Tuesday, July 18, 2017

"Under the Cloak of Brain Science: Risk Assessments, Parole, and the Powerful Guise of Objectivity"

The title of this post is the title of this notable note by Jeremy Isard that was brought to my attention by a helpful reader. Here is the abstract:

This Note examines the adoption of two psychological risk assessment protocols used on “lifers” by the California Board of Parole Hearings in preparation for parole suitability hearings.  Probation and parole agencies employ risk assessment protocols across state and federal jurisdictions to measure the likelihood that an individual will pose a danger to society if released from prison.  By examining the adoption and recent reformulation of risk assessment protocols in California, this Note considers some of the myriad demands that courts and administrative agencies place on brain science.  Applying the California parole process as a parable of such pressures, this Note argues that brain science has a unique capacity to supersede legal inquiry itself, and thus should only be used in legal and administrative settings with extreme caution.  

July 18, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, July 17, 2017

In latest speech, AG Sessions advocates for more gun and prescription drug prosecutions and more asset forfeiture

Attorney General Sessions gave another notable speech today, and this one was delivered to the National District Attorneys Association.  Regular readers are familiar with the themes AG Sessions has been stressing of late, but these excerpts highlight what struck me as some new parts to what the AG is talking up:

We have a multi-front battle in front of us right now: an increase in violent crime, a rise in vicious gangs, an opioid epidemic, threats from terrorism, and human traffickers, combined with a culture in which family and discipline seems to be eroding further.

From the early 1990s until just a few years ago, the crime rate steadily came down across the country. But violent crime is rising.  The murder rate, for example, has surged nearly 11 percent nationwide in just one year — the largest increase since 1968.  Per capita homicide rates are up in 27 of our 35 largest cities....

These numbers are deeply troubling — and especially since they represent a sharp reversal of decades of progress. My best judgment is that this rise is not an aberration or a blip.  We must take these developments seriously and consider carefully what can be done about them.  Yielding to the trend is not an option for America and certainly not to us....

We must encourage proven police techniques like community-based, proactive policing and “broken windows” — policies that are lawful and proven to work. Better training, better morale, professional excellence are goals of yours. My goal is to help you be effective and never to make your work more difficult. I am asking our U.S. Attorneys to be leaders in this approach. In the long run, there is nothing we can do that is more impactful....

I want to see a substantial increase in gun crime prosecutions. I believe, as we partner together and hammer criminals who carry firearms during crimes or criminals that possess firearms after being convicted of a felony, the effect will be to reduce violent crime.

Next, the DEA reports that 80 percent of heroin addicts started with abuse of prescription drugs. As you know, more than 50,000 died of drug overdoses in 2015. Preliminary numbers indicate 2016 may hit 60,000. We have never seen numbers like this. This nation is prescribing and consuming far too many painkillers. This must end.

Last week, we announced the indictments of over 400 defendants as part of the annual Health Care Fraud Take Down. 120 of those involved opioid-related drug fraud and nearly 50 were doctors. Some of these frauds involved massive amounts of drugs. But I’m convinced this is a winnable war. We can significantly reduce this abuse, which includes the big drug companies as well.

DEA is making these cases a priority. They can make visits to physician and pharmacies and do checks on those who prescribe or sell these drugs. They are reviewing and identifying physician and pharmacy outliers that can help you narrow the search for crooks.

I would urge you to examine every case that involves an arrest of an individual illegally possessing prescription drugs. Make a condition of any plea bargain that the defendant tell where he or she got the drugs. Together, let’s get after these bad actors....

In addition, we hope to issue this week a new directive on asset forfeiture — especially for drug traffickers.  With care and professionalism, we plan to develop policies to increase forfeitures.  No criminal should be allowed to keep the proceeds of their crime.  Adoptive forfeitures are appropriate as is sharing with our partners....

As prosecutors, we have a difficult job, but our efforts at the federal, state, and local levels have a real impact. With every conviction we secure, we make our communities safer.

July 17, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

PBS Frontline and the New York Times explore "Life on Parole"

The PBS series Frontline has this new documentary titled "Life on Parole," which will premiere at 10pm on Tuesday July 18 on most PBS stations (and the full film is available online now). Here is how the PBS site briefly describes the documentary:

With unique access, go inside an effort in Connecticut to change the way parole works and reduce the number of people returning to prison.  In collaboration with The New York Times, the film follows four former prisoners as they navigate the challenges of their first year on parole.

The New York Times series in this collaboration is titled "On the Outside," and it is described this way:

We followed 10 people after they were released from prison in a partnership with the PBS series "Frontline." These articles and videos look at the challenges that sent six of them back behind bars.

July 17, 2017 in Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (6)

Sunday, July 16, 2017

"Ministers of Justice and Mass Incarceration"

The title of this post is the title of this new paper available via SSRN authored by Lissa Griffin and Ellen Yaroshefsky. Here is the abstract:

Over the past few years, scholars, legislators, and politicians have come to recognize that our current state of “mass incarceration” is the result of serious dysfunction in our criminal justice system.  As a consequence, there has been significant attention to the causes of mass incarceration.  These include the war on drugs and political decisions based on a “law and order” perspective.  Congressional and state legislative enactments increased the financing of the expansion of police powers and provided for severely punitive sentencing statutes, thereby giving prosecutors uniquely powerful weapons in securing guilty pleas.  All of this occurred as crime rates dropped.

Where were the lawyers when our criminal justice system was evolving into a system of mass incarceration? Surprisingly, in looking for the causes and cures for the mass incarceration state, very little, if any, attention has been paid to the role of the most powerful actor in the criminal justice system: the prosecutor.  It is the prosecutor who exercises virtually unreviewable discretion in seeking charges, determining bail, negotiating a resolution, and fixing the sentence.  Now, however, there is data that identifies aggressive prosecutorial charging practices as the major cause of the explosion in our prison population.  That is, over the past twenty years prosecutors have brought felony charges in more cases than ever before, resulting in a dramatic increase in prison admissions.  If prosecutorial charging practices have been a major cause of the universally recognized mass incarceration problem, what should be done? How does the role of the prosecutor need to change to prevent a continuation, or a worsening, of our mass incarceration problem?

This Article examines the recognized role of the prosecutor as a “minister of justice,” and makes a range of suggested changes to the prosecution function.  These include re-calibrating the minister of justice and advocacy role balance in recognition of the current mass incarceration crisis; enacting measures to ensure independence from law enforcement in the charging function; collecting currently non-existent, objective data that breaks down and memorializes available information on each decision to charge as well as its consequences; and drafting written charging procedures and policies based on the collection of that data-driven information.

July 16, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

DAG Rosenstein makes the case for his boss's new charging and sentencing directive to federal prosecutors

Deputy Attorney General Rod Rosenstein authored this notable op-ed appearing in the San Francisco Chronicle to explain and justify Attorney General Sessions' new memo to federal prosecutors concerning charging and  sentencing.  The piece was given the headline "Attorney General Jeff Sessions is serious about reducing crime," and here is its full text:

U.S. Attorney General Jeff Sessions recently revised the federal criminal charging policy. When federal prosecutors exercise their discretion to prosecute a case, they generally “should charge and pursue the most serious, readily provable offense” established by the evidence, he wrote in a May 10 memo. Prosecutors must use “good judgment” in determining “whether an exception may be justified” by the particular facts of the case. The Sessions memo reinstitutes a policy that existed for more than three decades. It was first implemented by President Jimmy Carter’s attorney general, Benjamin Civiletti.

From 2013 to 2017, however, the U.S. Department of Justice protected some criminals from mandatory minimum sentence laws enacted by Congress. During that time, unless cases satisfied criteria set by the attorney general, prosecutors were required to understate the quantity of drugs distributed by dealers and refrain from seeking sentence enhancements for repeat offenders. Beneficiaries of that policy were not obligated to accept responsibility or cooperate with authorities.

After that policy was adopted, the total number of drug dealers charged annually by federal prosecutors fell from nearly 30,000 — where it had stood for many years — to just 22,000. Meanwhile, drug-related violence has surged. There has been a significant spike in murders, including an 11 percent increase in 2015 alone.

Drug overdose deaths also have accelerated at a frightening and unprecedented pace. The annual toll of Americans killed by drug overdoses stood near 36,450 in 2008, with some 20,000 overdose deaths involving prescription drugs, according to the Centers for Disease Control and Prevention. Estimates show that the 2016 total was on the order of 60,000, making drug overdose the leading cause of death of Americans under age 50.

Officials in many cities are calling on federal prosecutors for help, and tough sentences are one of federal law enforcement’s most important tools. Used wisely, federal charges with stiff penalties enable U.S. attorneys to secure the cooperation of gang members, remove repeat offenders from the community and deter other criminals from taking their places.

In order to dismantle drug gangs that foment violence, federal authorities often pursue readily provable charges of drug distribution and conspiracy that carry stiff penalties. Lengthy sentences also yield collateral benefits. Many drug defendants have information about other criminals responsible for shootings and killings. The prospect of a substantial sentence reduction persuades many criminals to disregard the “no snitching” culture and help police catch other violent offenders.

Minor drug offenders rarely face federal prosecution, and offenders without serious criminal records usually can avoid mandatory penalties by truthfully identifying their co-conspirators. The Sessions policy is serious about crime. It does not aim to fill prisons with low-level drug offenders. It empowers prosecutors to help save lives.

Prior recent related posts: 

July 16, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Saturday, July 15, 2017

Notable high-profile functionality of the dysfunctional Pennsylvania death penalty

Long-time readers surely recall some (of many) prior posts, including ones here and here, highlighting some (of many)  dysfunctional realities of the death penalty in Pennsylvania.  But this local article about horrible multiple murders getting national attention highlights how even a dysfunctional death penalty can still serve a significant function.  The article is headlined "Legal experts praise Bucks deal that led to murder confession," and here are excerpts:

The deal that spared Cosmo DiNardo the death penalty in exchange for a murder confession in a case that’s captivated the region and drawn national attention was lauded Friday by legal experts, who said the agreement was a swift and shrewd way to bring the gruesome case nearer to a close.

Cosmo DiNardo, 20, confessed to participating in the killings of four men. DiNardo also agreed to tell investigators where to find the bodies and lead them to an accomplice.  In exchange for the cooperation, his defense lawyer Paul Lang said, prosecutors agreed not to seek the death penalty.

DiNardo’s four victims, young men from Bucks and Montgomery Counties, disappeared last week.  Their families’ fears were confirmed when human remains were discovered in a 12-foot grave on a farm owned by DiNardo’s parents.  On Friday, DiNardo was charged with murder and related offenses.  Authorities also arrested his cousin and alleged accomplice, Sean Kratz, 20, on the same charges.  And also Friday, they discovered the body of one of the missing men, Jimi Taro Patrick, 19, on the farm.  The remains of Dean A. Finocchiaro, 19; Thomas C. Meo, 21; and Mark R. Sturgis, 22, had been discovered elsewhere on the sprawling property Wednesday.

Bucks County District Attorney Matthew D. Weintraub on Friday credited DiNardo’s confession with implicating Kratz and leading investigators to Patrick’s body, which had been buried separately from the others.  “I’d like to think he wanted to help us get these boys home,” he said, describing the cooperation agreement with DiNardo as critical to solving the case.

In interviews Friday, several legal experts agreed.  “It was absolutely the right thing to do,” Jack McMahon, a former prosecutor who is now a prominent defense lawyer, said of the deal.  “I think both sides did the right thing.”  With evidence mounting in a case this serious, McMahon said, “the defense probably realized that the evidence against his client was pretty overwhelming.  He had only one chip to play, and he used it to leverage for a life sentence.”

Marc Bookman, a former public defender who is director of the Atlantic Center for Capital Representation in Center City, said the agreement had clear benefits for DiNardo and for prosecutors.  “In a case like this, there’s a give and take,” he said.  For the defense, Bookman said, “you’ve got four bodies.  Any defense lawyer is thinking, ‘There’s no real defense to the killing of four people.’ There are defenses to a murder case, but it’s difficult to conceive of a legitimate defense to four bodies buried 12 feet in the ground.”

The severity of the crime made it a clear candidate for a death penalty prosecution, legal experts agreed, giving the prosecution leverage and the defense reason to seek a deal.  “The defense is giving the prosecutor something compelling,” Bookman said.  “He said he would direct them to where the bodies are. You’ve got four grieving families who desperately want closure, however sad that closure might be.  And he’s asking for something in exchange.”

For prosecutors, the threat of life on death row — if not actual execution in a state with a moratorium on the death penalty — upon conviction proved persuasive.  “It’s good to have the death penalty for cases like this — whether you agree with it or not,” said former Philadelphia District Attorney Lynne M. Abraham, whose tenure was marked by an aggressive willingness to pursue the death penalty in murder cases.  “The prosecutor had a bargaining chip, and the defense attorney used it to bargain away [the possibility of] being on death row for 25 to 40 years.”...

The deal DiNardo’s lawyers reached with prosecutors spares the families of the four victims a painful trial and saves taxpayers the expense.  In addition, Abraham said, it saves “hundreds of thousands, if not millions” of dollars spent on the appeals offered to all defendants convicted in capital cases.  Those often go on for decades.

Dennis J. Cogan, a former prosecutor and veteran defense lawyer, called the agreement a “win-win.” Without the confession, he said, the crime might have proved a “tough case” for prosecutors.  With the deal Weintraub struck with DiNardo’s lawyers, Cogan said, “they get the guy, they get the accomplice, and hopefully they bring closure for the families.”

July 15, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14)

Friday, July 14, 2017

Is there much to — or much to say about — reasonableness review a decade after Rita, Gall, and Kimbrough?

The question in the title of this post was the one kicking around my head as I reviewed a DC Circuit sentencing opinion handed down last week in US v. Pyles, No. 14-3069 (DC Cir. July 7, 2017) (available here). A helpful reader made sure I did not miss this lengthy opinion (nearly 50 pages), in which the panel splits over the reasonableness of a (nearly-top-of-the-guideline-range) sentence of 132-months imprisonment for child pornography distribution.   In addition to finding generally reasonable the extended reasonableness discussion of both the majority and the dissent in Pyles, I was struck by how the discussion and debate over the nature and operation of reasonableness review has really not changed much at all in the 10 years since the Supreme Court gave us Rita, Gall, and Kimbrough.

I am not sure anyone should have expected many major jurisprudential developments in the circuit courts after Rita, Gall, and Kimbrough. But, on this summer Friday morning, I am struggling to really think of any major reasonableness review developments. Though there are some important specific rulings from specific circuits on specific issues (like the Dorvee ruling on child porn sentencings from the Second Circuit), I am not sure I could describe any defining characteristics  of reasonableness review circa 2017 that is distinct in any big way from the basic reasonableness review template set by Rita, Gall, and Kimbrough in 2007.

I would especially like to hear from federal practitioners about whether I might be missing something obvious or subtle when noting the seemingly staid nature of reasonableness review jurisprudence over the last decade.  What really strikes me in this context is the fact that debates over federal sentencing laws, polices and practices have been anything but staid over the last decade even as reasonableness jurisprudence has sailed forward ever so smoothly.

July 14, 2017 in Booker and Fanfan Commentary, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Wednesday, July 12, 2017

Missouri Supreme Court extends Miller to juvenile sentenced to mandatory life without parole eligibility for 50 years

The Supreme Court of Missouri yesterday handed down a notable ruling in State ex rel. Carr v. Wallace, No. SC93487 (Mo. July 11, 2017) (available here), which extends the reach of the US Supreme Court Miller ruling beyond mandatory LWOP sentencing.  Here is how the majority opinion in Carr gets going: 

In 1983, Jason Carr was convicted of three counts of capital murder for killing his brother, stepmother, and stepsister when he was 16 years old.  He was sentenced to three concurrent terms of life in prison without the possibility of parole for 50 years.  His sentences were imposed without any consideration of his youth.  Mr. Carr filed a petition for a writ of habeas corpus in this Court. He contends his sentences violate the Eighth Amendment because, following the decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), juvenile offenders cannot be sentenced to life without parole pursuant to mandatory sentencing schemes that preclude consideration of the offender’s youth and attendant circumstances.

Mr. Carr was sentenced under a mandatory sentencing scheme that afforded the sentencer no opportunity to consider his age, maturity, limited control over his environment, the transient characteristics attendant to youth, or his capacity for rehabilitation.  As a result, Mr. Carr’s sentences were imposed in direct contravention of the foundational principle that imposition of a state’s most severe penalties on juvenile offenders cannot proceed as though they were not children.  Consequently, Mr. Carr’s sentences of life without the possibility of parole for 50 years violate the Eighth Amendment.  Mr. Carr must be resentenced so his youth and other attendant circumstances surrounding his offense can be taken into consideration to ensure he will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.  Habeas relief is granted.

Chief Justice Fischer dissenting from the decision, and here is the heart of his short opinion:

Carr's three concurrent terms of life in prison without the possibility of parole for 50 years do not run afoul of Miller. Miller only applies to cases in which a sentencing scheme "mandates life in prison without possibility of parole for juvenile offenders." 132 S. Ct. at 2469.  Therefore, Miller does not require vacating Carr's sentences.  Nor are Carr's sentences inconsistent with this Court's or any of the Supreme Court's current Eighth Amendment jurisprudence. Indeed, the principal opinion's holding that Miller applies to Carr's sentences is, undoubtedly, not just an extension of Miller, but also calls into question whether any mandatory minimum sentence for murder could be imposed on a juvenile offender.  Accordingly, I decline to concur with that implication and remain bound by this Court's unanimous decision in Hart to apply Miller only to cases involving a mandatory sentence of life in prison without the possibility of parole.

July 12, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Tuesday, July 11, 2017

"It’s time to refocus the punishment paradigm"

The title of this post is the headline of this notable new commentary in The Hill authored by Adam Gelb and Barbara Broderick. Here are excerpts:

[O]ne of the most powerful findings in criminology is that rewards are better shapers of behavior than punishments. But that’s not typically how it works for the 4.7 million Americans on probation or parole, the community supervision programs founded for the purpose of redirecting troubled lives.

Instead, supervision has become mostly about enforcing the rules — report to your probation officer, attend treatment, etc. — and locking people up when they don’t obey.  Corrections professionals call it “Trail ’em, nail ’em, and jail ’em.”

People who commit crimes need to be held accountable for their actions, of course, but the criminal justice system serves a much wider purpose: protecting public safety.  In order to cut crime and recidivism rates — and rein in corrections spending — we need to harness what the research says about changing behavior.  That means refocusing the punishment model and making the primary mission of supervision to promote success, not just punish failure.

This fundamental transformation is one of a set of proposed paradigm shifts in community corrections highlighted in a report set to be released later this month from Harvard’s Kennedy School of Government and the National Institute of Justice — the product of three years of discussions among leading experts in criminal justice, of which we were a part.

Our group sought to identify strategies for probation, parole, and other programs that can both promote public safety and build trust between communities and justice institutions.  Other shifts include moving from mass to targeted supervision, concentrating resources on more serious offenders, and swapping intuition-based policies for evidence-based practices (such as focusing treatment on changing characteristics that contribute to offending, like poor impulse control, and avoiding those that don’t.)

Making supervision more reward-based holds great potential.  A probation officer’s job has traditionally been defined as reactive: wait until something bad happens and then impose a sanction, often a return to prison. This not only costs state taxpayers an average of $30,000 per year for each inmate, it also ignores a good part of what we know works best when it comes to steering ex-offenders away from continued criminality....

Drug courts have helped pioneer reward-based practices by holding graduation ceremonies to commemorate program completion.  Many graduates say it’s the first time in their lives that they’ve achieved something and been publicly acknowledged for it, and studies suggest that this type of recognition inspires them to persist in their sobriety.

Such ceremonies shouldn’t be limited to specialized courts or programs, which handle only a small fraction of the millions of people on community supervision.  They should be expanded and accompanied by other rewards for progress along the way.  Local communities and businesses can chip in with small gift cards and other tokens of recognition.

At least 15 states have passed laws that establish “earned compliance credits,” which typically permit offenders to earn a month off of their supervision terms for each month that they’re in compliance.  This tactic could be expanded and used in new ways.  For instance, for each month they obey the rules, parolees or probationers could have a reduction or elimination of the monthly fee (typically about $50) that they’re required to pay.

Another potentially promising method would capture the power of social media to push positive messages to probationers and parolees when they do well.  Pass a drug test, complete a phase of treatment, or get a job — and you’d receive a batch of digital pats on the back from your treatment team and circle of family and friends.

It’s human instinct to punish wrongdoing, and accountability won’t — and shouldn’t — vanish from the criminal justice system.  We can’t just reward people when they do right but fail to respond when they do wrong. But by shifting the emphasis from retribution to rewards, we can make a greater impact on behavior.

July 11, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)

Latest comments by AG Sessions on drug problems and federal prosecutorial policies

Attorney General Jeff Sessions spoke today at the 30th DARE Training Conference, and the setting not surprisingly prompted him to talk about drug issues and federal prosecutorial policies. His official remarks are available at this link, and here are excerpts:

Drug abuse has become an epidemic in this country today, taking an unprecedented number of American lives.  For Americans under the age of 50, drug overdoses are now the leading cause of death. In 2015, more than 52,000 Americans lost their lives to drug overdoses — 1,000 every week.  More died of drug overdoses in 2015 than died from car crashes or died at the height of the AIDS epidemic.

And the numbers we have for 2016 show another increase — a big increase. Based on preliminary data, nearly 60,000 Americans lost their lives to drug overdoses last year.  That will be the highest drug death toll and the fastest increase in the death toll in American history.  And every day, more than 5,000 Americans abuse painkillers for the first time.

This epidemic is only growing.  It’s only getting worse.  It’s being driven primarily by opioids — prescription drugs, heroin, and synthetic drugs like fentanyl.  Last year, there were 1.3 million hospital visits in the United States because of these drugs.  According to the Centers for Disease Control and Prevention, heroin use has doubled in the last decade among young people 18 to 25....

Now, this is not this country’s first drug abuse crisis.  In the 1980s, when I was a federal prosecutor, we confronted skyrocketing drug abuse rates across the country and we were successful.  In 1980, half of our high school seniors admitted they had used an illegal drug sometime in that year.  But through enforcing our laws and by developing effective prevention strategies, we steadily brought those rates down.

We were in the beginning of this fight, in 1983, when DARE was founded in Los Angeles.  I believe that DARE was instrumental to our success by educating children on the dangers of drug use.  I firmly believe that you have saved lives. And I want to say thank you for that.  Whenever I ask adults around age 30 about prevention, they always mention the DARE program.  Your efforts work.  Lives and futures are saved.

Now, some people today say that the solution to the problem of drug abuse is to be more accepting of the problem of drug abuse.  They say marijuana use can prevent addiction.  They say the answer is only treatment.  They say don’t talk about enforcement.  To me, that just doesn’t make any sense.  In fact, I would argue that one reason that we are in such a crisis right now is that we have subscribed to this mistaken idea that drug abuse is no big deal.

Ignoring the problem — or the seriousness of the problem — won’t make it go away.  Prevention — through educating people about the danger of drugs — is ultimately how we’re going to end the drug epidemic for the long term. Treatment is important, but treatment often comes too late.  By then, people have already suffered from the effects of drugs.  Then their struggle to overcome addiction can be a long process — and it can fail.  I have seen families spend all their savings and retirement money on treatment programs for their children — just to see these programs fail.

Now, law enforcement is prevention.  And at the Department of Justice, we are working keep drugs out of our country to reduce availability, to drive up its price, and to reduce its purity and addictiveness.  We know drug trafficking is an inherently violent business.  If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court.  You collect it by the barrel of a gun.  There is no doubt that violence tends to rise with increased drug dealing.

Under the previous administration, the Department of Justice told federal prosecutors not to include in charging documents the full amount of drugs being dealt when the actual amount would trigger a mandatory minimum sentence.  Prosecutors were required to leave out true facts in order to achieve sentences lighter than required by law. This was billed as an effort to curb “mass incarceration” of “low-level offenders”, but in reality it covered offenders apprehended with large quantities of dangerous drugs.

What was the result?  It was exactly what you would think: sentences went down and crime went up.  Sentences for federal drug crimes dropped by 18 percent from 2009 to 2016.  Violent crime — which had been decreasing for two decades — suddenly went up again.  Two years after this policy change, the United States suffered the largest single-year increase in the overall violent crime rate since 1991.

In May, after study and discussion with criminal justice experts, I issued a memorandum to all federal prosecutors regarding charging and sentencing policy that said we were going to trust our prosecutors again and allow them to honestly charge offenses as Congress intended.  This simple two-page guidance instructs prosecutors to apply the laws on the books to the facts of the case, and allows them to exercise discretion where a strict application of the law would result in an injustice.  Instead of barring prosecutors from faithfully enforcing the law, this policy empowers trusted professionals to apply the law fairly and exercise discretion when appropriate.  That is the way good law enforcement has always worked.

But you know it’s not our privileged communities that suffer the most from crime and violence.  Minority communities are disproportionately impacted by violent drug trafficking and addiction.  Poor neighborhoods are too often ignored in these conversations.

Regardless of their level of wealth or their race, every American has the right to live in a safe neighborhood.  Those of us who are responsible for promoting public safety cannot sit back while any American community is ravaged by crime and violence at the hands of drug traffickers.  We can never yield sovereignty over a single neighborhood, city block, or street corner to drug traffickers....

Experience has shown, sadly, that it is not enough that dangerous drugs are illegal.  We also have to make them unacceptable.  We have to create a cultural climate that is hostile to drug abuse. In recent years, government officials were sending mixed messages about drugs.  We need to send a clear message.  We must have Drug Abuse Resistance Education.  DARE is the best remembered anti-drug program. I am proud of your work.  It has played a key role in saving thousands of lives and futures.

So please — continue to let your voices be heard.  I promise you that I will let my voice be heard.  Our young people must understand that drugs are dangerous; that drugs will destroy their lives, or worse yet, end them.  Let’s get the truth out there and prevent new addictions and new tragedies — and make all of our communities safer.  Thank you.

July 11, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Saturday, July 08, 2017

"Criminal justice reform starts before the trial and sentence"

The title of this post is the title of this new commentary at The Hill authored by Marc Levin and Ed Chung. Here are excerpts (with links from the original): 

Recent media stories have speculated on the future of federal efforts to reform the criminal justice system. Much of the discussion surrounds the possibility of rekindling bipartisan sentencing and corrections reform legislation that was on the cusp of being enacted in the previous Congress.

While comprehensive reforms to lower federal mandatory minimum sentences remain aspirational, there are other policies on which the right and left agree that could have as much, if not more, impact in reducing the nation’s incarcerated population while maintaining public safety. 

Every day, approximately 450,000 people who have not been convicted of a crime are currently behind bars while they await adjudication of their case.  This is more than double the number of people in federal prison and two and half times the total jail population in 1980.  According to a recent analysis by the Prison Policy Initiative, “99 percent of the growth in jails over the last 15 years has been a result of increases in the pre-trial population.”  This increase was not due to a more criminalized or violent society but rather stemmed from discretionary criminal justice policies that increasingly conditioned release from jail on whether they could pay for bail. 

Money bail systems, however, are neither the most effective nor fairest way to achieve the goals of the justice system prior to trial.  For those whom a court determines to be a danger to society, allowing them to pay for their release seems like an illogical remedy where a rich dangerous person is freed but a poor dangerous person remains in jail. And, to ensure a person returns for court appearances, more effective methods have developed in recent years that combine an objective assessment of a person’s risks with appropriate human supervision and electronic monitoring.

The harms and inequities associated with money bail systems — especially when it comes to nonviolent, low-risk poor defendants — are well documented.  According to an analysis by the Arnold Foundation, keeping low-risk defendants in jail for even two or three days increases the likelihood that they will commit a new crime by 40 percent.  The impact also is felt disproportionately by those who cannot pay for even relatively modest bail and thus remain locked up.

The movement to reform bail systems has taken root in a small but growing number of both conservative and progressive states.  Connecticut last month enacted a statute that bars the imposition of financial conditions for pretrial release for most misdemeanors.  Earlier this year, New Jersey passed legislation that eliminated bail for minor crimes and instituted the use of a risk assessment tool to help courts determine pretrial supervision conditions.  Kentucky, which instituted the same risk assessment tool in 2013, will now automatically release people determined to be low-risk if they meet certain criteria.  And Washington, D.C., releases 90 percent of those arrested with conditions to report to a pretrial agency and comply with drug testing and other requirements. 

While state and local policy change is the primary means of achieving bail reform, given that pretrial detention implicates the guarantees of equal protection and due process found in the U.S. Constitution, the federal government can play a collaborative role, even if most of the people in jail awaiting trial are in local facilities.  Through its technical assistance efforts, the Department of Justice (DOJ) shares advancements made in a small number of states with a national audience and provides valuable data that reveals the impact of pretrial practices across the nation. From issuing statements of interest on bail in pending federal litigation to providing guidance on the proper use of risk assessment instruments, the DOJ must remain committed to pretrial policies that prioritize public safety over a person’s ability to pay.

Congress also has an important voice that can exemplify the bipartisan support for bail reform across the country.  The legislative branch’s bully pulpit is especially effective when emphasizing points of agreement across the political spectrum....

There is still much work to be done to reform the criminal justice system.  Fortunately, this remains a priority that transcends partisanship, even in the current political climate. It is time for our national leaders to act on the consensus developed among states, local communities, advocates, and think tanks representing different ideological perspectives like ours. 

July 8, 2017 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, July 07, 2017

Split Third Circuit panel finds numerous problems with short federal sentences for child-abusing Army couple

A remarkable and unusual federal sentencing involving a child-abusing couple led yesterday to a remarkable and unusual federal circuit sentencing opinion in US v. Jackson, No. 16-1200 (3d Cir. July 6, 2017) (available here). Here is how the 80-page(!) majority opinion by Judge Cowen gets started:

John and Carolyn Jackson (“John” and “Carolyn”) were convicted of conspiracy to endanger the welfare of a child and endangering the welfare of a child under New Jersey law— offenses that were “assimilated” into federal law pursuant to the Assimilative Crimes Act (“ACA”).  The United States District Court for the District of New Jersey sentenced Carolyn to 24 months of imprisonment (as well as three years of supervised release). John received a sentence of three years of probation (together with 400 hours of community service and a $15,000 fine). The government appeals from these sentences.

We will vacate the sentences and remand for resentencing.  Concluding that there is no “sufficiently analogous” offense guideline, the District Court declined to calculate Defendants’ applicable sentencing ranges under the Guidelines. Although we adopt an “elements-based” approach for this inquiry, we conclude that the assault guideline is “sufficiently analogous” to Defendants’ offenses of conviction. Furthermore, the District Court failed to make the requisite findings of fact — under the applicable preponderance of the evidence standard — with respect to this Guidelines calculation as well as the application of the statutory sentencing factors.  We also agree with the government that the District Court, while it could consider what would happen if Defendants had been prosecuted in state court, simply went too far in this case by focusing on state sentencing practices to the exclusion of federal sentencing principles. Finally, the sentences themselves were substantively unreasonable.

Here is how the dissenting opinion by Judge McKee gets started:

It is impossible for anyone with an ounce of compassion to read through this transcript without becoming extraordinarily moved by allegations about what these children had to endure. Had the defendants been convicted of assault, or crimes necessarily involving conduct that was in the same “ballpark” as assault as defined under New Jersey law, I would readily agree that this matter had to be remanded for resentencing using the federal guidelines that govern assault.  However, the district court held a ten and a half hour sentencing hearing in an extraordinarily difficult attempt to sort through the emotion and unproven allegations and sentence defendants for their crimes rather than the conduct the government alleged at trial and assumes in its brief. I believe the court appropriately did so pursuant to 18 U.S.C. §3553(a). Accordingly, I must respectfully dissent.

Before I begin my discussion, however, I must note that the defendants in this case were acquitted of the only federal offenses with which they were charged: assault with a dangerous weapon, with intent to do bodily harm, and assault resulting in serious bodily injury.  As I discuss more fully in Section II, these assault charges seem to drive the government’s argument and the Majority’s analysis.  In order to minimize confusion about the precise nature of the charges in this case and the conduct that was proven, a chart listing each of the charges and their outcomes is attached as an addendum to this dissent.

There are lots of lots of interesting elements to this unusual case, but the rarity of reversals of sentences as substantively unreasonable led me to read that part of the majority opinion most closely.  The majority here repeatedly finds flaws in how the district court weighed various permissible § 3553(a) considerations.  And the discussion begins by noting that the guidelines called for sentences of perhaps 20 or more years for these defendants so that "probation for John and 24 months’ imprisonment for Carolyn represented enormous downward variances, which require correspondingly robust explanations for why such lenience was warranted."

July 7, 2017 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, July 06, 2017

An amusing shout-out for the US Sentencing Commission's guideline simplification efforts

I just noticed an blog-worthy little concurrence by Judge Owens at the end of a Ninth Circuit panel decision last week in US V. Perez-Silvan, No. 16-10177 (9th Cir. June 28, 2017) (available here). The case concerned application of the "crime of violence" sentencing enhancement to a sentence for illegal reentry after deportation based on a prior Tennessee conviction for aggravated assault, and Judge Owen wrote this short opinion to praise the work of both his court and the US Sentencing Commission:

I fully join Judge O’Scannlain’s opinion, which faithfully applies controlling law to the question at hand.  But what a bad hand it is -- requiring more than 16 pages to resolve an advisory question.  I applaud the United States Sentencing Commission for reworking U.S.S.G. § 2L1.2 to spare judges, lawyers, and defendants from the wasteland of DescampsSee U.S.S.G. supp. app. C, amend. 802 (2016); U.S.S.G. § 2L1.2(b) (2016).  I continue to urge the Commission to simplify the Guidelines to avoid the frequent sentencing adventures more complicated than reconstructing the Staff of Ra in the Map Room to locate the Well of the Souls.  Cf. Almanza-Arenas v. Lynch, 815 F.3d 469, 482–83 (9th Cir. 2016) (en banc) (Owens, J., concurring); Raiders of the Lost Ark (Paramount Pictures 1981).

July 6, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, July 05, 2017

Divided California Supreme Court decides Prop 47 did not alter rules for retroactivity of Prop 36 three-strikes reform

As reported in this Los Angeles Times article, headlined "California Supreme Court makes it harder for three-strike prisoners to get sentence reductions," earlier this week the top court in California divided over the resolution of an intricate and interesting retroactivity question. Here are the details:

Judges have broad authority in refusing to lighten the sentences of “three-strike” inmates, despite recent ballot measures aimed at reducing the state’s prison population, the California Supreme Court ruled Monday. In a 4-3 decision, the court said judges may freely decline to trim sentences for inmates who qualify for reductions under a 2012 ballot measure intended to reform the state’s tough three-strikes sentencing law.

Justice Leondra R. Kruger, an appointee of Gov. Jerry Brown, joined the more conservative justices to reach the result. The decision aimed to resolve questions posed by two ballot measures in recent years to reduce the population of the state’s overburdened prison system.

Proposition 36 allowed three-strike inmates to obtain sentence reductions if their third strike was neither serious nor violent. Judges were entitled to refuse a reduction if they believed the inmate posed an “unreasonable risk of danger to public safety.” They could consider the inmate’s history, disciplinary record in prison or other evidence.

Two years later, voters passed another ballot measure to reduce the prison population.  That measure, Proposition 47, created a definition of a safety risk that judges were required to apply.  Inmates could be denied a sentence reduction only if they were deemed to pose an unreasonable risk of committing certain crimes, including a killing, a sexually violent offense, child molestation or other serious or violent felony punishable by life in prison or the death penalty.

The court majority, led by Chief Justice Tani Cantil-Sakauye, said Monday that definition did not apply to three-strikers, who have been sentenced to 25 years to life for repeated crimes.  If it had, Cantil-Sakauye wrote, it would “result in the release of more recidivist serious and/or violent offenders than had been originally contemplated under Proposition 36.”

Cantil-Sakauye noted that none of the ballot materials for Proposition 47 mentioned that it would affect three-strike prisoners. Proposition 47 allowed judges to reduce some nonviolent felonies to misdemeanors.  “Based on the analysis and summary they prepared, there is no indication that the Legislative Analyst or the Attorney General were even aware that the measure might amend the resentencing criteria governing the Three Strikes Reform Act,” the chief justice wrote.

The ruling came in appeals filed by David J. Valencia and Clifford Paul Chaney, who were both sentenced to 25 years to life under the three strikes law and both eligible for reduced terms under Proposition 36. Valencia’s criminal history included kidnapping, making criminal threats and striking his wife.  Chaney’s record included armed robbery and three convictions for driving under the influence....

Justice Kathryn Mickle Werdegar and Brown’s two other appointees — Justices Goodwin Liu and Mariano-Florentino Cuéllar — noted in dissents that Proposition 47 clearly stated that the definition would apply throughout the criminal code.  The more restrictive definition advanced “the goal of concentrating state corrections spending on the most dangerous offenders,” Cuéllar wrote, and gave three-strike prisoners only “a marginally stronger basis” for winning sentence reductions.

Liu said the court majority had concluded “that the drafters of Proposition 47 pulled a fast one on an uninformed public.” But it is also possible that voters, unhappy about the huge amounts of money being spent on prisons, “knew exactly what they were doing,” Liu wrote.  Monday’s ruling “disserves the initiative process, the inmates who are now its beneficiaries, and the judicial role itself,” he said.

The full 110-page(!) opinion in this case is available at this link.

July 5, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Federal district judge explains his remarkable reasons for rejecting an unremarkable plea deal in heroin dealing prosecution

A helpful reader alerted me to a fascinating opinion issued last week by US District Judge Joseph Goodwin of the Southern District of West Virginia in US v. Walker, No. 2:17-cr-00010 (SD W. Va. June 26, 2017) (available here).  The full opinion is a must read, and here is its conclusion:

My twenty-two years of imposing long prison sentences for drug crimes persuades me that the effect of law enforcement on the supply side of the illegal drug market is insufficient to solve the heroin and opioid crisis at hand. I also see scant evidence that prohibition is preventing the growth of the demand side of the drug market. Nevertheless, policy reform, coordinated education efforts, and expansion of treatment programs are not within my bailiwick. I may only enforce the laws of illicit drug prohibition.

The law is the law, and I am satisfied that enforcing the law through public adjudications focuses attention on the heroin and opioid crisis.  The jury trial reveals the dark details of drug distribution and abuse to the community in a way that a plea bargained guilty plea cannot.  A jury trial tells a story.  The jury members listening to the evidence come away with personally impactful information about the deadly and desperate heroin and opioid crisis existing in their community.  They are educated in the process of performing their civic duty and are likely to communicate their experience in the courtroom to family members and friends.  Moreover, the attendant media attention that a jury trial occasions communicates to the community that such conduct is unlawful and that the law is upheld and enforced.  The communication of a threat of severe punishment acts as an effective deterrent.  As with other criminalized conduct, the shame of a public conviction and prison sentence specifically deters the sentenced convict from committing the crime again — at least for so long as he is imprisoned.

Over time, jury verdicts involving the distribution of heroin and opioids reinforce condemnation of the conduct by the public at large. In turn, respect for the law propagates.117 This respect for the law may eventually reduce such criminal conduct.

The secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for the law and deterrence of crime.  The bright light of the jury trial deters crime, enhances respect for the law, educates the public, and reinforces their sense of safety much more than a contract entered into in the shadows of a private meeting in the prosecutor’s office.

For the reasons stated, I REJECT the plea agreement.

It will be quite interesting to see if the parties appeal this rejection of the plea agreement or if the defendant decides to plea without the benefit of any agreement (which I believe must be accepted if the judge finds it is voluntary).

July 5, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Tuesday, July 04, 2017

"Impeachable Offenses? The Case for Removal of the 45th President of the United States"

The title of this post is the title of this notable new blog created by former federal prosecutor and sentencing guru Professor Frank Bowman. Frank sent a note about the blog around a criminal law professor listserve yesterday, and I thought sharing that note today was, in a nerdy-law-professor way, kind of patriotic. So here is a bit of what Frank had to say about his new blog:

I propose to discuss, as dispassionately as possible, the case for impeachment of Mr. Trump. An actual impeachment is, as I’m sure you’d agree, a highly unlikely event.  But the prospect is talked about constantly, so I thought I’d try to create a resource for careful examination of all aspects of the question. I hope to make it a combination of (1) sources for those really interested in the subject, (2) quick-hit posts of links to other articles by other authors discussing impeachment, and (3) a growing series of essays by me, perhaps some of my students, and maybe other contributors on aspects of the impeachment problem.

Although it is a work in progress, I now have enough content on the site that I feel comfortable in telling people about it. I am in the midst of a series of posts analyzing the case for criminal obstruction of justice against Mr. Trump. See, e.g., this posting. In it, I discuss the views of Eric Posner, Daniel Hemel, Randall Eliason, Alan Dershowitz, and others. Professor Dershowitz has been kind enough to respond to my remarks on his position, and I’ve posted a rejoinder.

July 4, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14)

Monday, July 03, 2017

Highlighting Justice Gorsuch's interesting concurrence in Hicks on the perils of permitting sentencing error to persist

Adam Liptak has this effective new article in the New York Times about the effectiveness of the new Justice on the Supreme Court, Neil Gorsuch. The article is headlined "Confident and Assertive, Gorsuch Hurries to Make His Mark," and it develops the point that Justice Gorsuch's "early opinions were remarkably self-assured." The article and that line reminded me that I have been meaning to highlight Justice Gorsuch's remarkable little concurrence on the final day of the term in the Hicks v. US, No. 16-7806 (S. Ct. June 26, 2017) (available here).

Hicks is a quirky case in a quirky posture after the defendant was sentenced under the wrong crack sentencing law during the transitional uncertainty after the passage of the Fair Sentencing Act. The government admits in its briefing to SCOTUS that Hicks' 20-year mandatory-minimum sentence was legally erroneous, but the government asked SCOTUS to remand the case to the Fifth Circuit to conduct the full plain error analysis. The Supreme Court did just that via a short order, but the Chief Justice joined by Justice Thomas dissented with a short opinion suggesting that SCOTUS should make a plain error decision before being willing to vacate the judgment below. This dissent, it seems, prompted Judge Gorsuch to want to defend the Court's action and in so doing he had a lot of interesting things to say. These passages from the end of his concurrence in particular caught my attention:

A plain legal error infects this judgment—a man was wrongly sentenced to 20 years in prison under a defunct statute.  No doubt, too, there’s a reasonable probability that cleansing this error will yield a different outcome.  Of course, Mr. Hicks’s conviction won’t be undone, but the sentencing component of the district court’s judgment is likely to change, and change substantially. For experience surely teaches that a defendant entitled to a sentence consistent with 18 U.S.C. §3553(a)’s parsimony provision, rather than pursuant to the rigors of a statutory mandatory minimum, will often receive a much lower sentence.  So there can be little doubt Mr. Hicks’s substantial rights are, indeed, implicated.  Cf. Molina-Martinez v. United States, 578 U. S. ___, ___ (2016).  When it comes to the fourth prong of plain error review, it’s clear Mr. Hicks also enjoys a reasonable probability of success.  For who wouldn’t hold a rightly diminished view of our courts if we allowed individuals to linger longer in prison than the law requires only because we were unwilling to correct our own obvious mistakes?  Cf. United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (CA10 2014).

Now this Court has no obligation to rove about looking for errors to correct in every case in this large country, and I agree with much in Justice Scalia’s dissent in Nunez v. United States, 554 U.S. 911, 911–913 (2008), suggesting caution..... But, respectfully, I am unaware of any such reason here.  Besides, if the only remaining objection to vacating the judgment here is that, despite our precedent routinely permitting the practice, we should be wary of remanding a case without first deciding for ourselves the latter elements of the plain error test, that task is so easily done that in this case that I cannot think why it should not be done. Indeed, the lone peril in the present case seems to me the possibility that we might permit the government to deny someone his liberty longer than the law permits only because we refuse to correct an obvious judicial error.

Based on Justice Gorsuch's votes in a few other criminal cases, early indications suggest that he is far more often going to vote in favor of the government rather than in favor of criminal defendants across the range of criminal law and procedure cases.  But his decision to write separately in this little case to push back at the dissenters here with this particular language leads me to wonder if Justice Gorsuch (like the Justice he replaced) might prove to be an especially interesting and unpredictable vote and voice in federal sentencing cases in particular.

July 3, 2017 in New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, July 02, 2017

Reviewing what Hurst has come to mean for the death penalty in Florida

This new Miami Herald article, headlined "There are fewer murderers on Florida’s Death Row but not because of executions," reports on the enduring echo effects of the Supreme Court's most significant capital punishment ruling in recent years. Here is how the article gets started:

The full impact of a historic U.S. Supreme Court ruling on Florida’s death penalty system is finally emerging as the state’s Death Row population is smaller than it was more than a decade ago and will keep shrinking for a long time.

Florida has not executed an inmate in 18 months. No inmates haves been sent to Death Row in more than a year, a sign that prosecutors are not trying as many first-degree murder cases because of uncertainties in the sentencing system.

“There is no reason to sign a death warrant if you know it’s going to get delayed,” said State Attorney Bernie McCabe, the top prosecutor in Pinellas and Pasco counties. “I think judges are reluctant to if they don’t know what the rules are.”

Florida’s Death Row population now stands at 362, according to the Department of Corrections web site. That’s the lowest number since 2004; only a year ago, the population was 389.

Many more cells on Death Row are certain to be emptied as the Florida Supreme Court continues to vacate death sentences because they violate a 2016 U.S. Supreme Court decision known as Hurst v. Florida.  The case struck down the state’s death penalty sentencing system because it limited jurors to an advisory role, a violation of the Sixth Amendment right to a trial by jury.

In four new cases, the state’s high court upheld first-degree murder convictions Thursday but ordered that all four defendants must be resentenced because of the Hurst decision, a step that could spare any or all of them a trip to the execution chamber.

One of the four, John Sexton, was convicted of the brutal 2010 Pasco County slaying of Ann Parlato, a 94-year-old woman who lived alone. The jury that convicted Sexton recommend his execution by a vote of 10 to 2, a split decision that justices said Thursday is a violation of the Hurst decision.  Justices also lifted the death sentence of Tiffany Ann Cole, convicted of burying a couple alive in Jacksonville.  She’s one of three women on Death Row.

Legal experts say that in all, up to 150 death sentences could be reversed or be sent back to trial courts for resentencing hearings in other cases in which the jury’s recommendation of a death sentence was not unanimous. Those penalty phase hearings will strain the limited resources of prosecutors and public defenders, who must scramble to find old trial transcripts and witnesses and must empanel new juries.  “I’ll use one word: ‘chaos,’ ” said retired Supreme Court Justice Gerald Kogan of Miami. “It’s just a mess.”

Scott Sundby, a law professor at the University of Miami, said the impact on the criminal justice system will be significant.  “It essentially means that every new penalty phase is going to have to be re-investigated and presented in full,” Sundby said.  “There will not be an ability to simply rely on the prior penalty phase.”

July 2, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Saturday, July 01, 2017

Amish farmer sentenced to six year in federal prison for regulatory offenses and obstruction

GirodpictureThis local article reports on a notable federal sentencing that seemed driven, at least in part, by the defendant's disinclination to respect the federal government. The article is headlined "Amish farmer sold herbal health products. He’s going to prison for 6 years." Here are some of the details:

An Amish man was sentenced Friday to six years in prison for obstructing a federal agency and for making and selling herbal health products that were not adequately labeled as required by federal law. Samuel A. Girod of Bath County, a member of the Old Order Amish faith, was convicted in March on 13 charges, including threatening a person in an attempt to stop him from providing information to a grand jury.

U.S. District Judge Danny Reeves repeatedly asked Girod in court if he wished to make a statement but Girod refused. Girod, who represented himself, does not acknowledge that the court has jurisdiction. “I do not waive my immunity to this court,” Girod told the judge. “I do not consent.”

Girod has become a cause for some who see him as a victim of the federal government. More than 27,000 people have signed an online petition seeking to have him released from jail. About 75 supporters of Girod, including many Amish, gathered near the federal courthouse on Barr Street in downtown Lexington before and after the sentencing.

“We still have a country where people still come together to help each other,” said Emanuel Schlabach, 27, an Amish man from Logan County. As assistant U.S. attorneys left the courthouse after the sentencing, Girod supporters jeered them. “Shame on you!” shouted one supporter.

One non-Amish supporter, Richard Mack of Arizona, said after the sentencing that, “This is a national disgrace and outrage. ... He is being punished for being stubborn.” Mack, a former Arizona sheriff and political activist, said he and others will ask President Donald Trump to issue a pardon to Girod. Mack said he has used Girod’s chickweed salve with no ill effects.

Girod operated a business in Bath County that made products to be used for skin disorders, sinus infections and cancer. One product called TO-MOR-GONE contained an extract of bloodroot that had a caustic, corrosive effect on human skin, according to an indictment.

A federal court in Missouri had barred Girod from distributing the products until he met certain conditions, including letting the U.S. Food and Drug Administration inspect his business. But when two agents tried to inspect the plant in November 2013, Girod and others blocked them and made them leave, the indictment charged. Federal prosecutors said in a sentencing memorandum that Girod knowingly and intentionally sold misbranded products to customers and did not tell any of them about the injunction.

At trial, customers testified that they would not have purchased his products if they had known about the injunction. Girod argued that his products weren’t subject to Federal Drug Administration oversight because they were herbal remedies, not drugs. He also argued that requiring FDA approval of his products infringed on his religious freedom. Old Order Amish seek to insulate themselves from the modern world, including modern pharmaceuticals, he said.

Federal jurors rejected Girod’s defense, convicting him of conspiring to impede federal officers; obstructing a proceeding before a federal agency; failing to register with the FDA as required; tampering with a witness; failing to appear before a hearing; and distributing misbranded drugs....

In documents filed June 19, Girod argued that the charges in the indictment “do not apply to me.” “I am not a creation of state/government, as such I am not within its jurisdiction,” Girod wrote. He added later: “The proceedings of the ‘United States District Court’ cannot be applied within the jurisdiction of the ‘State of Kentucky.’”

Girod’s supporters outside the courthouse said his case is an example of overreach by the federal government. “I don’t need the FDA to protect me from an Amish farmer,” read a sign held by T.J. Roberts, a Transylvania University student from Boone County. “I feel what happened here is an example of judges making the law,” Roberts said. “What the FDA did here is an example of executive overreach in which they are choosing what Americans can put in or on their own bodies. I struggle to find where the victim is in this and where the crime was committed.”

But Judge Reeves said Girod brought the trouble on himself “because he steadfastly refused to follow the law.” To Girod, Reeves said, “You refused to follow anyone but yourself.”

I always have a negative reaction to any use of prison time in response to what seem like non-violent regulatory offenses by a person who would appear to present no genuine threat to public safety.  And this case especially caught my eye not only because a lot of federal prison time was imposed, but also because this critical report about the sentencing from a political blog indicates that the applicable federal guideline range here was 63-78 months.  In other words, the sentencing judge here though the defendant needed and deserved a sentence significantly above the bottom of the applicable guideline range in this case.  Also of note, the judge who decided a six year prison term was necessary in this case, U.S. District Judge Danny Reeves, happens to be the newest member of the US Sentencing Commission.

July 1, 2017 in Booker in district courts, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (27)

Friday, June 30, 2017

"Examining Racial Disparities in Criminal Case Outcomes among Indigent Defendants in San Francisco"

The title of this post is the title of this interesting big new report published by the Quattrone Center for the Fair Administration of Justice.  This Crime Report piece about the report provides this overview of its findings:

An individual’s race and ethnic background determine how he is treated at the “front end” of the criminal justice system, according to a study published this week.  The study, which, focused on poor African-American, Latino and white defendants (all male) in San Francisco, found what it called “systematic differences” in outcomes during the preliminary steps of an individual’s involvement in the justice system, from arrest and booking to the pretrial phase.

“Defendants of color are more likely to be held in custody during their cases, which tend to take longer than the cases of White defendants,” said the study, published by the Quattrone Center for the Fair Administration of Justice.  “Their felony charges are less likely to be reduced, and misdemeanor charges (are) more likely to be increased during the plea bargaining process, meaning that they are convicted of more serious crimes than similarly situated White defendants.”

The study’s conclusions added a troubling dimension to existing research on racial disparities in the U.S. justice system which has largely concentrated on “final case outcomes,” such as conviction, incarceration and sentence length.  In California, for example, African-American men are incarcerated at 10 times the incarceration rate of white men, five times the incarceration rate of Latino men, and 100 times the incarceration rate of Asian men, according to figures cited by the study.

But the study authors’ examination of more than 10,000 records of cases between 2011 and 2014 provided by the San Francisco Public Defender’s Office challenged the notion that the difference is explained simply by the fact that African-Americans or Hispanics commit more crimes than other groups.  Their findings suggest that whites are in fact treated more leniently when they are apprehended during the early stages of their involvement in the justice system, thus making them less likely to end up with prison terms in the first place.

The full report linked above runs more than 100 pages, but the Quattrone Center webisite has this shorter summary version.

June 30, 2017 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

Wednesday, June 28, 2017

Two very different (but perhaps similar) tales of prison sentencing from outpost Virginia in incarceration nation

I generally do not blog all that often or that much about individual sentencing cases unless they involve high-profile defendants or high-profile issues or result in high-profile rulings.  But this afternoon I just happen to come across two notable local sentencing stories back-to-back from the same local Virginia paper that for me highlighted the enduring tendency in the United States to use imprisonment, and then more imprisonment, in response to any and every social and legal problem.  Here are the headlines and essentials that caught my eye:

"JMU student gets jail time for registering dead people"

A 21-year-old man who pleaded guilty last week to filing 18 phony voter registration applications in Harrisonburg will spend 100 to 120 days in prison, according to federal prosecutors in the Western District of Virginia.

Andrew J. Spieles of Harrisonburg admitted to filing the fraudulent registrations in August while working with Democratic-affiliated groups as a student at James Madison University ahead of the 2016 presidential election. The fraud was discovered after local election officials noticed that some applications had been filed in the names of dead people, including the father of a Rockingham County judge.

The offense was punishable by a fine of up to $100,000 and up to a year in prison. Spieles told investigators that he fabricated the applications to help a co-worker hit a registration “quota,” according to court documents. There is no indication any fraudulent votes were cast in November’s election as a result of the improper registrations.

"Jury recommends 65-year sentence for Charlottesville heroin dealer"

A Henrico County jury has called for a 65-year sentence for a man convicted of purchasing heroin at Short Pump parking lots so the drugs could be resold in Charlottesville, where the defendant lived.  The jury recommended that decades-long sentence for Norell Sterling Ward, 46, last week after convicting him on a count of conspiracy to distribute heroin and on two counts of possessing heroin with the intent to distribute, said Matthew C. Ackley, a deputy Henrico commonwealth’s attorney.

Attorneys in the case could not say whether a 65-year term, if enacted, would set any type of record punishment for this type of crime, but all agreed it would represent a significant sentence. “I can tell you that this is a high sentence and likely reflective of the community awareness of the heroin problem in Henrico,” Ackley said.

Ward was identified as a midlevel heroin distributor who would travel from Charlottesville to Short Pump to buy heroin in parking lots so the drugs could be distributed back in Charlottesville, Ackley said. The prosecutor said it’s estimated Ward distributed 4 to 6 kilograms of heroin over a roughly 18-month period. The defendant would purchase the drugs from parking lots at Short Pump-area businesses including McDonald’s, Whole Foods, Target and 7-Eleven, Ackley said.

Henrico Circuit Judge Richard S. Wallerstein Jr. will now weigh whether to follow through on the jury’s recommendation and impose the full 65 years at a September sentencing....

Ackley said Ward bought his heroin from a drug organization run by Shawn Lamont Bailey, a 46-year-old Henrico man who pleaded guilty in January to two felony counts of distributing heroin near his West Broad Village home. Bailey is to be sentenced next month. Under a plea deal, Bailey agreed to plead guilty in return for spending between 8 to 10 years in prison.

Ward, who is going to be formally sentenced on Sept. 13, has a criminal history that includes convictions for two burglaries as well as a conviction for possessing heroin, Ackley said.

June 28, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (2)

En banc Sixth Circuit reverses preliminary injunction that had been preventing Ohio from moving forward with executions

Unsurprisingly, the en banc Sixth Circuit today ruled for the State of Ohio in its appeal of a lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  Here is how the majority opinion (per Judge Kethledge, who wrote the dissent in the original panel ruling) in  In re: Ohio Execution Protocol, No. 17-3076 (6th Cir. June 28, 2017) (available here) gets started:

Roughly two decades have passed since the plaintiffs in this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs ruptured. For two days she suffered intense abdominal pain and vomiting, until her heart collapsed. See State v. Phillips, 656 N.E.2d 643, 650-52 (Ohio 1995).  Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head.  Two nights later, Otte pushed his way into a woman’s home and did the same things to her. After each murder Otte went out partying. See State v. Otte, 660 N.E.2d 711, 715-16 (Ohio 1996).  Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his chair with butcher knives protruding from his chest and back.  His caretaker lay on the floor in a pool of blood with her skull cracked open and its contents scattered nearby. See State v. Tibbetts, 749 N.E.2d 226, 237-39 (Ohio 2001).

Phillips, Otte, and Tibbetts now claim that Ohio’s Execution Protocol would cause them to suffer severe pain in violation of the Eighth Amendment.  In a sense the claim is unprecedented: the Supreme Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015) (internal quotation marks omitted). The State’s chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court upheld in Glossip.  Every other court of appeals to consider that procedure has likewise upheld it, including most recently the Eighth Circuit, which rejected a nearly identical challenge in a procedural posture identical to the one here.  See McGehee v. Hutchinson, 854 F.3d 488, 492 (8th Cir. 2017) (en banc) (per curiam), cert. denied, 137 S. Ct. 1275 (2017); Glossip, 135 S. Ct. at 2739-40 (collecting cases); Brooks v. Warden, 810 F.3d 812, 818-22 (11th Cir. 2016); cf. Jordan v. Fisher, 823 F.3d 805, 811-12 (5th Cir. 2016).  Yet here the district court thought the same procedure is likely invalid.  We respectfully disagree and reverse the court’s grant of a preliminary injunction.

The chief dissent was penned by Judge Moore (who wrote the majority decision for the original panel upholding the stay).  This dissent runs about twice as long as the majority opinion, and it gets started this way:

There is a narrow question before this court: Should Gary Otte, Ronald Phillips, and Raymond Tibbetts have a trial on their claim that Ohio’s execution protocol is a cruel and unusual punishment, or should Ohio execute them without such a trial?  The majority has concluded that there is no need for a trial on the merits of Plaintiffs’ constitutional claim. I disagree.

There is no dispute that the second and third drugs in Ohio’s execution protocol cause immense pain.  There is significant evidence that the first drug, midazolam, cannot prevent someone from feeling that pain.  After a five-day hearing on Plaintiffs’ motion for a preliminary injunction, the district court determined that there should be a full trial on the merits of Plaintiffs’ claim that Ohio’s use of midazolam as the first drug in a three-drug execution protocol creates a constitutionally unacceptable risk of pain. Despite the deferential standard of review that this court should apply, the majority casts aside the district court’s determination that Plaintiffs should have a trial before the state executes them.  The majority also determines that despite Defendants’ unequivocal sworn testimony that they would no longer use pancuronium bromide or potassium chloride in executions, judicial estoppel does not prevent their renewed attempt to use those drugs. For the reasons discussed below, I would hold that Plaintiffs should have a trial on their Eighth Amendment and judicial-estoppel claims, and I respectfully dissent.

This Ohio DRC execution page details that Ohio is scheduled to execute Ronald Phillips on July 26 and has scheduled executions for more than two dozen other Ohio inmates running all the way through 2020. This Sixth Circuit will surely be appealed by Phillips to the US Supreme Court in the coming weeks, but I would be very surprised if SCOTUS takes up the case after it has recently allowed other midazolam executions to go forward. And if Ohio is able to to complete executions uneventfully with its current protocol, the state could now be on a path to having more executions in the next few years than perhaps any other state in the nation.

June 28, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Tuesday, June 27, 2017

"Will Trump Use Science to Fight Crime?"

The question in the title of this post is the headline of this notable new piece by Ted Gest at The Crime Report, which reports on what some criminologists had to say at a recent event about crime fighting in the Trump Administration.  Here are excerpts:

Leading criminologists expressed cautious optimism yesterday that President Trump will embrace evidence-based practices in his administration’s war on crime.

Laurie Robinson, who advocated the use of science in justice as an Assistant Attorney General in the Obama administration, declared, “I do not think the [criminal justice] field is turning back” on evidence-based programs. Robinson, now a member of the criminology faculty at George Mason University, said that officials “on the front line have to know what works, and how to pay for it.” She noted that bipartisan justice reform plans had been approved in recent years in such conservative states as Georgia, Louisiana and North Dakota.

Her comments came at the annual gathering sponsored by the Center for Evidence-Based Crime Policy at the George Mason campus, in northern Virginia near Washington, D.C.. The session opened with a discussion on the “Progress of Evidence-Based Crime Policy in the Last Three Decades.”

Some critics have expressed doubt that the new administration will base policies on scientific evidence, noting Trump’s professed disbelief in global warming and Attorney General Jeff Sessions’ advocacy of tough-on-crime practices that studies have found ineffective....

Denise O’Donnell, who headed the Justice Department’s Bureau of Justice Assistance under Obama, said many U.S. policing leaders have concluded that “there is power in data.” She cited such developments as the use of public opinion surveys by police departments in formulating policies on officers’ body-worn cameras.

James Burch, a vice president of the Washington, D.C.-based Police Foundation and a former Justice Department official, offered a “qualified yes” to the question of whether evidence-based criminal justice practices will continue under Trump. Burch said he detected a “different tone” in discussions among police chiefs and sheriffs at national conventions in recent years. Law enforcement officials are asking themselves “how do we hold ourselves accountable?” he said....

Speakers pointed out that in opening a national “summit” on crime reduction and public safety last week, Sessions said that in a new national “Public Safety Partnership” involving 12 localities, the Justice Department will provide “diagnostic teams” to “assess the local factors driving increased violent crime, and will help local leaders develop strategies to address those factors.”

June 27, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Pennsylvania Supreme Court issues major Miller ruling declaring presumption against the imposition of LWOP on juvenile killers

The Pennsylvania Supreme Court yesterday handed down a major ruling on the application and implementation of the Supreme Court's modern Miller Eighth Amendment jurisprudence. The lengthy ruling in Pennsylvania v. Batts, No. 45 MAP 2016 (Pa. June 26, 2017 (available here), gets started this way:

Qu’eed Batts (“Batts”) was convicted of a first-degree murder that he committed when he was fourteen years old. His case returns for the second time on discretionary review for this Court to determine whether the sentencing court imposed an illegal sentence when it resentenced him to life in prison without the possibility of parole. After careful review, we conclude, based on the findings made by the sentencing court and the evidence upon which it relied, that the sentence is illegal in light of Miller v. Alabama, 567 U.S. 460 (2012) (holding that a mandatory sentence of life in prison without the possibility of parole, imposed upon a juvenile without consideration of the defendant’s age and the attendant characteristics of youth, is prohibited under the Eighth Amendment to the United States Constitution), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (holding that the Miller decision announced a new substantive rule of constitutional law that applies retroactively and clarifying the limited circumstances in which a life-without-parole sentence is permissible for a crime committed when the defendant was a juvenile).

Pursuant to our grant of allowance of appeal, we further conclude that to effectuate the mandate of Miller and Montgomery, procedural safeguards are required to ensure that life-without-parole sentences are meted out only to “the rarest of juvenile offenders” whose crimes reflect “permanent incorrigibility,” “irreparable corruption” and “irretrievable depravity,” as required by Miller and Montgomery.  Thus, as fully developed in this Opinion, we recognize a presumption against the imposition of a sentence of life without parole for a juvenile offender.  To rebut the presumption, the Commonwealth bears the burden of proving, beyond a reasonable doubt, that the juvenile offender is incapable of rehabilitation.

Because Pennsylvania has a large JLWOP population impacted by Miller and because proving rehabilitation incapacity beyond a reasonable doubt seem to be perhaps close to impossible, this Batts ruling strikes me as a  big deal jurisprudentially and practically.  (And, for any remaining Apprendi/Blakely fans, it bears noting that the Batts opinion expressly rejects the defendant's contention that a "jury must make the finding regarding a juvenile’s eligibility to be sentenced to life without parole.)

June 27, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, June 26, 2017

SCOTUS denies cert on Wisconsin case with defendant challenging risk-assessment sentencing

I had thought I had reported on all the blog-worthy action in the the Supreme Court on this busy day via prior posts here and here and here ... until one of my favorite colleagues alerted me to the fact that today's SCOTUS order list also included a denial of cert in Loomis V. Wisconsin.  This local press article discusses thie cert denial under the headline "Supreme Court refuses to hear Wisconsin predictive crime assessment case."

As some may recall from some prior postings, Loomis concerned a due process challenge to the use of risk-assessment instruments at sentencing.  And, as noted here, the Supreme Court was interested enough in this issue to invite the Solicitor General to file a brief expressing the views of the United States.  But now it seems SCOTUS was not quite yet ready to take up this interesting and important issue in this case.

Some prior related posts on Loomis case:

June 26, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Should Ohio automatically release inmates if prisons too crowded?"

The question in title of this post is the headline of this Columbus Dispatch article which somewhat imperfectly describes one somewhat notable provision of a huge criminal justice revision proposal in the Buckeye State. Here is the context:

A proposed sweeping rewrite of Ohio’s criminal laws includes a provision that would allow the state to release hundreds of low-level, nonviolent inmates when the prison population hits 47,000. The state prison population last week stood at 50,093 — 3,093 above that threshold.

That change is among hundreds recommended by the Ohio Criminal Justice Recodification Committee, which on June 15 completed a two-year task of rewriting the entire state criminal code. The result is a 4,017-page bill submitted to the General Assembly. The committee composed of judges, legislators, prosecutors, law-enforcement officials and others voted 18-2 to recommend the overhaul.

Other changes include the return of a version of “bad time” for inmates who misbehave in prison, reduced add-on sentences for crimes committed while in possession of a gun, expanded opportunities for offenders to obtain drug treatment in lieu of prison, and an increase in the theft amount that triggers a felony charge to $2,500.

Created by the legislature, the committee was charged with “enhancing public safety and the administration of criminal justice.” The last time criminal laws were overhauled was 1974, although some statutes date to 1953 and have been “effectively superseded or contradicted” by new layers of laws. The committee’s recommendations need the approval of the legislature.

Judge Frederick D. Pepple of Auglaize County Common Pleas Court, chairman of the committee, said he’s pleased with the overall report. “These improvements make the system better and could save hundreds of millions of dollars. When I stand back and look at it, without getting into every nitty-gritty detail, I’m satisfied.”

Pepple said the rewrite cut down the length of the code by nearly 25 percent, mostly by condensing language. More important, Pepple said the changes would “significantly improve the quality of justice and better protect the people of Ohio ... We tried to make it readable and understandable so people know what is against the law.”

Franklin County Prosecutor Ron O’Brien was one of two committee members, along with Clark County Prosecutor Andy Wilson, to vote against the package. O’Brien said that while he agreed with most of the recommendations, several were deal breakers, including the prison-release provision, which he said would be like “Bastille Day every day.” O’Brien said he disagreed with granting “unilateral authority to reduce prison population.”

The provision would be triggered when the total prison population exceeds 43,500 men and 3,500 women for at least 30 days in a row. At that point, the director of the Department of Rehabilitation and Correction would “direct the parole board to select from those who are eligible for overcrowding parole release a sufficient number of prisoners to be released within thirty days to maintain the inmate population at less than 43,500 for males and 3,500 for females. No more than five hundred male inmates and five hundred female inmates may be released per month pursuant to this section.” The board would select inmates for release “who present the least threat to the public, including the victims and their families,” and those who have committed nonviolent and non-sex-oriented crimes.

In a statement to The Dispatch, Gary Mohr, director of the Department of Rehabilitation and Correction, said he voted for (but did not propose) the overcrowding release provision. However, he said he prefers a method built into the current state-budget proposal to divert nonviolent drug offenders to community treatment “to avoid the potentially lifelong collateral consequences of coming to prison.”...

Ohio Senate President Larry Obhof, R-Medina, praised the committee. “How this group of experts from varying political viewpoints worked together over the last two years speaks volumes about their commitment to pursuing reforms within Ohio’s criminal-justice system.” Holly Harris, executive director of the U.S. Justice Action Network, said that if the rewrite of criminal laws is adopted, “Ohio is ready to take another leap forward on reforming their justice system.”

June 26, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Narrow ruling on Bivens case and rearguments now coming on two notable others

The Supreme Court's action on litigation involving the President's travel ban and a ruling for a church are certain to dominate headlines and SCOTUS analysis for the days to come.  But sentencing fans will not want to entirely overlook some lower-profile developments that also unfolded at SCOTUS this morning on three cases with criminal justice components.  In order to cover a lot of ground quickly, I will borrow language from Crime & Consequences and SCOTUSblog concerning what the cases concerned and what SCOTUS did:

The three cases:  Jennings v. Rodriguez (involving bond hearings for aliens detained pending deportation); Sessions v. Dimaya (concerning whether provisions governing an alien's removal from the United States, is unconstitutionally vague based on Johnson); Hernandez v. Mesa (civil case arising out of a shooting by a border patrol agent across the southern border) .

Today's action per SCOTUSblog: "Ordered reargument in cases involving immigrants' bond hearings and the vagueness of crime of violence in the immigration laws, and remanded for reconsideration of a cross-border shooting in light of an earlier decision."

This USA Today piece, headlined "Supreme Court punts on cross-border shooting, two immigration cases," provides more particulars and context.

June 26, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

SCOTUS rules IAC of appellate counsel in state postconviction proceedings does not excuse procedural default

Resolving a technical and important issue, the US Supreme Court this morning in Davila v. Davis, No. 16-6219 (S. Ct. June 26, 2017) (available here), refused to extend some inmate-friendly habeas jurisprudence. The opinion for the Court in the 5-4 ruling was authored by Justice Thomas and it begins this way:

Federal habeas courts reviewing convictions from state courts will not consider claims that a state court refused to hear based on an adequate and independent state procedural ground.  A state prisoner may be able to overcome this bar, however, if he can establish “cause” to excuse the procedural default and demonstrate that he suffered actual prejudice from the alleged error.  An attorney error does not qualify as “cause” to excuse a procedural default unless the error amounted to constitutionally ineffective assistance of counsel. Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default. See Coleman v. Thompson, 501 U. S. 722 (1991).

In Martinez v. Ryan, 566 U. S. 1 (2012), and Trevino v. Thaler, 569 U. S. 413 (2013), this Court announced a narrow exception to Coleman’s general rule.  That exception treats ineffective assistance by a prisoner’s state postconviction counsel as cause to overcome the default of a single claim — ineffective assistance of trial counsel — in a single context — where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal. The question in this case is whether we should extend that exception to allow federal courts to consider a different kind of defaulted claim — ineffective assistance of appellate counsel. We decline to do so.

The dissent authored by Justice Breyer and joined by the other more liberal justces begins this way:

As the Court explains, normally a federal habeas court cannot hear a state prisoner’s claim that his trial lawyer was, constitutionally speaking, “ineffective” if the prisoner failed to assert that claim in state court at the appropriate time, that is, if he procedurally defaulted the claim.  See ante, at 1 (the prisoner’s failure to raise his federal claim at the initial-review state collateral proceeding amounts to an “adequate and independent state procedural ground” for denying habeas relief).

But there are equitable exceptions. In Martinez v. Ryan, 566 U. S. 1 (2012), and later in Trevino v. Thaler, 569 U. S. 413 (2013), we held that, despite the presence of a procedural default, a federal court can nonetheless hear a prisoner’s claim that his trial counsel was ineffective, where (1) the framework of state procedural law “makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal,” id., at 429; (2) in the state “‘initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective,’” ibid. (quoting Martinez, 566 U. S., at 17); and (3) “the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit,” id., at 14.

In my view, this same exception (with the same qualifications) should apply when a prisoner raises a constitutional claim of ineffective assistance of appellate counsel. See, e.g., Evitts v. Lucey, 469 U. S. 387, 396 (1985) (Constitution guarantees a defendant an effective appellate counsel, just as it guarantees a defendant an effective trial counsel).

June 26, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Sunday, June 25, 2017

"A Holistic Framework to Aid Responsible Plea-Bargaining By Prosecutors"

The title of this post is the title of this notable new note authored by Aditi Juneja now available via SSRN.  Here is the abstract:

In our criminal justice system, ninety-four percent of cases are resolved through plea in state courts.  As Justice Kennedy recently observed: “the reality [is] that criminal justice today is, for the most part, a system of pleas, not a system of trials.”  This note is focused on expanding what prosecutors believe justice entails during the plea-bargaining process.  Unlike theories of plea-bargaining that state the goal to be the “highest deserved punishment the prosecutor could obtain on a plea,” this note focuses on how prosecutors can ensure that the lowest deserved punishment possible to achieve justice is imposed in order to preserve a defendant's right to liberty.

To achieve this goal, the note attempts to explain what factors individual prosecutors consider when plea bargaining. If provided a framework, prosecutors are capable of evaluating the multiple considerations that would be relevant in attempting to maximize the public good.  This note operates from the premise that it is possible, and perhaps preferable, to transform the culture of prosecutors’ offices from the ground up.  In order to contextualize the way these factors would be considered, it is important to understand the amount of prosecutorial discretion possessed by individual prosecutors.  As such, this note explores the scope of prosecutorial discretion in plea bargaining.  First, the note considers the scope of prosecutorial discretion possessed by individual prosecutors within the context of office customs, office policies, ethical obligations and laws. The note then outlines a framework of factors a prosecutor might consider in deciding what plea deal to offer including the completeness of information, purposes of punishment, the defense counsel, reasons a defendant might plead guilty besides factual guilt, and impacts of punishment on the legitimacy of law.  This is the first academic paper to suggest that line prosecutors themselves attempt to conduct a multi-factored analysis in determining what plea deal should be offered is necessary and that the plea deal should be distinct from the sentence that might be offered at trial given the lack of procedural safeguards.

June 25, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Saturday, June 24, 2017

Former DAG Sally Yates makes the case against AG Sessions new federal charging and sentencing policies

Former Deputy Attorney General Sally Yates that this new Washington Post commentary under the headline "Making America scared again won’t make us safer." Here are excerpts:

All across the political spectrum, in red states and blue states, from Sen. John Cornyn (R-Tex.) and the Koch brothers to Sen. Patrick Leahy (D-Vt.) and the American Civil Liberties Union, there is broad consensus that the “lock them all up and throw away the key” approach embodied in mandatory minimum drug sentences is counterproductive, negatively affecting our ability to assure the safety of our communities.

But last month, Attorney General Jeff Sessions rolled back the clock to the 1980s, reinstating the harsh, indiscriminate use of mandatory minimum drug sentences imposed at the height of the crack epidemic.  Sessions attempted to justify his directive in a Post op-ed last weekend, stoking fear by claiming that as a result of then-Attorney General Eric H. Holder Jr.’s Smart on Crime policy, the United States is gripped by a rising epidemic of violent crime that can only be cured by putting more drug offenders in jail for more time.

That argument just isn’t supported by the facts.  Not only are violent crime rates still at historic lows — nearly half of what they were when I became a federal prosecutor in 1989 — but there is also no evidence that the increase in violent crime some cities have experienced is the result of drug offenders not serving enough time in prison.  In fact, a recent study by the bipartisan U.S. Sentencing Commission found that drug defendants with shorter sentences were actually slightly less likely to commit crimes when released than those sentenced under older, more severe penalties.

Contrary to Sessions’s assertions, Smart on Crime focused our limited federal resources on cases that had the greatest impact on our communities — the most dangerous defendants and most complex cases. As a result, prosecutors charged more defendants with murder, assault, gun crimes and robbery than ever before.  And a greater percentage of drug prosecutions targeted kingpins and drug dealers with guns.

During my 27 years at the Justice Department, I prosecuted criminals at the heart of the international drug trade, from high-level narcotics traffickers to violent gang leaders. And I had no hesitation about asking a judge to impose long prison terms in those cases.  But there’s a big difference between a cartel boss and a low-level courier. As the Sentencing Commission found, part of the problem with harsh mandatory-minimum laws passed a generation ago is that they use the weight of the drugs involved in the offense as a proxy for seriousness of the crime — to the exclusion of virtually all other considerations, including the dangerousness of the offender.  Looking back, it’s clear that the mandatory-minimum laws cast too broad a net and, as a result, some low-level defendants are serving far longer sentences than are necessary — 20 years, 30 years, even mandatory life sentences, for nonviolent drug offenses.

Under Smart on Crime, the Justice Department took a more targeted approach, reserving the harshest of those penalties for the most violent and significant drug traffickers and encouraging prosecutors to use their discretion not to seek mandatory minimum sentences for lower-level, nonviolent offenders.  Sessions’s new directive essentially reverses that progress, limiting prosecutors’ ability to use their judgment to ensure the punishment fits the crime....

While there is always room to debate the most effective approach to criminal justice, that debate should be based on facts, not fear. It’s time to move past the campaign-style rhetoric of being “tough” or “soft” on crime. Justice and the safety of our communities depend on it.

Prior recent related posts:

June 24, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Friday, June 23, 2017

US Sentencing Commission releases its proposed priorities for 2017-18 amendment cycle

Download (1)Because of reduced membership and election transitions, as reported here, the US Sentencing Commission decided not to promulgate guideline amendments in the 2016-17 amendment cycle.  (For a variety of reasons, I think this was a wise decision even though, as noted in this post from December 2016, just before a number of Commissioners' terms expired, the USSC unanimously voted to publish some ambitious proposed amendments for 2017.)  The USSC still has a reduced membership — it is supposed to have seven members and right now has only four — but that has not prevented it from now releasing an ambitious set of proposed priorities for 2017-18 amendment cycle.  Nearly a dozen priorities appear in this new federal register notice, and here area few that especially caught my eye (with some added emphasis in a few spots): 

[T]he Commission has identified the following tentative priorities:

(1) 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.

(2) Continuation of its multi-year study of offenses involving MDMA/Ecstasy, tetrahydrocannabinol (THC), synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone)....

(3) Continuation of its work with Congress and other interested parties to implement the recommendations set forth in the Commission’s 2016 report to Congress, titled Career Offender Sentencing Enhancements, including its recommendations to revise the career offender directive at 28 U.S.C. § 994(h) to focus on offenders who have committed at least one “crime of violence” and to adopt a uniform definition of “crime of violence” applicable to the guidelines and other recidivist statutory provisions.

(4) 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). The Commission also intends to release a series of publications updating the data in the 2011 report.

(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, including possibly amending Chapter Four and Chapter Five to provide lower guideline ranges for “first offenders” generally and to increase the availability of alternatives to incarceration for such offenders at the lower levels of the Sentencing Table....

(9) Continuation of its study of alternatives to incarceration, including (A) issuing a publication regarding the development of alternative to incarceration programs in federal district courts, and (B) possibly amending the Sentencing Table in Chapter 5, Part A to consolidate Zones B and C, and other relevant provisions in the Guidelines Manual....

(11) Consideration of any miscellaneous guideline application issues coming to the Commission’s attention from case law and other sources, including 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.

June 23, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

SCOTUS decides defendant can show prejudice from bad plea advice and prevail on Sixth Amendment claim even with no defense to charge

The Supreme Court this morning handed down three more opinions, and the one notable criminal case decided today was Lee v. United States, No. 16–327 (S. Ct. June 23, 2017) (available here). The Chief Justice wrote the opinion for the Court, which starts and ends this way:

Petitioner Jae Lee was indicted on one count of possessing ecstasy with intent to distribute.  Although he has lived in this country for most of his life, Lee is not a United States citizen, and he feared that a criminal conviction might affect his status as a lawful permanent resident.  His attorney assured him there was nothing to worry about — the Government would not deport him if he pleaded guilty.  So Lee, who had no real defense to the charge, opted to accept a plea that carried a lesser prison sentence than he would have faced at trial.

Lee’s attorney was wrong: The conviction meant that Lee was subject to mandatory deportation from this country.  Lee seeks to vacate his conviction on the ground that, in accepting the plea, he received ineffective assistance of counsel in violation of the Sixth Amendment.  Everyone agrees that Lee received objectively unreasonable representation. The question presented is whether he can show he was prejudiced as a result....

We cannot agree that it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial. But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial?  Almost certainly. If deportation were the “determinative issue” for an individual in plea discussions, as it was for Lee; if that individual had strong connections to this country and no other, as did Lee; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that “almost” could make all the difference. Balanced against holding on to some chance of avoiding deportation was a year or two more of prison time.  See id., at 6.  Not everyone in Lee’s position would make the choice to reject the plea. But we cannot say it would be irrational to do so.

Lee’s claim that he would not have accepted a plea had he known it would lead to deportation is backed by substantial and uncontroverted evidence.  Accordingly we conclude Lee has demonstrated a “reasonable probability that, but for [his] counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S., at 59.

Justice Thomas wrote a dissent joined by Justice Alito which gets started this way:

The Court today holds that a defendant can undo a guilty plea, well after sentencing and in the face of overwhelming evidence of guilt, because he would have chosen to pursue a defense at trial with no reasonable chance of success if his attorney had properly advised him of the immigration consequences of his plea.  Neither the Sixth Amendment nor this Court’s precedents support that conclusion.  I respectfully dissent.

June 23, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Thursday, June 22, 2017

"Jeff Sessions wants a new war on drugs. It won't work."

The title of this post is the headline of this new Washington Post commentary authored by David Cole, who is the national legal director of the American Civil Liberties Union, and Marc Mauer, who is executive director of the Sentencing Project. Here are excerpts:

Attorney General Jeff Sessions is right to be concerned about recent increases in violent crime in some of our nation’s largest cities, as well as a tragic rise in drug overdoses nationwide [“Lax drug enforcement means more violence,” op-ed, June 18].  But there is little reason to believe that his response — reviving the failed “war on drugs” and imposing more mandatory minimums on nonviolent drug offenders — will do anything to solve the problem.  His prescription contravenes a growing bipartisan consensus that the war on drugs has not worked. And it would exacerbate mass incarceration, the most pressing civil rights problem of the day.

Sessions’s first mistake is to conflate correlation and causation. He argues that the rise in murder rates in 2015 was somehow related to his predecessor Eric Holder’s August 2013 directive scaling back federal prosecutions in lower-level drug cases.  That policy urged prosecutors to reserve the most serious charges for high-level offenses.  Holder directed them to avoid unnecessarily harsh mandatory minimum sentences for defendants whose conduct involved no actual or threatened violence, and who had no leadership role in criminal enterprises or gangs, no substantial ties to drug trafficking organizations and no significant criminal history....  Sessions offers no evidence that this policy caused the recent spikes in violent crime or drug overdoses. There are three reasons to doubt that there is any significant connection between the two.

First, federal prosecutors handle fewer than 10 percent of all criminal cases, so a modest change in their charging policy with respect to a subset of drug cases is unlikely to have a nationwide impact on crime.  The other 90 percent of criminal prosecution is conducted by state prosecutors, who were not affected by Holder’s policy.  Second, the few individuals who benefited from Holder’s policy by definition lacked a sustained history of crime or violence or any connections to major drug traffickers.  Third, the increases in violent crime that Sessions cites are not nationally uniform, which one would expect if they were attributable to federal policy.  In 2015, murder rates rose in Chicago, Cleveland and Baltimore, to be sure.  But they declined in Boston and El Paso, and stayed relatively steady in New York, Las Vegas, Detroit and Atlanta.  If federal drug policy were responsible for the changes, we would not see such dramatic variances from city to city.

Nor is there any evidence that increases in drug overdoses have anything to do with shorter sentences for a small subset of nonviolent drug offenders in federal courts.  Again, the vast majority of drug prosecutions are in state court under state law and are unaffected by the attorney general’s policies.  And the rise in drug overdoses is a direct result of the opioid and related heroin epidemics, which have been caused principally by increased access to prescription painkillers from doctors and pill mills.  That tragic development calls for treatment of addicts and closer regulation of doctors, not mandatory minimums imposed on street-level drug sellers, who are easily replaced in communities that have few lawful job opportunities.

Most disturbing, Sessions seems to have no concern for the fact that the United States leads the world in incarceration; that its prison population is disproportionately black, Hispanic and poor; or that incarceration inflicts deep and long-lasting costs on the very communities most vulnerable to crime in the first place.... Advocates as diverse as the Koch brothers and George Soros, the Center for American Progress and Americans for Tax Reform, the American Civil Liberties Union and Right on Crime agree that we need to scale back the harshness of our criminal justice system.

Rather than expanding the drug war, Sessions would be smarter to examine local conditions that influence crime and violence, including policing strategies, availability of guns, community engagement and concentrated poverty.  Responding to those underlying problems, and restoring trust through consent decrees that reduce police abuse, hold considerably more promise of producing public safety. Sessions’s revival of the failed policies of the past, by contrast, has little hope of reducing violent crime or drug overdoses. 

Prior recent related posts:

June 22, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Today's SCOTUS CJ scorecard: government wins in two procedural cases, defendant wins in one substantive case

The Supreme Court this morning handed down opinions in three cases, all three of which involve intricate criminal law and procedure issues. I am going to copy and tweak here the summary of all the action from How Appealing for ease of exposition: 

1. Justice Elena Kagan delivered the opinion of the Court in Maslenjak v. United States, No. 16-309. Justice Neil M. Gorsuch issued an opinion, in which Justice Clarence Thomas joined, concurring in part and concurring in the judgment. And Justice Samuel A. Alito, Jr. issued an opinion concurring in the judgment. 

2. Justice Stephen G. Breyer delivered the opinion of the Court in Turner v. United States, No. 15-1503. Justice Kagan issued a dissenting opinion, in which Justice Ruth Bader Ginsburg joined. 

3. And Justice Anthony M. Kennedy delivered the opinion of the Court in Weaver v. Massachusetts, No. 16-240.  Justice Thomas issued a concurring opinion, in which Justice Gorsuch joined.  Justice Alito issued an opinion concurring in the judgment, in which Justice Gorsuch also joined.  And Justice Breyer issued a dissenting opinion, in which Justice Kagan joined. 

As the title of this post indicates, and as the pattern of votes suggests, the defendant prevailed in first of these listed cases, Maslenjak, which concerned the substantive reach of a federal criminal statute.  The government prevailed in the other two cases, one of which concerned the application of Brady (Turner) and the other of which concerned what types of errors can be found harmless in Strickland ineffective assistance analysis (Weaver).

For a variety of reasons, the procedural rulings on behalf of the government in Turner and Weaver seem like a much bigger deal than the Maslenjak ruling, perhaps especially because the government had won below in Turner and Weaver and so it could have been reasonably assumed that the Supreme Court took up the cases in order to reverse the outcome.  Also, of course, issues related to the application of Brady and Strickland impact so many cases, especially on collateral appeal.

Over at Crime & Consequences, Kent Scheidegger has this helpful summary post on all these cases simply and appropriately titled "Materiality."

June 22, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, June 21, 2017

Close examination of some JLWOP girls who should benefit from Graham and Miller

The latest issue of The Nation has two lengthy articles examining the application and implementation of the Supreme Court's modern juvenile offender Eighth Amendment jurisprudence.  Both are good reads, but the second one listed below covers especially interesting ground I have not seen covered extensively before.  Here are their full headlines, with links, followed by an excerpt from the second of the pieces: 

"The Troubled Resentencing of America’s Juvenile Lifers: When SCOTUS outlawed mandatory juvenile life without parole, advocates celebrated — but the outcome has been anything but fair" by Jessica Pishko

"Lisa, Laquanda, Machelle, and Kenya Were Sentenced as Children to Die in Prison: Decades later, a Supreme Court ruling could give them their freedom" by Danielle Wolffe

The country’s approximately 50 female JLWOP inmates represent a small fraction of the juvenile-lifer population, but the number of women serving life sentences overall is growing more quickly than that of men, according to a study by Ashley Nellis, a senior research analyst at the Sentencing Project. The women interviewed for this article also told me that they felt less informed about what was going on with their cases legally than their male counterparts.

The culpability of girls in their commission of crimes is often entwined with their role as caretakers for younger siblings. They’re also more likely to suffer sexual abuse during childhood. A 2012 study found that 77 percent of JLWOP girls, but only 21 percent of juvenile lifers overall, experienced sexual abuse. Internalized shame made them easier targets for violence by male correctional officers. From my own conversations with these women, many were teenage mothers who were separated from their babies shortly after giving birth. Others were incarcerated throughout their viable childbearing years.

I have been traveling the country to interview female juvenile lifers. Every time I visited one of these women in prison, I was haunted by the things we had in common. We were all approaching middle age. As a young adult, I too had gone off the rails and done dangerous things—the sort of things that could easily have gotten me arrested, even killed. Yet unlike the women I was interviewing, I had the option of leaving those aspects of my past behind.

The women I spoke with represent a distinct minority among juvenile lifers. They do not fit a narrative that is often centered around young men. Their stories are rarely told, even when the law demands it. The Miller and Montgomery decisions call for consideration of a teenager’s upbringing and maturation in prison, but as these women describe it, their experiences are rarely explored in depth in the courtroom. Instead, women’s resentencing is all too often shaped by ignorance and sexism. By interviewing these women, I hoped to share their unheard stories with the public. I hoped, too, that their unconventional stories might help us to reconsider our attitudes toward juvenile crime and rehabilitation—attitudes that still pervade the resentencing process.

June 21, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, June 20, 2017

Fascinating new OIG report examines implementation of former AG Holder's "Smart on Crime" initiative

I just came across this fascinating new report from the US Justice Department's Office of the Inspector General. The title of the lengthy report itself spotlights why the report is both fascinating and timely: "Review of the Department’s Implementation of Prosecution and Sentencing Reform Principles under the Smart on Crime Initiative." The full report runs 70 dense pages and even the executive summary is too lengthy and detailed to reproduce fully here. But these excerpts should whet the appetite of all sentencing nerds:

In August 2013, the U.S. Department of Justice (Department) and then Attorney General Eric H. Holder, Jr., announced the Smart on Crime initiative, which highlighted five principles to reform the federal criminal justice system. Smart on Crime encouraged federal prosecutors to focus on the most serious cases that implicate clear, substantial federal interests. In the first principle, the Department required, for the first time, the development of district-specific prosecution guidelines for determining when federal prosecutions should be brought, with the intent of focusing resources on fewer but the most significant cases. The second principle of Smart on Crime announced a change in Department charging policies so that certain defendants who prosecutors determined had committed low-level, non-violent drug offenses, and who had no ties to large-scale organizations, gangs, or cartels, generally would not be charged with offenses that imposed a mandatory minimum prison sentence.

The Office of the Inspector General (OIG) initiated this review to evaluate the Department’s implementation of the first two principles of Smart on Crime, as well as the impact of those changes to federal charging policies and practices. We assessed the 94 U.S. Attorney’s Office districts’ implementation and the impact of the Smart on Crime policy on not charging drug quantities implicating mandatory minimum sentences in circumstances where the defendants were low-level, non-violent offenders with limited criminal histories. We also assessed the implementation and impact of the policy that required prosecutors to consider certain factors before filing a recidivist enhancement that would increase the sentence of a drug defendant with a felony record pursuant to 21 U.S.C. § 851.

On May 10, 2017, the Attorney General issued a new charging and sentencing policy to all federal prosecutors that effectively rescinds the specific charging policies and practices outlined by Smart on Crime. We did not review this new policy as part of this review, which examined the implementation of the prosecution and sentencing reform principles under the Smart on Crime initiative....

We found that the Department made progress implementing the first two Smart on Crime principles, but we also identified several shortcomings in its efforts, including some failures to update national and local policies and guidelines and a lack of communication with local law enforcement partners regarding changes to these polices and guidelines in some instances.

We found that, while the Department issued policy memoranda and guidance to reflect its Smart on Crime policies, the U.S. Attorneys’ Manual (USAM), a primary guidance document for federal prosecutors, was not revised until January 2017, more than 3 years after Smart on Crime was launched, even though Department officials established a deadline of the end of 2014 to do so. Further, we determined that 74 of 94 districts had developed or updated their local policies to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions. Of the remaining 20 districts, some provided incomplete information to the OIG as to whether they had updated their prosecution guidelines or policy memoranda to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions in drug cases; in others, the district policies provided appeared to be inconsistent with the Smart on Crime policies in whole or in part; and some told us that they relied on the Holder memoranda for direction but did not develop or update any of their district policies or guidance documents to reflect the Smart on Crime policy changes.

We also found that 70 of 94 districts had incorporated Smart on Crime recidivist enhancement policy changes into their districts’ prosecution guidelines or policy memoranda. However, of the remaining 24 districts, 20 provided information to the OIG with respect to recidivist enhancements that appeared to be inconsistent with the 2013 Holder memoranda in whole or in part, or reported to the OIG that they followed the Holder memorandum but did not specifically revise their district policies to reflect Smart on Crime policy changes. The four remaining districts provided information that did not reflect the Smart on Crime policy changes on filing recidivist enhancements. Finally, we found that 10 districts failed to update their policies to reflect Smart on Crime policy changes with regard to both mandatory minimum charging decisions and recidivist enhancements....

We further found that the Department’s ability to measure the impact of the first two Smart on Crime principles is limited because it does not consistently collect data on charging decisions. For example, while the Legal Information Office Network System (LIONS), the U.S. Attorneys’ Offices’ case management system, allows federal prosecutors generally to track information about their cases, data fields relevant to Smart on Crime were not always present or updated.

Due to these limitations, the Department has relied on U.S. Sentencing Commission (USSC) data to assess the impact of the first two Smart on Crime principles. However, using USSC data to measure the impact of Smart on Crime’s charging policies is challenging because the USSC collects data from courts on sentencing decisions by judges and does not receive data from prosecutors about their charging decisions. In that regard, the USSC data does not allow assessments regarding charges that prosecutors could have brought but chose not to bring.

Nevertheless, based on our own analysis of USSC sentencing data over the period from 2010 through 2015, we found that sentencing outcomes in drug cases had shifted in a manner that was consistent with the first two principles of Smart on Crime. This was reflected by significantly fewer mandatory minimum sentences being imposed in drug cases nationwide, as well as a decrease in mandatory minimum sentences for those defendants who might otherwise have received such a sentence in the absence of the 2013 Holder memoranda....

We also found that some regions in the country diverged from these overall national trends. For example, while drug convictions decreased nationally by 19 percent, the decrease was far larger in the Southwest Border region. Further, the West, Pacific Northwest, and Hawaii and Island Territories regions actually showed increases in the number of drug convictions. As a result, we determined that national trends should not be interpreted in such a way as to conclude that Smart on Crime had a uniform impact across all the nation’s districts.

June 20, 2017 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wondering about judicial "wild-ass guesses" when considering child-porn restitution since Paroline

Long-time readers may recall a period about five year back when I was regularly blogging about notable federal district and circuit opinions struggling in various ways to figure out whether and how federal courts could impose restitution awards/punishments on federal offenders convicted only of downloading illegal images.  (As blogged here, a New York Times Magazine cover story in January 2013 nicely covered the legal and social issues involved in what was ultimately a sentencing question.)   Because the issue produced various splits in the lower courts, the Supreme Court took up and resolved the question in Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here).  

But while Paroline resolved some measure of legal uncertainty surrounding this child-porn restitution issue, it did so in a way that largely punted a host of factual challenges back to district courts at the time of sentencing.  This new local article in my local paper, headlined "Judge doesn’t want to guess on child-porn restitution," reminds me that Paroline did not really end the messy questions surrounding child-porn restitution determinations, it just made the litigation here much lower profile.  Here are excerpts from the local article:

U.S. District Judge Michael H. Watson doesn’t like “wild-ass guesses,” according to federal courts Reporter Earl Rinehart.

Watson presided over a restitution hearing last week during which a civil attorney representing a child pornography victim called “Andy” had petitioned Watson for $58,415 in damages.  The attorney’s client wasn’t the underage teen the defendant had photographed nude and was convicted for, but Andy’s picture was on the defendant’s computer.

In 2014, the U.S. Supreme Court ruled that child-pornography defendants could be liable to pay victims an amount proximate to the harm caused by having and/or distributing the image. Watson has said Congress needs to set standards to help judges calculate how much restitution to approve.  A bill that would set those minimum amounts was passed by the U.S. Senate but has languished in the House Judiciary Committee since February 2015.

Although he commended Assistant U.S. Attorney Heather Hill for her “valiant effort” in arguing for restitution, he agreed with Assistant Federal Public Defender Rasheeda Khan, who argued there was no evidence the defendant had shared Andy’s image and there was no way to accurately figure how much he owed now and for the victim’s future therapy costs. Another 158 defendants have either agreed to pay restitution to Andy or were ordered to do so.

Watson said the petition was based on a 2014 report that’s “not subject to cross examination” and “would not be admissible in a civil litigation.”

“There is no evidence Andy is a victim of this offense,” the judge said. He called again on Congress “to give us some direction.”

“It’s essentially a wild-ass guess for me to figure the appropriate restitution,” Watson said before denying any to Andy.

A few (of many) prior posts on Paroline and child porn restitution issues from years ago:

June 20, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Monday, June 19, 2017

By a 5-4 vote, SCOTUS decides failure of Alabama courts to provide expert mental health assistance to capital defendant was unreasonable

The Supreme Court handed down a notable split decision in a capital case this morning in McWilliams v. Dunn, No. 16-5294 (S. Ct. June 19, 2017)(available here). Justice Breyer authored the opinion for the Court for the usual coalition of Justices most skeptical of application of the death penalty, and that opinion starts this way:

Thirty-one years ago, petitioner James Edmond McWilliams, Jr., was convicted of capital murder by an Alabama jury and sentenced to death.  McWilliams challenged his sentence on appeal, arguing that the State had failed to provide him with the expert mental health assistance the Constitution requires, but the Alabama courts refused to grant relief. We now consider, in this habeas corpus case, whether the Alabama courts’ refusal was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. §2254(d)(1). We hold that it was.  Our decision in Ake v. Oklahoma, 470 U.S. 68 (1985), clearly established that, when certain threshold criteria are met, the State must provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” Id., at 83.  Petitioner in this case did not receive that assistance.

A sharp dissent in McWilliams, which runs longer than the majority opinion, is authored by Justice Alito (and joined by the newest Justice), and it starts this way:

We granted review in this case to decide a straightforward legal question on which the lower courts are divided: whether our decision in Ake v. Oklahoma, 470 U.S. 68 (1985), clearly established that an indigent defendant whose mental health will be a significant factor at trial is entitled to the assistance of a psychiatric expert who is a member of the defense team instead of a neutral expert who is available to assist both the prosecution and the defense.

The answer to that question is plain: Ake did not clearly establish that a defendant is entitled to an expert who is a member of the defense team.  Indeed, “Ake appears to have been written so as to be deliberately ambiguous on this point, thus leaving the issue open for future consideration.” W. LaFave, Criminal Law § 8.2(d), p. 449 (5th ed. 2010) (LaFave).  Accordingly, the proper disposition of this case is to affirm the judgment below.

The Court avoids that outcome by means of a most unseemly maneuver.  The Court declines to decide the question on which we granted review and thus leaves in place conflicting lower court decisions regarding the meaning of a 32-year-old precedent.  That is bad enough.  But to make matters worse, the Court achieves this unfortunate result by deciding a separate question on which we expressly declined review.  And the Court decides that factbound question without giving Alabama a fair opportunity to brief the issue.

June 19, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13)

SCOTUS summarily reverses Sixth Circuit reversal of Ohio death sentence

The US Supreme Court this morning issued this order list that did not include any grants of certiorari, but did include a summary reversal in the Ohio capital habeas case of Jenkins v. Hutton, No. 16-1116 (S. Ct. June 19, 2017) (available here).  Here are some key passages from this brief per curiam opinion: 

According to Hutton, the court gave the jurors insufficient guidance [when deciding on whether to recommend a death sentence] because it failed to tell them that, when weighing aggravating and mitigating factors, they could consider only the two aggravating factors they had found during the guilt phase.  Hutton, however, had not objected to the trial court’s instruction or raised this argument on direct appeal, and the District Court on federal habeas concluded that his due process claim was procedurally defaulted....

Nonetheless, the Sixth Circuit held that the [miscarriage of justice] exception justified reviewing his claim. The court gave two reasons: First, Hutton was not eligible to receive a death sentence because “the jury had not made the necessary finding of the existence of aggravating circumstances.” 839 F.3d, at 498–499.  And second, since the trial court “gave the jury no guidance as to what to consider as aggravating circumstances” when weighing aggravating and mitigating factors, the record did not show that the jury’s death recommendation “was actually based on a review of any valid aggravating circumstances.” Id., at 500....

The Sixth Circuit was wrong to reach the merits of Hutton’s claim.... Hutton has not argued that the trial court improperly instructed the jury about aggravating circumstances at the guilt phase.  Nor did the Sixth Circuit identify any such error. Instead, the instruction that Hutton contends is incorrect, and that the Sixth Circuit analyzed, was given at the penalty phase of trial.  That penalty phase instruction plainly had no effect on the jury’s decision — delivered after the guilt phase and pursuant to an unchallenged instruction — that aggravating circumstances were present when Hutton murdered Mitchell.

The Sixth Circuit’s second reason for reaching the merits rests on a legal error.  Under Sawyer, a court may review a procedurally defaulted claim if, “but for a constitutional error, no reasonable jury would have found the petitioner eligible for the death penalty.”  505 U.S., at 336 (emphasis added).  Here, the alleged error was the trial court’s failure to specify that, when weighing aggravating and mitigating factors, the jury could consider only the aggravating circumstances it found at the guilt phase.   Assuming such an error can provide a basis for excusing default, the Sixth Circuit should have considered the following: Whether, given proper instructions about the two aggravating circumstances, a reasonable jury could have decided that those aggravating circumstances outweighed the mitigating circumstances.

June 19, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22)

Thursday, June 15, 2017

"Support Grows for Civil Commitment of Opioid Users"

The title of this post is the headline of this notable new Stateline article.  Here is how it gets started:

Amid an opioid addiction epidemic that is killing more than 90 Americans every day, there is a growing movement to make it easier for relatives and health care providers to quickly secure court orders to forcibly confine and treat people who are addicted to drugs.  Most states have civil commitment laws primarily designed to protect people with mental illness from themselves and others.  Many of the laws include drug addiction and alcoholism as a justification for temporary confinement, or at least don’t preclude it.

But in practice, most commitment laws have been ineffective when it comes to people who use heroin and other opioids, in part because some judges have been leery of taking away a person’s civil liberties for what society has long perceived as a moral failing.  Unlike people with severe mental illness, people who are addicted to drugs typically retain the mental capacity to take care of their basic needs, even though the chronic disease alters the brain, making the person eventually value drug use above all else.

New Hampshire, Pennsylvania and Washington are considering new civil commitment laws specifically designed for opioid use.  Kentucky has gone back to the drawing board after failing to enact a commitment law for opioid addiction last year.

And in Massachusetts, the one state where civil commitment has been used extensively for opioid addiction, Republican Gov. Charlie Baker wants to make it even more common....

Historically, confining people against their will has been fraught with moral and legal ambiguities and haunted by reports of abuse.  But the parents of young adults who use opioids are pushing state lawmakers and governors to make intervention easier, even as physicians and state health officials search for ways to break the cycle of repeated overdoses.

Addiction professionals generally agree that civil commitment can save lives. But they argue that without effective treatment, confining people with an addiction may do more harm than good.  “People who use substances and have addictions still have civil rights,” said Dr. Alex Walley, director of an addiction medicine fellowship at Boston Medical Center.  “The real question is whether effective treatment is available, which in the case of opioids, is going to be medication. And it’s not OK to limit it to just one medicine,” Walley said.  Another concern is whether the state can ensure that continued treatment will be available once the person is released, he said.

June 15, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Wednesday, June 14, 2017

Fair Punishment Project starts "In Justice Today" to look closely at work of prosecutors

Via email I was alerted to the creation of "In Justice Today," a new publication of the Fair Punishment Project at Harvard Law School.  This introductory post explains the vision and goals of this notable new resource:

Ask yourself who are the most powerful people in the community in which you live and many might think of the mayor, the city council president, the owner of the local sports team, maybe the superintendent of schools.

But in many ways all of those people are trumped by the local elected prosecutor. The mayor and superintendent cannot send cops into your home and march you downtown in handcuffs, the prosecutor can do that.  They have the power to put people in jail, to choose not to bring charges, to seek the maximum sentence for one person while letting someone else off with a warning while determining which type of crimes will be prioritized while others will be ignored.

That’s an awesome and terrifying power, and how prosecutors wield that power can impact numerous lives and determine what type of community we all live in.  But in most communities, the prosecutor is an unknown figure.  Until recently most prosecutors enjoyed something close to a lifetime appointment. Rarely getting much attention or scrutiny....

Our goal is simple, we want to hold actors in the criminal justice system accountable for their actions.  Whether it’s a prosecutor putting a rape victim in jail when she doesn’t want to testify, a judge sentencing a young kid to 63 years in jail for driving with a suspended license, a DA charging a 12-year-old with a crime and putting them in the adult prison system, or continuing the prop up a death penalty system that becomes more ridiculous and cruel every day this blog will be looking for injustice and pointing the finger at the person who is most responsible.

June 14, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Might judicial estoppel continue to preclude Ohio from moving forward with a three-drug lethal injection protocol?

As previously noted here, today is the day for the Sixth Circuit oral argument in its rehearing en banc of the State of Ohio's appeal of a lower court stay blocking Ohio from using its latest three-drug protocol to execute condemned murderers.  One basis for stay, as reported here, was the plan for Ohio to use midazolam as the first drug in its three-drug execution protocol.  But some recent uneventful executions by other states using midazolam may serve to make this foundation for the stay weaker than it was earlier this year.  So another issue sure to come up in this argument is the capital defendants' claim, also adopted in the initial stay order, that Ohio is judicially estopped from using a three-drug execution protocol after having years ago forsworn such a plan in favor of one-drug execution plans.

In this recent post at the ACS blog, titled "Ohio’s Lethal Flip Flop: Court Should Hold State To Consistent Legal Position on How To Execute," Virginia Sloan makes the case for the judicial estoppel arguments to block Ohio's execution plans.  Here are excerpts:

Outside of the legal profession, judicial estoppel, or the doctrine that prevents a party to a lawsuit from taking inconsistent positions about the same issue at different phases of the legal proceeding, is not particularly well-known. However, it speaks to the core value of integrity in the judicial system, preventing misuse of the courts and promoting equity among litigants. Non-attorneys unfamiliar with the legal doctrine of judicial estoppel need look no further than pending lethal injection litigation in Ohio to understand its crucial importance in our system.

In a remarkable series of losses and appeals, Ohio state officials are currently attempting to convince yet another federal court to allow them to use a lethal injection protocol which is in direct violation of representations state officials made eight years ago in order to prevail at an earlier phase of the ongoing litigation....

After [a] failed execution, and facing an imminent trial in July 2010 on the prisoners’ challenges to Ohio’s three-drug lethal injection method, Ohio announced in November 2009 that it would never again use the paralytic drug pancuronium bromide and potassium chloride in executions. State officials represented they would use a one-drug, barbiturate-only method instead. The same day Ohio announced this change, it filed a motion for summary judgment in the pending litigation, asking the federal court to dismiss all challenges to the three-drug protocol because, as the State argued, the change in execution drugs meant the claims about the two painful drugs were “moot.” The State’s filing unequivocally declared “there is no possibility here that the allegedly unconstitutional conduct will reoccur.” The federal courts accepted Ohio’s argument, and its representations, with the Sixth Circuit explicitly holding that “any challenge to Ohio’s three-drug execution protocol is now moot.” With the prisoners’ constitutional claims thus mooted in this way, the State proceeded to carry out 20 executions over the next eight years, including that of Mr. Biros in December 2009.

Fast forward to October 2016: Ohio reneged on its promises. State officials announced that their “new,” three-drug protocol will again include a paralytic and potassium chloride. Unsurprisingly, the courts did not look favorably upon Ohio’s flip-flopping. In his order, following a five-day evidentiary hearing in 2017, U.S. Magistrate Judge Michael R. Merz wrote that “the position the State of Ohio now takes — that it will execute [prisoners] using a paralytic agent and potassium chloride — is completely inconsistent with the position it took on appeal in Cooey (Biros) and on remand from that decision before Judge Frost. Ohio prevailed on its contrary position and is now judicially estopped from re-adopting a paralytic agent and potassium chloride as part of the Execution Protocol.”  On April 5, 2017, a three-judge panel from the U.S. Court of Appeals for the Sixth Circuit agreed, upholding the preliminary injunction.

The State petitioned for the full court to hear the case, and in coming weeks, Ohio will try for the third time to explain why it is acceptable to render litigation moot by making one representation, and then later in that same litigation to propagate actions in contravention of that representation.

Judicial estoppel prevents parties from manipulating legal proceedings, requiring parties to maintain consistency within the course of litigation. The changing of positions based on convenience or “exigencies of the moment” is not authorized by law, and is particularly reprehensible when the issue at hand is one of life or death. Ohio apparently needs a third ruling to remind officials that what they promised the federal courts in 2009 still binds them in 2017. The law demands that the State devise an execution protocol consistent with its word.

Even without hearing the outcome of today's oral argument, I am predicting that this judicial estoppel claim does not end up carrying the day with the full en banc Sixth Circuit.  Ohio officials are claiming that they have returned to a three-drug execution protocol because of a state legal obligation to carry out lawful death sentences AND a constitutional obligation to carry out executions in the least painful way possible. If Ohio officials reasonably and accurately assert they had to return to a three-drug protocol to comply with these obligations, I doubt the full Sixth Circuit will conclude a prior litigation position must now thwart these efforts.  

June 14, 2017 in Baze and Glossip lethal injection cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Monday, June 12, 2017

Notable report of Missouri parole board playing a version of "turkey bingo" during hearings with inmates

I just noticed an interesting report from the St. Louis Post-Dispatch about an intriguing controversy swirling around Missouri's parole board.  Here are links to two lengthy stories about the controversies and their first few paragraphs:

"Missouri parole board played word games during hearings with inmates"

The Missouri Board of Probation and Parole allegedly toyed with prisoners during hearings by trying to get them to say a chosen word or song title of the day, such as “platypus” and “Hound Dog.”

Don Ruzicka, a member of the seven-member board, along with an unnamed government employee were accused of keeping score during the hearings, according to a Department of Corrections inspector general report completed on Nov. 1, 2016. Each time one of them used a predetermined keyword while interviewing an offender they earned a point. Two points were granted if the offender repeated the word. Occasionally, the duo spiced the game up by wearing matching clothing, like the time they dressed in black shirts, ties, pants and shoes.

The Roderick and Solange MacArthur Justice Center at St. Louis recently obtained the state report and released it Thursday after a news conference, asserting that public servants “played games with people’s lives and liberty.”

"Officials insist Missouri parole board takes job seriously despite games played during hearings"

The day after a human rights law firm called on Republican Gov. Eric Greitens to remove former state Rep. Don Ruzicka from the Missouri Board of Probation and Parole for toying with inmates during hearings, two top prison officials stood by the panel on Friday.

A previously undisclosed state investigation found that Ruzicka and an unidentified Department of Corrections employee entertained themselves at some parole hearings by trying to get inmates to say words and song titles such as “platypus” and “All My Rowdy Friends Are Coming Over Tonight.” They even kept score.

“We have very credible members who take their job seriously,” insisted Parole Board Chairman Kenneth C. Jones, who is also a former Republican state representative as well as a former sheriff. “There is no joking around. It’s a very serious job.”

June 12, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Sunday, June 11, 2017

"From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice"

The title of this post is the title of this notable new book, authored by William Kelly, Robert Pitman and William Streusand, that a helpful reader made sure I noticed.  Here is description via the book's Amazon page:

Over the past fifty years, American criminal justice policy has had a nearly singular focus -- the relentless pursuit of punishment.  Punishment is intuitive, proactive, logical, and simple. But the problem is that despite all of the appeal, logic, and common sense, punishment doesn't work.  The majority of crimes committed in the United States are by people who have been through the criminal justice system before, many on multiple occasions.
There are two issues that are the primary focus of this book.  The first is developing a better approach than simple punishment to actually address crime-related circumstances, deficits and disorders, in order to change offender behavior, reduce recidivism, victimization and cost.  And the second issue is how do we do a better job of determining who should be diverted and who should be criminally prosecuted.
From Retribution to Public Safety develops a strategy for informed decision making regarding criminal prosecution and diversion.  The authors develop procedures for panels of clinical experts to provide prosecutors with recommendations about diversion and intervention.  This requires a substantial shift in criminal procedure as well as major reform to the public health system, both of which are discussed in detail.
Rather than ask how much punishment is necessary the authors look at how we can best reduce recidivism. In doing so they develop a roadmap to fix a fundamentally flawed system that is wasting massive amounts of public resources to not reducing crime or recidivism.

June 11, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Saturday, June 10, 2017

Is adequate due process for capital cases "arguably impossible"?

The question in the title of this post is prompted by this San Francisco Chronicle editorial complaining about the prospect that the state of California might try to give effect to the voter initiative passed in the Fall, Proposition 66, intended to try to get the state's death penalty operational again.  Here are excerpts from the editorial, headlined "California should not speed up death penalty," which concludes with the phrase quoted in the title of this post:

Voters last fall narrowly approved Proposition 66, which sets a deadline for court review of capital-punishment appeals and takes other steps to restart a capital punishment machine that ground to a halt a decade ago. Fortunately, the state’s Supreme Court justices, who are considering a challenge to the initiative, have expressed appropriate doubts.

Efforts to prevent wrongful or torturous executions have slowed or stopped executions in many states as attorneys wrangle over challenges to convictions, court procedures and killing methods. The delays inevitably suggest one of two diametrically opposed political solutions: ending executions or expediting them. California voters rejected death penalty abolition and supported acceleration.

The constitutional amendment they approved sets a five-year deadline for each of two stages of death penalty appeals, which would shorten the average appeal by several years. With some 750 prisoners on Death Row and a backlog of more than 300 appeals, the justices noted, that would substantially shift court resources toward capital punishment and away from all other cases.

Prop. 66 also attempts to force more defense attorneys to take on capital cases, raising questions about how many of them would be qualified and eager to do so. Another provision would curtail review of lethal-injection procedures; California stopped executions in 2006 amid claims that its drug cocktail caused cruel and unusual punishment, and the state has yet to devise a new protocol.

The trouble with all these execution-efficiency measures is that they add up to an assault on the level of due process the death penalty requires, which is at least extraordinary and arguably impossible.  Barriers to carrying out the death penalty have their roots in serious questions about its irreversibility, arbitrariness and immorality.  Executing prisoners more quickly is exactly the wrong answer to those questions.

I understand all sorts of variations on abolitionist arguments, but I am sometimes troubled this notion that it is "arguably impossible" to provide capital cases with sufficient due process.  Recent high-profile federal and state capital cases involving Dzhokhar Tsarnaev (Boston Marathon bomber) and James Holmes (Aurora mass shooter) provide good examples of mass murderers getting plenty of process. Of course, if a jurisdiction is trying to secure many hundreds of death sentences every year, it is certainly possible (perhaps even likely) that a kind super due process would not be provided in every case.  But still, as long-time readers know well, I generally worry a lot more about lesser criminals not getting much process at all than about modern capital defendants not getting enough procedural protections.

June 10, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (27)

Friday, June 09, 2017

"Measuring the Creative Plea Bargain"

The title of this post is the title of this interesting-looking paper authored by Thea Johnson available via SSRN. Here is the abstract:

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining.  But what is a good deal?  And how do defense attorneys secure such deals?  Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence.  Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea.  Through in-depth interviews with twenty-five public defenders in four states, I investigate the ways in which collateral consequences impact the negotiation of the plea.  What emerges is a picture of creative plea bargaining that takes into account a host of noncriminal sanctions that fall outside of the charge and sentence.  Public defenders assess the priorities of their clients — regarding both the direct and collateral consequences of the case — and piece together pleas that meet these varied needs.  The length of sentence after a plea does not tell the full story about whether a defendant got a good deal because a successful plea now encompasses much beyond the final sentence.

These findings have broad implications for the way we think about assessing public defense offices and individual defenders.  Much of what goes into a plea — particularly at the misdemeanor level — is a product of the client’s desire to avoid certain collateral consequences, and those desires generally do not enter the formal record or off-the-record negotiations with prosecutors.  As a result, pleas that look bad on paper may actually be meeting the needs of the client.  Therefore, in order to assess pleas and the defenders who negotiate them, we must understand the limits of publicly available data and focus on creating a more robust data set by which to judge public defenders.  Additionally, this Article provides a fuller picture of prevailing professional norms at the plea phase after Padilla, Lafler, and Frye.  As courts grapple with the role of the defense attorney during plea bargaining, it is critical that they understand that in many cases lawyers achieve optimal outcomes by providing advice and advocacy for their clients on concerns outside of the immediate criminal case.  Finally, this Article serves as a renewed call for attention and funding for the holistic model of public defense.

June 9, 2017 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, June 08, 2017

"Neither Justice Nor Treatment: Drug Courts in the United States"

PhrThe title of this post is the title of this notable new report issued by the group Physicians for Human Rights. Here is an excerpts from the report's executive summary:

U.S. drug courts [are] specialized courts within the criminal justice system set up to provide alternative sentencing options — treatment instead of jail or prison time — for people charged with criminal behavior linked to drug possession, sale, or addiction.  The first courts were opened in 1989 to ease dockets and jails that were overflowing as a result of strict federal and state laws passed in the 1980s in an attempt to reduce drug supply and consumption.

Almost three decades later, there are more than 3,100 drug courts operating in the United States.  But while the courts’ proponents say they reduce recidivism for people with substance use disorders, critics say the system abuses due process, often mandates treatment for people who don’t actually need it — people without drug dependence — and fails to provide quality care to many who do.

Physicians for Human Rights (PHR) assessed the availability and quality of substance use disorder treatment through drug courts in three states — Florida, New Hampshire, and New York, chosen for the diversity of their drug court and health system approaches — and found major obstacles to quality evidence-based treatment for drug court participants in all three states.  Overall, PHR found that drug courts largely failed at providing treatment to those who truly needed it, and filled up limited treatment spaces with courtmandated patients who didn’t always need the care.  In many cases, court officials with no medical background mandated inappropriate treatment not rooted in the evidence base, or mandated treatment for people who didn’t need it.  In all cases, the functioning and mandate of the drug courts posed significant human rights concerns.

At the most basic level, PHR found that access to quality treatment was hampered by the inherent tension between a punitive criminal justice logic and therapeutic concern for drug court participants as patients.  In fact, despite the stated intention of drug courts to treat people who use drugs as ill rather Executive Summary than deviant, drug court participants were often punished for relapsing, missing therapy appointments, or otherwise failing to follow court rules.

One key concern motivating this research was whether drug courts were able to appropriately diagnose and facilitate treatment for people with substance use disorders who are in conflict with the law.  We found that, in many cases, they were not.  Diagnosis and initial treatment plans for drug court participants were often developed by people with no medical training or oversight, at times resulting in mandated treatment that was directly at odds with medical knowledge and recommendations.  The most egregious example of this was the refusal, delay, or curbing of medication-assisted treatment (MAT) (also known as substitution or replacement therapy) to people with opioid use disorders, despite evidence that treatment for such disorders in many cases requires long-term — sometimes permanent — medication.  Some drug courts also prevented participants from accessing or staying on medically prescribed treatment for anxiety, Attention Deficit Hyperactivity Disorder, and other chronic health problems.

Human rights concerns are thus particularly relevant for drug courts, as these courts blur the line between voluntary and coerced treatment, and compel participants to waive the right to confidentiality.  Furthermore, most drug courts operate with regulations that subject medical expertise and advice regarding treatment to prosecutorial oversight and potential veto, raising questions about a person’s ability to access impartial evidencebased care.  Even where courts did not actively violate human rights protections of their participants, the regulatory set-up constantly threatened such violations.

June 8, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (6)

"Facial Profiling: Race, Physical Appearance, and Punishment"

The title of this post is the title of this notable new empirical paper authored by Brian Johnson and Ryan King.  Here is the abstract:

We investigate the associations among physical appearance, threat perceptions, and criminal punishment.  Psychological ideas about impression formation are integrated with criminological perspectives on sentencing to generate and test unique hypotheses about the associations among defendant facial characteristics, subjective evaluations of threatening appearance, and judicial imprisonment decisions.

We analyze newly collected data that link booking photos, criminal histories, and sentencing information for more than 1,100 convicted felony defendants.  Our findings indicate that Black defendants are perceived to be more threatening in appearance.  Other facial characteristics, such as physical attractiveness, baby-faced appearance, facial scars, and visible tattoos, also influence perceptions of threat, as do criminal history scores.  Furthermore, some physical appearance characteristics are significantly related to imprisonment decisions, even after controlling for other relevant case characteristics.  These and other findings are discussed as they relate to psychological research on impression formation, criminological theories of court actor decision-making, and sociological work on race and punishment.

June 8, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Wednesday, June 07, 2017

Four Senators write to AG Sessions with pointed questions about the Sessions Memo on charging and sentencing

As detailed in this press release from Senator Mike Lee, "Sens. Mike Lee (R-UT), Dick Durbin (D-IL), Cory Booker (D-NJ), and Rand Paul (R-KY) sent a letter to Attorney General Jeff Sessions Wednesday, seeking answers about the Department of Justice’s May 10, 2017 memorandum, directing federal prosecutors to pursue the most serious offense possible when prosecuting defendants."  The three-page letter is available at this link, and it starts this way:

We write concerning the Department of Justice's May 10, 2017 memorandum directing federal prosecutors to "pursue the most serious, readily provable offense." The Department's new policy ignores the growing bipartisan view that federal sentencing laws are in grave need of reform.  In many cases, the new policy will result in counterproductive sentences that do nothing to make the public safer. And it appears to force the hand of the prosecutors closest to each case to seek the highest possible offense rather than enable them to determine an appropriate lesser charge, which can help guard against imposing excessive sentences.

Among the six pointed questions (with sub-questions) that end the letter are these that strike me as especially interesting:

Pursuant to the Department's new policy, prosecutors are allowed to apply for approval to deviate from the general rule that they must pursue the most serious, readily provable offense.  The memo, however, does not explain how the Department will decide whether to grant approval to deviate from the general rule.  What factors will the Department consider in making these decisions? How often do you anticipate that prosecutors will request approval to deviate from the Department's charging policy? How often do you expect such requests will be granted?  Will Main Justice track how frequently attorneys seek departures from the new policy?

Are there any federal criminal offenses carrying mandatory minimum sentences that you believe are unfair?  Do you believe that all applications of 18 U.S.C. § 924(c) result in fair sentences?  If the answer to either of those questions is "no," why do you believe the Department's new policy allows enough discretion to individual prosecutors to result in fair outcomes in cases implicating these statutes?

 Prior recent related posts: 

June 7, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Spotlighting the continued challenges for juve lifers like Henry Montgomery even after SCOTUS victories in Miller and Montgomery

Mother Jones has this notable new article about Henry Montgomery and other juveniles who are still fighting to get relief after seemingly helpful recent Supreme Court Eighth Amendment rulings. The full headline of this piece is "The Supreme Court Said His Prison Sentence Was Unconstitutional. He’s Still Behind Bars. Despite a ruling in their favor, Henry Montgomery and other juvenile lifers are no closer to getting out."  Here are excerpts:

But although the Supreme Court often appears all-powerful, its clout is more limited than it seems. Nearly 18 months after his victory, Montgomery is still sitting in Angola, and there’s no guarantee that he — or many of the roughly 1,000 others serving similar sentences across the country — will ever get out....

Montgomery’s saga began in November 1963 in East Baton Rouge, Louisiana, during a turbulent time of racial tensions, Ku Klux Klan activity, and cross-burnings. Montgomery, who is African American, was in 10th grade and playing hooky when he encountered the local sheriff, Charles Hurt, who was white. In a panic at being caught out of school, Montgomery allegedly shot and killed Hurt with his grandfather’s gun, which he had stolen....

[If sentenced today], Montgomery would be allowed to present evidence of mitigating circumstances, and his lawyers could argue that his youth and mental disability — he had an IQ of around 70 — should be grounds for a reduced sentence. Instead, a state appellate court upheld his mandatory life sentence, and that was the end of his contact with a lawyer for decades to come....

In 2012, the US Supreme Court offered juvenile lifers such as Montgomery a glimmer of hope. In Miller v. Alabama, a case of two men who’d been sentenced to mandatory life without parole for crimes they committed at the age of 14, the court ruled 5-4 that such sentences were unconstitutional. Mandatory life without parole violated the Eighth Amendment prohibition on cruel and unusual punishment, the court said, because such sentences failed to recognize that adults differ from children, who have “diminished culpability and greater prospects for reform.” The court held that life-without-parole sentences should be used only for “the rare juvenile offender whose crime reflects irreparable corruption.”

The decision set off a flurry of litigation by inmates incarcerated as children who argued that the Miller decision should be applied retroactively. Montgomery filed a petition to have his sentence overturned without the help of a lawyer, but the Baton Rouge public defender’s office eventually took up his case. The local district attorney fought him every step of the way, and he lost in all the state appeals courts. But in 2015, the US Supreme Court agreed to hear his case.

In January 2016, the court ruled in Montgomery’s favor, with Kennedy writing that the decision, which gave juvenile lifers a shot at parole, “would afford someone like Montgomery, who submits that he has evolved from a troubled, misguided youth to a model member of the prison community, the opportunity to demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.”

But the decision was only the beginning of Montgomery’s fight.  The Supreme Court decision gave states a lot of leeway in how they handle cases like Montgomery’s and punted the details to lower-court judges and state legislators.  In Louisiana, a judge could reduce Montgomery’s sentence to life with parole, but that would leave his fate to Louisiana’s notoriously stringent parole board, which could deny him release.  The Supreme Court also left room for judges to simply resentence eligible inmates to life without parole by declaring them irreparably corrupt. And that’s exactly what the Baton Rouge district attorney pushed for in Montgomery’s case....

Montgomery’s case has languished in part because the state didn’t know quite how to handle Louisiana’s 300 juvenile lifers who’d won the right to resentencing.  Should an inmate have a full-blown sentencing hearing that would resemble those used in capital cases?  And who should decide the outcome, a jury or a judge?  The courts put Montgomery’s case on hold while the state Legislature considered a bill that would automatically grant juvenile lifers a shot at parole after they’d served 30 years in prison.  But the bill died last summer, and although it’s been taken up again this year, the courts have decided to move forward without any new legislation.  Some juvenile lifers have been able to win plea bargains that freed them, but they aren’t the majority.

Working against Montgomery is the fact that the adult children and grandchildren of his victim have been involved in the process and are opposed to his release....

Montgomery is one of many juvenile lifers whose sentences remain in limbo after the Supreme Court decision. Michigan, for example, has about 350 juvenile lifers behind bars. Since the Supreme Court decision in Montgomery, the state has begun resentencing them.  [Juvenile Law Center's Marsha] Levick says that in about 85 percent of those cases, prosecutors are again seeking life without parole.  In one jurisdiction, the local prosecutor is the same former judge who sentenced many of the inmates to life in the first place. She has requested new life sentences for 44 of 49 inmates serving life without parole for murders they committed before the age of 18....

Jody Kent Lavy, executive director of the Campaign for Fair Sentencing of Youth, visited Montgomery in Angola earlier this year and says that because of the resistance of states like Louisiana and Michigan to implementing the Montgomery decision, the high court really “needs to take another step to bar life without parole [for juveniles] outright.”  She notes that local district attorneys are usually elected, and so the Montgomery decision “still leaves room for racially charged decisions, politically motivated decisions, as opposed to what is fair.  It keeps me up at night.”

A state court judge heard Montgomery’s case last month and promised a decision by late June.

June 7, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)