friday she'll seek another no-parole sentence for a 71-year-old man who is the oldest so-called juvenile lifer in the Michigan prison system. Sheldry Topp has been in prison for nearly 54 years. He was 17 in 1962 when he ran away from a state hospital, broke into an Oakland County home and fatally stabbed the owner.

Life sentences with no chance for parole are no longer automatic for anyone under 18. Juvenile lifers have a right to new hearings as a result of a U.S. Supreme Court decision. Judges now have discretion and can consider an offender's childhood, education and a variety of other factors.

Prosecutors across Michigan are filing their sentencing proposals this week in more than 350 cases.

The prosecutor said she'll seek no-parole sentences again for 44 people who are in prison, including Topp. She declined to explain her position in Topp's case during an interview with The Associated Press, referring a reporter to a court filing, which wasn't available after business hours.

"When we talk about doing due diligence, we did an incredible amount of due diligence in these cases," said Cooper, a former judge. "The cases that we've been reviewing are not the kids who were at the wrong place at the wrong time. We're talking about stabbings, shootings and strangulations. ... I'm shocked."

Topp, who turns 72 in September, is in a prison in Muskegon. In a recent court filing, attorney Deborah LaBelle said he was in a hospital with heart problems. She couldn't be reached for comment Friday. In 1987 and 2007, the state parole board recommended that Topp's sentence be reduced, but governors declined.

Meanwhile, in Wayne County — the state's largest — prosecutor Kym Worthy said she would seek no-parole sentences again for at least 60 prisoners who were convicted of murder as teens.

Worthy said she'll ask that 81 people be given a certain number of years in prison instead of a no-parole sentence. That could lead to freedom for some who already have been locked up for decades.

July 23, 2016 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Thursday, July 21, 2016

"An Overlooked Key to Reversing Mass Incarceration: Reforming the Law to Reduce Prosecutorial Power in Plea Bargaining"

The title of this post is the title of this paper recently posted to SSRN and authored by Cynthia Alkon. Here is the abstract:

The need to “do something” about mass incarceration is now widely recognized.  When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators.  Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.”  These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates.  However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial behavior as stand-alone issues.  These reform suggestions do not consider the fact that ninety-four to ninety-seven percent of criminal cases are resolved through plea bargains and how the use of this process influences incarceration rates.  Prosecutors hold extraordinary power in the criminal justice system. They not only decide what cases get filed, they also decide what charges and enhancements are added, and whether there will be a plea offer.  The structure of our criminal justice system, at both the state and federal level, strengthens prosecutorial power and create a plea bargaining environment with extreme power imbalances.  Prosecutors use this power to put pressure on defendants to accept plea deals, which contribute to the high incarceration rates in the United States.  Therefore, any reform intended to make a meaningful reduction in incarceration rates should recognize the power that prosecutors hold and include reform aimed at changing this underlying structure.

As is well documented, the United States has high incarceration rates and imprisons more people than any nation in the world.  African American and Latino communities suffer even higher incarceration rates.  Our incarceration rates increased dramatically in the 1980s and into the 1990s.  Some commentators identify the “war on drugs” as a major contributor to increasing incarceration rates during this period.  Others suggest that the increase is due to a number of factors including changes in criminal codes that increased potential penalties for crimes across the board, not only for drug crimes.  One scholar, John F. Pfaff, concludes that the single biggest reason for increased incarceration rates since 1990 is not an increase in arrests, or harsher sentencing, or the drug war, but instead is an increase in the percentage of felony filings per arrest.  Pfaff concludes that the reason there are more filings is because prosecutors are filing a higher percentage of cases and therefore prosecutors are the predominate reason for mass incarceration.

This article will begin by briefly describing how plea bargaining works and the often coercive atmosphere of plea bargaining that contributes to mass incarceration.  This article will then discuss Pfaff’s conclusions, based on his empirical studies, that prosecutors are the key reason for mass incarceration.  Building on Pfaff’s conclusions on the key role prosecutors play in mass incarceration, this article will discuss how the current structure of both state and federal codes reinforce prosecutorial power, particularly in the plea bargaining process.  This article will then discuss two proposals for legislative reform that could decrease the coercive atmosphere of plea bargaining.  First, this article will recommend revising how crimes are defined, reducing the number of crimes that can be charged as both misdemeanors and felonies and reducing some felonies to misdemeanors. Second, this article will recommend reducing potential punishment ranges by eliminating mandatory minimums for most crimes and for enhancements.  Legislative change alone will not reverse mass incarceration, but targeted legislative reform could help to change the overly coercive atmosphere of plea bargaining.  This effort can help to change the prosecutorial culture that surrounds plea bargaining and contribute to reducing incarceration rates.

July 21, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Wednesday, July 20, 2016

"How Judges Think about Racial Disparities: Situational Decision-Making in the Criminal Justice System"

The title of this post is the title of this intriguing new article authored by Matthew Clair and Alix Winter from the jounral Criminology and available at this link. Here is the abstract:

Researchers have theorized how judges’ decision-making may result in the disproportionate presence of Blacks and Latinos in the criminal justice system.  Yet, we have little evidence about how judges make sense of these disparities and what, if anything, they do to address them.  By drawing on 59 interviews with state judges in a Northeastern state, we describe, and trace the implications of, judges’ understandings of racial disparities at arraignment, plea hearings, jury selection, and sentencing.

Most judges in our sample attribute disparities, in part, to differential treatment by themselves and/or other criminal justice officials, whereas some judges attribute disparities only to the disparate impact of poverty and differences in offending rates.  To address disparities, judges report employing two categories of strategies: noninterventionist and interventionist.  Noninterventionist strategies concern only a judge’s own differential treatment, whereas interventionist strategies concern other actors’ possible differential treatment, as well as the disparate impact of poverty and facially neutral laws.

We reveal how the use of noninterventionist strategies by most judges unintentionally reproduces disparities. Through our examination of judges’ understandings of racial disparities throughout the court process, we enhance understandings of American racial inequality and theorize a situational approach to decision-making in organizational contexts.

July 20, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Tuesday, July 19, 2016

Federal judge refuses to accept plea of LA County Sheriff Lee Baca for obstruction because of inadequacy of maximum sentence of six months in

As reported in this lengthy Los Angeles Times piece, headlined "Judge throws out ex-L.A. County Sheriff Lee Baca's plea deal, saying six months in prison not enough," a federal judge decided that a high-profile federal defendant had cut too sweet a plea deal to resolve charges of obstruction of justice.  Here are the interesting details concerning a rare (but not unprecedented) district court decision:

A federal judge on Monday threw out a plea agreement that would have given former Los Angeles County Sheriff Lee Baca a maximum of six months in prison, saying the sentence was too lenient considering Baca’s role in obstructing an FBI investigation into the county jails. Addressing a downtown courtroom packed with Baca’s supporters, U.S. District Court Judge Percy Anderson said the deal “would trivialize the seriousness of the offenses … the need for a just punishment [and] the need to deter others.”

Baca, 74, had pleaded guilty in February to a single charge of lying to federal investigators. But the former sheriff’s involvement in trying to derail the investigation reached further than that, Anderson said. At stake was what the investigators were trying to expose, Anderson said: an “us-versus-them” culture in which deputies covered up for one another and responded to inmates with enough violence to send them to the hospital.

Six months in prison for the man who ran the Sheriff’s Department “would not address the gross abuse of the public’s trust … including the need to restore the public’s trust in law enforcement and the criminal justice system,” Anderson said.

The judge said he would allow Baca to withdraw his guilty plea, setting a new hearing date for Aug. 1. The maximum sentence for the false statement charge is five years -- the same amount of time that Baca’s former No. 2, Paul Tanaka, received last month after going to trial in a related obstruction-of-justice case. Seven lower-ranking sheriff’s officials who have been convicted and sentenced in the obstruction case received a year and a half to more than three years in prison.

Baca’s plea agreement had called for a sentence ranging from probation to six months in prison. Prosecutors have said they agreed to the deal in part because of Baca’s willingness to plead guilty. Baca’s attorney, Michael Zweiback, argued that the former sheriff should not serve any prison time because he is in the early stages of Alzheimer’s disease.

Baca must now choose among several unappealing options. He could go ahead with the sentencing and accept whatever punishment Anderson has in mind. He could withdraw his guilty plea and go to trial, taking his chances with whatever charges the government might decide to bring. He could negotiate a new deal with federal prosecutors for a longer sentence that the judge would find more acceptable.

After Monday’s hearing, Zweiback said he was disappointed with the judge’s decision but hoped to resume talks with prosecutors. He said that if he cannot reach an agreement that includes a specific sentence, rather than an open-ended guilty plea, he will not leave his client’s fate in Anderson's hands. “At that point, we might as well take our chances at trial,” Zweiback said.

Baca’s Alzheimer’s could be a factor if the case heads to trial and his ability to understand the proceedings deteriorates. The trial could be put on hold if he is declared mentally incompetent. “If the government believes it’s two years in ... getting to trial and sentencing him, that could leave Mr. Baca in very bad shape,” Zweiback said....

Legal experts said Anderson's move was unusual but not unexpected, considering his law-and-order reputation and comments he has made during sentencing in the related cases. “We already knew the defendant was facing a federal judge who believed these kinds of acts were as serious as they come,” said Miriam Krinsky, a former federal prosecutor who was the executive director of a county commission that investigated brutality by jail deputies and who served as a top aide to Baca’s successor, Jim McDonnell, during his first year in office....

Laurie Levenson, a Loyola Law School professor and former federal prosecutor, said Anderson was not likely to be “swayed by sympathy or the emotional aspects of the case.” She said he was likely to be especially unforgiving of law enforcement officials who did not fulfill their duties. “He views this type of abuse of trust more seriously, notwithstanding Baca’s health concerns,” Levenson said.

Federal sentencing law provides that people who are higher up in an organization -- mob bosses, for example — are more culpable than lower-level members, said Joseph Akrotirianakis, another former federal prosecutor now in private practice. “Today’s events are not entirely surprising in light of the sentence that Mr. Tanaka received,” Akrotirianakis said. “That was not a fact known to the government at the time that Baca entered into his plea.”...

Brian Moriguchi, head of the union that represents Sheriff’s Department supervisors, said Baca is responsible for the actions of his subordinates, especially Tanaka, and should receive more than six months considering the sentences the others will serve.

Many sheriff's deputies have been closely watching the criminal prosecutions to see if the punishments for former bosses would approach those of lower-ranking employees following their orders. “It’s not only widespread in the department, it’s widespread in society — the feeling that those who have power seem to be exempt from the same rules as everyone else,” Moriguchi said.

July 19, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Perhaps previewing coming SCOTUS work in Beckles, four Eleventh Circuit judges make case against circuit's refusal to apply Johnson to guidelines

In this post after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career offender guideline of the US Sentencing Guidelines.  Notably, the Justice Department has consistently conceded Johnson-based constitutional problems with that career offender guideline, which in turn has led to most circuit courts finding Johnson-based constitutional problems with sentences based on that guideline. 

But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), squarely addressed this issue and ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  I considered this ruling suspect, but an amicus brief I helped put together urging en banc review in Matchett did not led to its reconsideration.  As blogged here last month, though, we know have the ultimate judicial authority on this issue poised to weigh in: the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whether Johnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.

For a variety of reasons, I am expecting that SCOTUS will ultimately agree with the majority of circuits that Johnson's holding applies to the career offender guidelines and thereby reject the Eleventh Circuit's Matchett precedent.  What I did not expect was that a number of Eleventh Circuit judges would set forth, in essence, some amicus briefing to SCOTUS in order to explain in detail why they think their own circuit's work in Matchett was wrong.  But that is what I see via a series of recent concurring opinions in In Re: William Hunt and In re: Charles Therion Clayton, cases in which a panel felt duty-bound to reject habeas applications due to the Matchett precedent but then followed up with separate opinions by Circuit Judges Wilson and (Jill) Pryor and Rosenbaum and Martin all explaining why they think Matchett is so wrong and so troublesome as we await a SCOTUS ruling in Beckles.

If you have read this far into this post, you probably have some interest in the application of Johnson and its impact on the career offender guidelines, which in turns means you ought to find the time to read all the judicial thoughts shared in Hunt and Therion.  I know that is my plan for this evening, and to whet everyone's appetite I will close this post by quoting the closing paragraph authored by Judge Pryor in these cases:

If the Supreme Court decides in Beckles that the residual clause in the career offender guideline is void for vagueness, there may be new hope for the scores of inmates who have tried to obtain relief since Johnson, only to be turned away by this Court based upon Matchett.  I hope next time around we will avoid the mistakes I have identified. And I hope that, rather than being behind the march of justice, we, as our nation’s designated guardians, will be at the front.

July 19, 2016 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Nearly four years(!?!) in federal prison for MLB scout who hacked into rival team's research and notes

As reported in this local article, headlined "Former Cardinals scouting director sentenced to 46 months for hacking Astros database," a notable defendant got a significant federal prison sentence for some illegal corportate espionage. Here are some of the details:

The former St. Louis Cardinals scouting director who admitted he hacked accounts of the Houston Astros to gain insight into their operations was sentenced Monday afternoon to 46 months in prison.

Chris Correa pleaded guilty in January to five counts of unauthorized access to a protected computer. As part of his plea, Correa admitted to using the accounts of three Astros employees to view scouting reports, amateur player evaluations, notes on trade discussions and proposed bonuses for draft picks.  The information he accessed was given an estimated value of $1.7 million by the U.S. Attorney’s office.

Correa, 36, also admitted taking measures to conceal his identity. The sentence includes two years of supervised release and restitution payment of $279,038.65.  He will remain free until he is to report to prison, in two to six weeks....

During his guilty plea six months ago, Correa contended he hacked into the Astros accounts to see if former Cardinals employees had taken proprietary data or statistical models to use in their new positions with the Astros. Correa told prosecutors he found evidence that it did occur, U.S. Attorney Kenneth Magidson told the Post-Dispatch at that time....

Giles Kibbe, general counsel for the Astros, said after the sentencing that Correa accessed the Houston team’s database 60 times on 35 different days. “I don’t know what he saw or thought he saw,” Kibbe said, adding that what was clear from listening to U.S. District Judge Lynn N. Hughes during the sentencing is this: “The Astros were victims in this case.”...

Houston and its general manager, Jeff Luhnow, who began his baseball career with the Cardinals more than a decade ago, have repeatedly denied that Luhnow or any other former Cardinals employees brought information to the Astros. “The Astros refute Mr. Correa’s statement that our database contained any information that was proprietary to the St. Louis Cardinals,” the team said in a statement in January. Along with the U.S. attorney’s investigation, in which no other member of the Cardinals’ organizations was charged, the team completed an internal investigation; its outcome was Correa’s dismissal a year ago....

Correa read a four-minute statement to the judge before Hughes handed down his sentence. “I behaved shamefully,” Correa said, in apologizing to the Astros. “The whole episode represents the worst thing I’ve ever done by far.”

As he continued reading, offering an apology to his family with the promise to “regain your trust,” Hughes stopped Correa, asking him to turn around and speak directly to family members attending the hearing. Correa did so, his voice breaking as he repeated his apology. Correa said that because of his actions, he lost his career and his house, and he will work with his wife to rebuild “a quiet life of integrity.”

Hughes chastised Correa several times for his actions, comparing them to middle-school behavior. The judge used as an example a teacher asking Correa if he threw the eraser to which Correa would justify the action by saying: “Bobby did, too!”

“I hope it didn’t work then. It’s not going to work now,” Hughes said. The judge likened Correa’s hacking actions to altering a check by adding extra zeroes “and wiping out someone’s bank account.” Hughes also disclosed in court that Correa had been using prescription drugs without a prescription since the hacking charges, and that he could also have been prosecuted for that crime.

Hughes noted that Correa had taken college classes in ethics, asking: “At any time did you think hacking the Astros’ computers and using other people’s passwords was ethical?”

“No, your honor,” Correa said. Correa left the courthouse without comment, climbing into the passenger seat of a white SUV that was quickly driven away....

As part of his plea in January, Correa admitted to illicitly accessing Houston’s database through three accounts from at least March 2013 to the end of June 2014. He began by accessing the email account of one Astros employee who used to work for the Cardinals, referred to in the documents as “Victim A.” Although never mentioned by name in the documents, two of the former employees being described are believed to be Luhnow and Sig Mejdal. Both were key architects in the early days of the Cardinals’ analytic departments, and both are now baseball operations execs in Houston.

Correa took advantage of the fact that “Victim A” had used a password for his Astros email that was similar to the one he used with the Cardinals. He had gained the password when “Victim A” turned in his Cardinals laptop before leaving the team. Correa was able to access the accounts of two other Houston employees and through them see information in a database nicknamed “Ground Control.” On March 24, 2013, Correa viewed an Excel file of every amateur player eligible for the draft as well as the Astros’ internal evaluations and the scouts’ proposed bonuses to offer the players. He also looked at the Astros’ evaluations of Cardinals’ prospects.

That June, during the draft, Correa entered Ground Control and filtered the Astros’ information on players not yet drafted. He also looked at specific pages for two players, neither of whom the Cardinals drafted.

During that visit he looked at Houston’s scouting information for three of the eight players the Cardinals’ selected the previous day in rounds three through 10. At baseball’s trade deadline, July 31, Correa peered into Houston’s notes on trade discussions. In March 2014, he again entered the database and looked at 118 pages of what court documents called “confidential information.”

Cardinals general manager John Mozeliak and other team officials have stated they did not know about the breaches until investigators alerted them in early 2015.

I have reprinted the details of this "hacker's crime" because I am struggling to see what aggravating factors justified a nearly four-year prison sentence for a white-collar offenders who would appear to present no obvious risk to public safety and who has admitted his misdeeds and seems to show genuine remorse for his computer crimes.  I sumrise from the press description here that the the defendant's federal sentencing guidelines range was driven up significantly by the U.S. Attorney's determination that the "estimated value" of corporate information accessed here was $1.7 million.   But the fact that the defendant was ordered to pay less than $300K in restitution suggest that the actual harm to the Cardinals was far less than the economic number that appears to have driven the defendant's sentence up so much under the applicable sentencing guidelines.

Because I have not done a careful study of lots of recent computer crime cases, I am not sufficiently informed about whether this particular defendant's crime was distinctly bad or whether his sentence is distinctly severe.  But I do know that modern problems in the US with mass incarceration is aggravated when we now have persons who pose no threat to public safety and who commit crimes that seem to have a relatively small impact on a huge rich company getting sent away to federal prison for a really long period of time.

July 19, 2016 in Examples of "over-punishment", Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (30)