Tuesday, November 21, 2017

Senator Mike Lee explains how "conservative approach to lawmaking" drives his advocacy for federal sentencing reforms

Lee_1x1Pew's Public Safety Performance Project has this notable new Q&A with Mike Lee under the subheading "A U.S. senator and former assistant U.S. attorney discusses crime and punishment, and how his views on both have changed."  I recommend the entire Q&A, and the final three Qs and As struck me as worth reprinting here:

Q: How has your conversion on criminal justice influenced your career?

A: When I got to the Senate, I remembered what that [Judge Paul Cassell in the Angelos case] had said, and I realized that I had become one of the people who could help fix this problem.  So that’s what I decided to do.  I knew it wouldn’t necessarily be easy, but I also knew it was important.  So I started looking for allies, and that led me to team up with Sen. Dick Durbin (D-IL) on our legislation.  It’s easy to say you want to be tough on crime and go along with any and every attempt to increase penalties, including minimum mandatory penalties. But to be effective, a criminal justice system must be seen as legitimate.  And for too long, our federal sentencing laws have required punishments that just don’t fit the crime.

Q: Have you encountered any interesting reactions to the change in your views?

A: Most of it is encouraging. Most people I talk to, regardless of where they are on the political spectrum, are glad that somebody is doing this. And they’re glad to see me involved. There are some who aren’t. There are some who get upset and pound their chest and say, “You need to take criminals and lock them up and you need to throw away the key. We’ve got to be harder on crime and harder on criminals rather than softer.” So yes, there are those who take that approach, and most of those people would probably describe themselves as conservatives. Regardless of whether you consider that a conservative approach or not, I don’t think it’s a particularly thoughtful one. I don’t think it’s a particularly helpful one. It does us no good to be harsh just for the sake of harshness.  Harshness itself isn’t an end objective.  We want to be smart in the way we punish crime.  We want to be effective. Public safety is the end result we’re trying to achieve.

Q: Any final thoughts?

A: Some people ask me, “Why are you doing this even though you’re a Republican? And a conservative Republican at that?”  And the answer is that I don’t view criminal justice reform as incompatible with being a conservative; in fact, I’m doing this because I’m a conservative. Conservatives purport to be conservative because, among other things, conservatives believe we should take great care when government intervenes to deprive someone of liberty or property.  There’s no greater due process deprivation than when the government puts someone away, either wrongfully or for a longer period of time than is just.  So for me, this is a natural outgrowth of my conservative approach to lawmaking.

November 21, 2017 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5)

Saturday, November 18, 2017

"Justice for Veterans: Does Theory Matter?"

The title of this post is the title of this new paper I just saw on SSRN authored by Kristine Huskey. Here is the abstract:

The Veterans Treatment Court (“VTC”) movement is sweeping the nation.  In 2008, there were approximately five courts.  Currently, there are over 350 VTCs and veteran-oriented tracks in the United States.  Most view this rapid proliferation as a positive phenomenon.  VTC growth, however, has occurred haphazardly and most often without deliberate foundational underpinnings.

While most scholars assume that a therapeutic jurisprudence (“TJ”) modality is the paradigm for VTCs, there has been little examination of other theories of justice as appropriate for veterans and the courts that treat them.  This Article addresses whether an alternative theory of justice — specifically, restorative justice (“RJ”) — can inform the theoretical foundation of a VTC to enhance its beneficial impact on veterans with post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), or substance abuse issues.  A primary feature of the RJ philosophy is that it is community-driven: it involves the victim, offender, and “community of interests” in the solution, process of restoration, and prevention of future misconduct.

These principles are well suited for a VTC, which is also collaborative, community-based, and places extreme importance on the reintegration of the veteran back into society.  These characteristics stem from an evolved theory that the community is ultimately responsible for the misconduct that was caused by the defendant’s military service. A hypothetical criminal case common in a VTC illustrates that RJ principles and framework may enhance the beneficial impact of VTCs.  RJ may be just the theory of justice that brings to bear Sebastian Junger’s notion of a tribe as a means for the successful reintegration of veterans back into the community.

November 18, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Friday, November 17, 2017

New ACLU poll suggests significant interest in criminal justice reform

This ACLU posting, headlined "ACLU Poll Finds Americans Reject Trump’s Tough-on-Crime Approach," reports on the result of notable new poll with notable new findings. Here are excerpts from the posting:

In a rejection of President Trump and Attorney General Jeff Sessions' tough-on-crime approach, a new ACLU poll finds that a large majority of Americans believe the criminal justice system is unjust and needs to be significantly reformed.

Nine out of 10 Americans from across the political spectrum told our pollster that our criminal justice system needs fixing. This is an astounding number, but the results are even more impressive when you drill down into them. They show that criminal justice reform is a political issue the American people care about....

Our polling shows that Americans are uncomfortable with the land of the free putting so many of its people behind bars, particularly when two out of three respondents do not believe that the criminal justice system treats Black people fairly. Seventy-one percent of respondents said that the United States should reduce its prison population.

This support remained strong across people with very different political beliefs. Eighty-seven percent of Democrats, 67 percent of independents, and 57 percent of Republicans all agreed that we should reduce our prison population. But one of the most encouraging signs that Americans have had enough of mass incarceration is that 52 percent of Trump voters said it was important to reduce the size of the prison population.

Most people polled also believed that mass incarceration wasn’t just a serious problem but counterproductive. Seventy-one percent of respondents agreed that “sending someone to prison for a long sentence increases the chances that he or she will commit another crime when they get out because prison doesn’t do a good job of rehabilitating problems like drug addiction and mental illness.” This includes 68 percent of Republicans and 65 percent of Trump voters. Bleeding-heart liberals they are not.

Americans also don’t want their prisons full of people with mental health disabilities. Eighty-four percent of respondents said that people with mental health disabilities belong in mental health programs instead of prison.

Two in three Americans would be more likely to vote for candidates who supported reducing the prison population and using the savings to reinvest in drug treatment and mental health programs, including 65 percent of Trump voters. And 72 percent said that they would be more likely to vote for an elected official who supports eliminating mandatory minimum laws. This is in direct contrast to the agenda pushed forward by President Trump and Attorney General Session, who have supported more mandatory minimums.

The majority of Americans recognize racial bias in the criminal justice system. Fifty-five percent of Americans agree that racism in policing, prosecution, and sentencing are responsible for racial disparities in our nation’s prisons and jails....

Sixty-one percent of Americans believe that people who have committed crimes involving violence can turn their lives around. Sixty-one percent of Americans also believe that people who suffer from drug addiction and commit serious crimes don’t belong in prison but should be in rehabilitation programs where they can receive treatment. And nearly nine out of 10 respondents believe that when people with mental health disabilities commit crimes that involve violence they should be sent to mental health programs where they can receive treatment from professionals.

The full ACLU poll producing these results are available at this link.  Because of the structure of some of the questions asked in this poll, I am not entirely convinced that there is quite as much public opposition to current Trump-era "tough-on-crime" approaches as the ACLU is here asserting.  But I do think this poll provides still further evidence that the public in general is eager to hear policy-makers and political candidates discuss the opportunities and need for criminal justice reform.

November 17, 2017 in Criminal justice in the Trump Administration, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, November 16, 2017

Notable crime fighting comments by Deputy AG Rosenstein in Chicago

Deputy Attorney General Rod Rosenstein delivered this lengthy speech at an awards dinner in Chicago on Thursday evening, and it included a number of interesting passages about crime fighting. I recommend the speech in full, and here are a few passages I thought especially worth highlighting:

In the first few decades after its creation in 1919, the Chicago Crime Commission battled bootleggers, gangs, and public corruption. It famously named Al Capone as Public Enemy Number One, which inspired the FBI to create its Ten Most Wanted List.

The challenges Chicago faces today demand a similar approach. In 2016, more than 4,300 Chicagoans were shot, and 760 were killed. On average, one person was shot every two hours, and two people were killed every day.  This year, with more than 600 homicides so far, Chicago is on track to report the second-highest murder total this century....

Gang violence accounts for the majority of the shootings and killings. Most of the violence relates to drug trafficking. Gang members do not just kill each other. T he also murder innocent bystanders -- men, women, and even children.

I mentioned earlier that I have a particular interest in a Chicago case from almost a century ago. It arose following the most notorious Chicago gang murder in history, known as the St. Valentine’s Day Massacre.  In 1929, seven victims were lined up against a wall and shot with machine guns.  The sensational crime shocked the city and provoked a public outcry to crack down on crime....

So Eliot Ness and his allies sent Capone to prison for a more readily provable crime -- tax evasion. Attorney General Robert Kennedy adopted a similar approach in 1961, when he counseled agents to fight organized crime with all available tools, even if it required prosecuting gangsters for minor offenses. In this century, after the attacks of September 11, 2001, Attorney General John Ashcroft ordered prosecutors to disrupt terrorist plots by pursuing any lawful charges to put suspects behind bars before they carry out their murderous plans.

The lesson of Ness, Kennedy and Ashcroft informs my approach to violent crime.  The lesson is that if we really want to save lives, we must have the courage to order our law enforcement agencies to employ proactive policing. To prevent crime, you need to identify killers and remove them from the community before they strike again.

I support education, job-training, rehabilitation, and other efforts to teach people not to commit crimes. But for police and prosecutors, our unique power is the ability to send people to prison.  The challenge is to focus on the right people and to make it count.  Local police agencies spend much of their time reacting to emergency calls and investigating past crimes, but they convict only a fraction of the perpetrators.

During my briefings with the leaders of the Chicago Police Department this morning, I learned that Chicago is now working to drive down violent crime through proactive policing.  We know that proactive policing works.  Proactive police and prosecutors identify violent repeat offenders, then they commit the resources needed to gather evidence of any readily prosecutable crimes.

Targeting dangerous repeat offenders for proactive enforcement is not a "zero tolerance" strategy of arresting random people for minor offenses.  It is a thoughtful strategy of identifying the career criminals and gangs that are fomenting violence in our communities, and using constitutional policing to arrest, prosecute and incarcerate them....

The lesson is that deterrence requires enforcement and rules that matter to criminals are the ones that carry expected penalties the criminals are unwilling to pay.  Deterrence is about fear of consequences. We want criminals to fear the police and the consequences of committing crimes.  If dangerous criminals are not afraid, then law-abiding citizens are in jeopardy.

When we see a surge in violent crime that follows a dramatic disruption in policing, as happened in Baltimore and Chicago, it is obvious that there is a lapse in the deterrent effect of law enforcement.  The debate about what caused the recent lapse in deterrence will endure, as will efforts to remedy root causes and improve relationships between police officers and residents of crime-ridden neighborhoods.

In the meantime, the crime surge can be suppressed if law enforcement agencies work together to secure lengthy sentences for armed felons, build proactive drug and conspiracy cases against members of gangs that foment violence, and prosecute dangerous offenders who violate probation or parole conditions.  I saw that approach work in Baltimore from 2007 to 2014. Both shootings and arrests fell dramatically.  It can work again....

Unfortunately, some people will not act good.  The national violent crime rate rose nearly seven percent over the past two years. The homicide rate increased more than 20 percent. Proactive policing can help reverse that trend....

The Attorney General also announced the creation of the National Public Safety Partnership to combat violent crime, and we hosted a National Summit on Crime Reduction and Public Safety.  The Attorney General established a new charging policy that authorizes prosecutors to charge defendants with the most serious offense.  It is not really a new policy; it is a return to the policy that worked when crime was falling....

We also are hiring additional federal prosecutors to focus on violent crime.  More police officers will patrol the streets with COPS hiring grants.  The Organized Crime and Drug Enforcement Task Forces helps implement a National Gang Strategy Initiative.  We offer training and technical assistance to state and local partners, and we collaborate with local law enforcement and exchange best practices.

There are many other things that we do to help reduce crime, but I want to conclude by talking about one of the most important.  We fight crime by promoting respect for the police. We need police to serve as role models.  Contacts with the police create indelible memories in the minds of citizens.  Police have a special responsibility to follow ethical and professional standards.  And citizens should show respect for law enforcement.  There is no excuse for people to harass law enforcement officers....

Chicago Police are still burdened by the requirement that they spend up to 45 minutes filling out a form every time they make a routine investigative stop. People who impose those requirements may be well-intentioned, but they usually fail to weigh the benefit of more bureaucracy against the cost of human lives lost to criminals who now are not stopped.

Fortunately, Superintendent Johnson’s police commanders are working to overcome their hurdles and give officers the tools and support they need to fight crime. Those tools include crime cameras, crime-mapping and predicting patrolling. I saw those tools demonstrated this morning at the Chicago Police Department’s Seventh District, where Commander Kenny Johnson and his crime analysts hold daily strategy meetings to decide where to assign patrol officers. They also run weekly shooting reviews attended by both state and federal prosecutors.

I also learned this morning that Chicago police data reports show that drug arrests lead to violent crime reductions. The most important single variable that reduces shootings in Chicago is to make a drug arrests. That is just a fact. As John Adams famously said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of the facts and evidence.”

It is good to see police leaders who are stubborn about facts.  Superintendent Johnson’s police officers do not mindlessly make mass drug arrests.  They arrest drug dealers who disrupt neighborhoods and foment violence.  They do exactly what Ness, Kennedy and Ashcroft did.

There are many notable aspects to this full speech, but I find especially interesting that the Deputy AG (1) references the St. Valentine’s Day Massacre without noting its link to alcohol Prohibition, (2) states that most of Chicago's violence relates to drug trafficking, and (3) asserts drug arrests lead to violent crime reductions.

November 16, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

"Justice reform is real and conservative governors are leading the way"

The title of this post is the headline of this recent Fox News commentary authored by Kentucky Governor Matt Bevin.  Here are excerpts:

During the 2016 Republican National Convention in Cleveland, I participated in a national panel on criminal justice reform with like-minded, conservative governors Nathan Deal of Georgia and Mary Fallin of Oklahoma.  It was an honor for me to discuss how best to create second chance opportunities with these two veterans of criminal justice reform.

When I was elected as governor in 2015, it was my intention that Kentucky would also be making significant changes to our criminal justice system. That is exactly what we have been doing.  With a rising prison population, severely depleted workforce participation rates, and the highest percentage in the nation of children with at least one incarcerated parent, we unfortunately had plenty of room for improvement. For years Kentucky had maintained an outdated, “lock-em-up and throw away the key” approach. That was unsustainable from both a societal and financial cost and we were determined to shake up the status quo.

Transforming our justice systems, supporting policies that safely reduce our jail and prison populations, putting ex-offenders back to work, creating safer communities—doing what is right for the people we represent is not a political statement. We began by making it easier for formerly incarcerated people to get back to work, passing a comprehensive felony expungement bill that allows certain former offenders, who have been crime-free for five years, to wipe their slates clean.  We also passed a bold reentry initiative that provides for more job training and eliminates regulatory barriers to employment for people with criminal records.

Our administration implemented “ban the box” for state government agencies to give ex-offenders a fair shot at employment, and launched the “Justice to Journeyman” initiative, which paves a pathway for inmates and detained youth to earn nationally recognized credentials in a skilled trade.  Kentucky’s success as the center for engineering and manufacturing excellence in America is only being enhanced as we pioneer changes in criminal justice policy....

I ... encourage ... all governors to tackle criminal justice reform policy with a sense of urgency and purpose. Some political advisors still speak passionately about being “tough on crime”, and caution that supporting criminal justice reform policy could be politically dangerous at election time.

This is a ridiculous notion. After all, more than 90 percent of those now incarcerated will eventually re-enter society.  We either pave a path towards second opportunities or we settle for recidivism. Which is better for our communities?

If we want voters to continue electing conservatives, we must offer serious solutions. We can no longer afford to cling to the outdated idea that prison alone is the only way to hold people accountable for their crimes.  Instead, we need to take a smarter, more measured approach to criminal justice.  More than simply removing lawbreakers from society, we must also rehabilitate and re-assimilate them back into society.

In the midst of national division in many fronts, a community of conservative governors are uniting to build trust and offer real solutions to some of our country’s greatest problems.  Transforming our justice systems, supporting policies that safely reduce our jail and prison populations, putting ex-offenders back to work, creating safer communities — doing what is right for the people we represent is not a political statement.

America has always been a land of opportunity and second chances.  When we hold individuals fully accountable for their actions while treating them with respect in the process, all of society benefits.

November 16, 2017 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

New report asserts California could and should cut its prison population by another 30,000

SquarelogoThis notable report by Californians for Safety and Justice, titled "Safe and Sound: Strategies to Save a Billion in Prison Costs and Build New Safety Solutions," makes the case that California could and should reduce its prison population by another 30,000 in order to close prisons and free up resources to spend on drug rehabilitation, mental health, job training and other programs. Here is an excerpt from the long report's executive summary:

Between 2006 and 2016, California has seen: A 25% drop in state prison incarceration.  A 10% statewide average drop in county jail populations.  A 64% drop in the number of people on state parole and a 22% drop in the number of felony filings in criminal courts annually.  Today more than 1.5 million Californians are eligible to remove nonviolent felony convictions from their old conviction records — opening the door to new opportunities for stability and empowerment. Rehabilitation programs are becoming more available to people in the justice system to help stop the cycle of crime. Trauma recovery centers are expanding across the state — from just one five years ago to eleven centers today—providing crisis care and help for underserved survivors of violent crime.  And, with the incarceration declines, hundreds of millions of dollars are finally being reallocated from bloated, costly prisons to community-based treatment and prevention....

Despite this progress, the Golden State’s incarceration rate is still so high that it remains a historic anomaly. California still spends more than $11 billion a year on state prisons.  That’s a 500% increase in prison spending since 1981.  In fact, California spends as much today on prisons as every state in the United States combined spent on prisons in 1981 and it has increased annual prison spending at a rate that has significantly outpaced other states.  When local crime response costs in California are factored in, such as the cost of county jails, that figure is nearly doubled from $11 billion to $20 billion annually....

In the next five years, California leaders must commit to further reducing state incarceration and prison spending to finally achieve a balanced approach to public safety.  If California leaders can continue to rightsize the state’s incarceration rate — and substantially reduce prison spending — the state would have increased capacity to invest in new safety solutions that more effectively support people vulnerable to crime, prevent crime from happening in the first place and stop the cycle from continuing.

This report outlines the strategies available to local jurisdictions to reduce the flow of people into the justice system and the burdens local criminal justice systems face. It also describes the sentencing and prison length of stay reforms that can continue to safely reduce the number of people in state prison, strategies that are supported by data on what works to reduce recidivism.

If state leaders implement the sentencing and prison length of stay reforms outlined in this report, the state could safely reduce the length of prison terms for the majority of people in prison by 20%, and reduce the number of people in state prison by about 30,000.

November 16, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, November 15, 2017

"Should life in jail be worse than life outside?"

The question in the title of this post is the headline of this new commentary authored by Chris Barker in The Week. Here are excerpts:

The crucial concept governing carceral practices is something called "less eligibility." The idea dates back to the English Poor Law Amendment Act of 1834, which codified English practices of dealing with the indigent. In 1832, the economist Nassau William Senior described how the "first and most essential of all conditions" in administering relief to the poor (often by moving them into a workhouse) is that the indigent's "situation on the whole shall not be made really or apparently so eligible as the situation of the independent laborer of the lowest class."  That is, the conditions in the workhouse should be awful: worse even than the poorest of the poor.

But even before Senior's famous line, a different carceral ideal was afoot: equality. In 1791, writing specifically about criminal offenders, the English utilitarian philosopher Jeremy Bentham argued that "the ordinary condition of a convict doomed to a punishment that few or none but the individuals of the poorest class are apt to incur, ought not to be made more eligible than that of the poorest class of subjects in a state of innocence and liberty."  As the historian Janet Semple observed in Bentham's Prison (1993), his rule of severity is not "less eligibility" but a more commonsense equality principle — offenders should have access to no more resources than they had while free. "Bentham," Semple wrote, "did not envisage grinding his convicts down to below the level of the poorest of the poor."

Other countries do not run their jails and prisons according to a principle of less eligibility. German prisons operate under an "approximation" principle, wherein offenders' rights to privacy, dignity and property are protected.  Norwegian prisons use a similar "normality principle," which holds that daily prison life should be, as far as possible, no different from ordinary life.  Fellow Englishman and Bentham disciple James Mill embraced the normality principle in 1825 by arguing that inmates in pre-trial incarceration should be allowed to lead the same life that they enjoyed prior to arrest, including access to employment and freedom to make small purchases with their own money.  Today, U.S. jails and prisons have rejected these examples in thrall to "less eligibility," and not just for the poorest of the poor....

If, as I think, the aim of punishment is rehabilitation, it is hard to justify less rather than equal eligibility.  But not all agree that rehabilitation is the primary aim of punishment. Deterrence theorists think that controlling crime is the most important aim of punishment. Retributivists hold that punishment should repay the harm done to another in a like manner: an eye for an eye, a tooth for a tooth....

Too often, the U.S. conversation about criminal justice is about principles and theories of punishment: rehabilitation, retribution, deterrence. What I am arguing here is that these theories amount to little if we ignore less eligibility, or how we punish.  Visiting a jail without an outdoor yard, where offenders have no physical contact with friends and family during their incarceration, or a prison where life unfolds within coils of obtrusive razor wire, is not a normal life, and doesn't prepare you to return to normal life.  As opinion in the U.S. starts to move away from some punitive strategies such as solitary confinement, we should reconsider which of our other carceral practices meet or violate the crucial secondary principles (leniency, proportionality, egalitarianism) of a just criminal justice system....

It is a tragedy if the attempt to have a just society with a suitable criminal justice system has been transformed into criminogenic warehousing, based on surveillance and discipline, which achieves few or none of the goals of punishment.  It is foolishness to countenance such a system merely because it has not yet touched you.  The road to the present state of affairs leads through less eligibility, which, on the surface, is a principle that makes sense: treat offenders to a life that is worse than life on the outside.  After all, why should offenders have air conditioning if the farmer "living in innocence and liberty" does not?  But the answer is that it is too easy to forget the other constraints on the dignity, privacy, and autonomy of those incarcerated in jails and prisons.

Our present system is costly and ineffective; it creates aberrant economies and empowers prison gangs that in turn influence street gangs.  Prisons reproduce the cultural inadequacy of life on the inside on our streets and in popular culture, and when offenders are released into communities, their lack of rehabilitation justifies further segregation and other collateral consequences, such as employment and housing discrimination.

November 15, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Monday, November 13, 2017

"The Boom and Bust of American Imprisonment"

The title of this post is the title of this new paper available via SSRN authored by Brandon Garrett. Here is the abstract:

We are teetering at the edge of a mass incarceration binge.  Lawmakers are reconsidering overly harsh criminal punishments.  At the same time, eight years later, people are still furious that elite criminals and CEOs avoided criminal punishment in the wake of the last financial crisis.  Many have complained that no Wall Street bankers went to jail. What do these conflicting tendencies mean? In this book review, first, I discuss the new book by business professor Eugene Soltes titled "Why They Do It," which explores psychological research on risk-taking by corporate criminals.  Second, I discuss law professor Sam Buell's "Capital Offenses," an engaging book that examines why it is so challenging to punish business crimes due to the structure of the economy, corporations, and our federal criminal justice system.  Third, I turn to law professor Darryl Brown's "Free Market Criminal Justice," which explores the role of free market ideology in the divide in American criminal justice. 

I conclude by exploring the implications of these arguments and this research for mass incarceration as well as corporate accountability at the high and low ends of our criminal justice system — we are finally turning a corner on mass incarceration in this country, and the problems and solutions that these authors identify partly explain why and whether better things or new fears lie around that corner.  We are at a crossroads.  We need voices of reason like Soltes's, Buell's, and Brown's, today more than ever.

November 13, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (1)

Wednesday, November 08, 2017

"An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane"

Logo (1)The title of this post is the title of this big new report from the Drug Policy Alliance. Here is part of its extended executive summary:

The country is in the middle of a tragic increase in drug overdose deaths. Countless lives have been lost – each one leaving an irreparable rift in the hearts and lives of their families and friends. These tragedies are best honored by implementing evidence-based solutions that help individuals, families, and communities heal and that prevent additional avoidable deaths. This report examines one strategy that the evidence suggests is intensifying, rather than helping, the problem and calls for leaders to turn towards proven measures to address the increasing rates of overdose deaths.

In the 1980s, at the height of the draconian war on drugs, the federal government and a host of states passed “drug-induced homicide” laws intended to punish people who sold drugs that led to accidental overdose deaths with sentences equivalent to those for manslaughter and murder. For the first 15-20 years, these laws were rarely used by police or prosecutors, but steadily increasing rates of drug overdose deaths across the country have led the law enforcement community to revive them. Currently, 20 states — Delaware, Colorado, Florida, Illinois, Kansas, Louisiana, Michigan, Minnesota, New Hampshire, New Jersey, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Vermont, Washington, West Virginia, Wisconsin, and Wyoming —  have drug-induced homicide laws on the books.

A number of other states, while without specific drug-induced homicide statutes, still charge the offense of drug delivery resulting in death under various felony-murder, depraved heart, or involuntary or voluntary manslaughter laws. These laws and prosecutions have proliferated despite the absence of any evidence of their effectiveness in reducing drug use or sales or preventing overdose deaths. In fact, as this report illustrates, these efforts exacerbate the very problem they seek to remediate by discouraging people who use drugs from seeking help and assistance.

Although data are unavailable on the number of people being prosecuted under these laws, media mentions of drug-induced homicide prosecutions have increased substantially over the last six years. In 2011, there were 363 news articles about individuals being charged with or prosecuted for drug-induced homicide, increasing over 300% to 1,178 in 2016.

Based on press mentions, use of drug-induced homicide laws varies widely from state to state. Since 2011, midwestern states Wisconsin, Ohio, Illinois, and Minnesota have been the most aggressive in prosecuting drug-induced homicides, with northeastern states Pennsylvania, New Jersey, and New York and southern states Louisiana, North Carolina, and Tennessee rapidly expanding their use of these laws. Further signaling a return to failed drug war tactics, in 2017 alone, elected officials in at least 13 states – Connecticut, Idaho, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New York, Ohio, South Carolina, Tennessee, Virginia, and West Virginia – introduced bills to create new drug-induced homicide offenses or strengthen existing drug-induced homicide laws.

Prosecutors and legislators who champion renewed drug-induced homicide enforcement couch the use of this punitive measure, either naively or disingenuously, as necessary to curb increasing rates of drug overdose deaths. But there is not a shred of evidence that these laws are effective at reducing overdose fatalities. In fact, death tolls continue to climb across the country, even in the states and counties most aggressively prosecuting drug-induced homicide cases. As just one example, despite ten full-time police officers investigating 53 potential drug-induced homicide cases in Hamilton County, Ohio in 2015, the county still recorded 100 more opioid-related overdose deaths in 2016 than in 2015.

This should be unsurprising. Though the stated rationale of prosecutors and legislators throughout the country is that harsh penalties like those associated with drug-induced homicide laws will deter drug selling, and, as a result, will reduce drug use and related harms like overdose, we have heard this story before. Drug war proponents have been repeating the deterrence mantra for over 40 years, and yet drugs are cheaper, stronger, and more widely available than at any other time in US history. Supply follows demand, so the supply chain for illegal substances is not eliminated because a single seller is incarcerated, whether for drug-induced homicide or otherwise. Rather, the only effect of imprisoning a drug seller is to open the market for another one. Research consistently shows that neither increased arrests nor increased severity of criminal punishment for drug law violations results in less use (demand) or sales (supply). In other words, punitive sentences for drug offenses have no deterrent effect.

Unfortunately, the only behavior that is deterred by drug-induced homicide prosecutions is the seeking of life-saving medical assistance. Increasing, and wholly preventable, overdose fatalities are an expected by-product of drug-induced homicide law enforcement. The most common reason people cite for not calling 911 in the event of an overdose is fear of police involvement. Recognizing this barrier, 40 states and the District of Columbia have passed “911 Good Samaritan” laws, which provide, in varying degrees, limited criminal immunity for drug-related offenses for those who seek medical assistance for an overdose victim. This public health approach to problematic drug use, however, is rendered useless by enforcement of drug-induced homicide laws.

November 8, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, November 07, 2017

"Criminal Justice and the Mattering of Lives"

The title of this post is the title of this new article/book review authored by Deborah Tuerkheimer and available via SSRN. Here is the abstract:

James Forman's "Locking Up Our Own: Crime and Punishment in Black America" is an extraordinary book, and it arrives at a pivotal juncture for criminal justice reform.  This Essay builds on Forman's rendition of "a central paradox of the African American experience: the simultaneous over- and under-policing of crime."  

It describes three areas in which legally marginalized groups currently struggle for state recognition of their injuries: gun violence, sexual violence, and hate crimes. It then offers a conceptual framework for future reform efforts that, by centering structural inequality, aspires to concurrently rectify the over- and under-enforcement of crime highlighted by Forman's careful work.

I refer to this inversion of the traditional criminal justice paradigm as an anti-subordination approach to criminal justice — one that makes salient the interplay between crime and entrenched social inequalities while pressing for a state response that alleviates, rather than exacerbates, the disempowerment of vulnerable populations.

November 7, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Sunday, November 05, 2017

Seeking experiences and thoughts on Marsy's Law, especially from prosecutors, as Ohio prepares to vote

Facebook-seoMy local paper, the Columbus Dispatch, has this new article reporting on the on-going debate over "Marsy's Law," which is due to be considered by voter initiative here in Ohio this Tuesday. The piece is headlined "Victims rights concerns at root of Issue 1," and here are excerpts:

People on both sides of state Issue 1 say they are deeply concerned with victims rights, but some of those who are opposed question its workability and even its necessity.

Also known as Marsy’s Law, Issue 1 would amend the Ohio Constitution to enshrine rights for victims of alleged crimes that supporters say aren’t guaranteed now.  It’s on the ballot Tuesday. The amendment would require that victims be notified of important hearings in criminal cases of such things as prison releases.  It also would give alleged victims standing to intervene in criminal cases to try to protect what they see as their interests.  And it would seek to protect their privacy.

Marsy’s Law is named for Marsy Nicholas, who in 1983 was murdered by her ex-boyfriend in California. Unbeknownst to her parents, Nicholas’s killer was released on bail and her parents ran into him in a store.

The effort to change state constitutions in Ohio and elsewhere is bankrolled by Marsy’s brother, California tech billionaire Henry Nicholas, who was born in a Cincinnati suburb and moved west as a young boy.  His team insists that the constitutional amendment is meant merely to level the playing field for crime victims.  “Criminals get way more constitutional protections than crime victims do,” said Gail Gitcho, national spokeswoman for the Marsy’s Law effort.

But while victims’ rights are an easy sell politically, criminal cases don’t set the rights of the accused against those of an alleged victim, said Ohio Public Defender Tim Young. “The victim doesn’t need rights to keep the government from improperly sending them to prison,” he said.

Gitcho agreed that victims’ interests are different in criminal cases, and she said nothing about whether Issue 1 would limit constitutional protections for criminal defendants. But, she said, it’s high time that victims’ interests are protected in the Ohio Constitution.

Issue 1 has gathered the support of some high-level prosecutors, such as Ohio Attorney General Mike DeWine and Franklin County Prosecutor Ron O’Brien.  But the Ohio Prosecuting Attorneys Association, the Ohio State Bar Association and the Ohio Association of Criminal Defense Attorneys have come out against the ballot initiative.

One concern is that the state Constitution isn’t the appropriate place for the protections. If problems arise with the workability of Issue 1, it would be exceedingly difficult to fix them by amending the Constitution, said Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association. Issue 1 supporters say, however, that it’s necessary to put victim rights in the Constitution to ensure they’re protected because a 1994 state statute intended to do so hasn’t been enough.

“In the last several decades since, it has become clear that the rights of Ohio victims are not enforceable, there have been numerous efforts to strengthen those rights in the legislature,” Issue 1 spokesman Aaron Marshall said in an email. “All of those efforts have failed due to pushback from the same groups who are now claiming that they would support victims’ rights legislative improvements.”...

Asked for examples of victims’ rights violations in Ohio that would be helped by Issue 1, Marshall cited the case of a northeast Ohio rape in which the trial was postponed 20 times over more than five years. He also pointed to a Summit County woman’s long fight to keep private her psychological records and social media passwords after her boyfriend was killed and she was beaten, shot and stabbed.

Despite the appeal of Issue 1, Public Defender Young predicts a raft of legal headaches if it passes. “This isn’t about victims’ rights,” he said. “It’s about the Bill of Rights.”

As this article highlights, the vote over Marsy's Law has split the state's prosecutors, with Ohio's Attorney General and some county prosecutors in support, but with the Ohio Prosecuting Attorneys Association (OPAA) against.  (The Ohio AG is already a declared candidate for Ohio governor in 2018, which may have played some role in his thinking on the issue.)  This recent commentary from the executive director of the OPAA explains some of the group's concerns:

Marsy’s Law could negatively impact Ohio communities.  The amendment grants “the victim’s . . . lawful representative” the right to assert a victim’s rights. Courts could determine that this grants the victim the right to an attorney. The victim would then have the right to a court-appointed attorney if indigent.

Taxpayers could be paying for the prosecutor; for counsel for an indigent defendant; and for counsel for an indigent victim. This duplication of responsibilities and costs is bad enough in one case. Multiplied by thousands of cases each year, it could delay justice at best and deny it at worst.

Ohio’s prosecutors applaud advocates for victims.  They deserve praise for raising awareness of the cause and plight of victims of crime, and we stand ready to work with all to improve victim’s rights in a meaningful way.  Enshrining Marsy’s Law in Ohio’s Constitution in response to a problem case in California, however, is not beneficial. Ohioans should be concerned about the consequences for our justice system.

I tend to be a strong supporter of victim's rights in the criminal justice system, while also being a strong supporter of defendant rights.  Because I do not think there has to be or should be a zero-sum quality to defendant/victim rights, I am always inclined to support a proposal that seeks to expanded identified and enforceable rights in our justice system.  For this reason, I am inclined to support Marsy's Laws, and that inclination is enhanced by my extraordinary respect for lawyers and advocates I know who work so hard on behalf of rights of crime victims in a range of settings.

That all said, because Ohio has a number of victims' rights already in place in our Constitution and statutes, I understand the concern that Marsy's Law could end up being a cure worse than the current disease.  For that reason, as the title of this post suggests, I would be especially interested in hearing from prosecutors or others with direct experience with the impact and import of Marsy's Law or with particular concerns as to how the law might play out in Ohio.  I believe this law has been on the books for nearly a decade in California and in a handful of others states, and the debate here in Ohio has seemingly not included any examples of the law causing any big trouble in other jurisdictions.  A little research turned up this recent AP article from North Dakota reporting that law enforcement has described the impact of Marsy's Law there as  "very, very minimal."

So, informed (or uninformed) readers, any sharp thoughts on how the citizens of Ohio should vote on Marsy's Law?

November 5, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7)

Saturday, November 04, 2017

Some more diverse reading about the opioid crisis

As I have said in prior posts, I could readily fill this blog multiple times a day with tales of the opioid crisis given the size and reach of the problem and the attention it is getting from many quarters.  Catching my attention this week are these opioid stories and commentaries, some which respond to the recommendations that emerged from Prez Trump's Commission on Combating Drug Addiction and the Opioid Crisis (discussed here):

November 4, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Friday, November 03, 2017

Army deserter Bowe Bergdahl gets no prison time, Prez Trump not too pleased

As reported in this Fox News story, headlined "Bergdahl dishonorably discharged, no jail time after emotional trial," a high-profile military sentencing today prompted a high-profile response from the Commander in Chief.  Here are the details:

President Trump tweeted Friday that Army Sgt. Bowe Bergdahl's sentence -- a dishonorable discharge, but no prison time for leaving his post in June 2009 -- was a "complete and total disgrace."

More than eight years after Bergdahl walked off his base in Afghanistan -- and unwittingly into the clutches of the Taliban -- Bergdahl walked out of a North Carolina courtroom a free man Friday.  Bergdahl, who pleaded guilty to endangering his comrades, was fined, reduced in rank to E1 and dishonorably discharged -- but he received no prison time.

Trump, aboard Air Force One en route to meetings in Asia, tweeted his disapproval of the sentence.  "The decision on Sergeant Bergdahl is a complete and total disgrace to our Country and to our Military," Trump wrote.....

As part of the sentence, Bergdahl will forfeit his pay of $1000 per month for ten months.  Bergdahl was shaking and appeared emotional as the verdict was quickly read.

Bergdahl's defense lawyer has told reporters after sentencing that his client "has looked forward to today for a long time." Eugene Fidell added: "Sgt. Bergdahl is grateful to everyone who searched for him in 2009, especially those who heroically sustained injuries."...

Fidell told reporters that he looks forward to the appeals court reviewing Trump's statements as a candidate, which he appeared to reaffirm on the day Bergdahl pleaded guilty Oct. 16.  Addressing reporters before Trump tweeted about the sentence, Fidell said Trump had already caused one of the "most preposterous" legal situations in American history.  He said he looks forward to the appeal, adding: "We think there's an extremely strong basis for dismissal of the case."

Prosecutors had requested a 14-year prison term following a week of emotional testimony from the survivors who were wounded during missions to find Bergdahl after he left the base in June 2009.  Bergdahl's defense team had asked for no prison time.  Bergdahl faced up to life in prison for desertion and misbehavior before the enemy.

Prior related post:

November 3, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (35)

"Multiple Offenders and the Question of Desert"

The title of this post is the title of this new paper by Youngjae Lee now available via SSRN. Here is the abstract:

This essay, published as a chapter in Sentencing Multiple Crimes (Jesper Ryberg, Julian V. Roberts & Jan W. de Keijser eds., 2017) examines the bulk-discount approach to sentencing multiple offenders.  It argues that bulk discounts are not only appropriate and even mandatory from the just deserts perspective, but that as a general matter, there should be a substantial reduction in sentence for each additional offense when it comes to multiple-offense sentencing.

After providing specific examples of multiple offenders who were sentenced consecutively, the chapter discusses the relationship between culpability and character from the perspective of just deserts theory or retributivism.  It then advances the claim that sentences for multiple offenders should not reach the level at which the state would be communicating an unfairly and inappropriately harsh assessment of the character of each multiple offender.  It also considers the ways in which multiple offenders are more culpable than single-crime offenders and concludes by insisting that discounts for multiple offenders and premiums for repeat offenders are not inconsistent.

November 3, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Prof Tribe makes standard policy arguments to advocate that Supreme Court "hold the death penalty unconstitutional nationwide"

Because Harvard Law Prof Laurence Tribe has long been among the nation's most highly regarded constitutional thinkers, I got excited when I saw he penned this new Washington Post opinion piece headlined "The Supreme Court should strike down the death penalty."  I was hoping that Prof Tribe might be presenting  some novel arguments for declaring capital punishment per se unconstitutional. But, as detailed below, his piece just makes familiar policy arguments against the punishment based on how it gets applied:

After more than 40 years of experimenting with capital punishment, it is time to recognize that we have found no way to narrow the death penalty so that it applies only to the “worst of the worst.”  It also remains prone to terrible errors and unacceptable arbitrariness.

Arizona’s death-penalty scheme is a prime example of how capital punishment in the United States unavoidably violates the Eighth Amendment’s requirement that the death penalty not be applied arbitrarily.  The Supreme Court will soon consider accepting a case challenging Arizona’s statute and the death penalty nationwide, in Hidalgo v. Arizona....

As a result of Arizona’s ever-expanding list of aggravating factors, 99 percent of those convicted of first-degree murder are eligible for execution.  This wholly fails to meet the constitutional duty to narrow the punishment to those murderers who are “most deserving” of the punishment.

It has also opened the door to disturbing racial trends.  Studies show that people in Arizona (and nationally) accused of murdering white victims are much more likely to receive the death penalty.  There are also geographic disparities: Some counties do not pursue the death penalty, while Maricopa County, where the defendant in the Hidalgo case was tried, imposed the death penalty at a rate 2.3 times higher than the rest of the state over a five-year period....

Instead of continuing, in the words of Justice Harry A. Blackmun, to “tinker with the machinery of death,” the court should hold the death penalty unconstitutional nationwide.

In doing so, the court would be recognizing our country’s movement away from capital punishment: Eleven states that have the death penalty on their books have not had an execution in the past 10 years — four states have suspended the death penalty, and 19 have abolished it entirely.  Each year, the death penalty continues to shrink as its use becomes not less but more arbitrary: Death sentences have declined by more than half in just the past five years.  Executions went from a modern-era high of 98 in 1999 to 20 in 2016. A handful of counties — just 2 percent — are driving the death penalty while the rest of the nation has moved on.

One reason jurors are increasingly uncomfortable in choosing death is the growing awareness that too many condemned people are, in fact, innocent.  In the modern era of the death penalty, 160 people have been exonerated and freed from death row because of evidence that they were wrongly convicted.  A painstaking study from the National Academy of Sciences concluded that 4 out of every 100 people sentenced to death in the United States are innocent.  When even 1 in 1,000 would be unacceptable, the continued use of the death penalty undermines the public’s confidence in the criminal-justice system.

The court should acknowledge that capital punishment — in Arizona and everywhere else — violates human dignity and constitutes cruel and unusual punishment. At the very least, it should enforce the requirement that the death penalty be available only in the rarest of circumstances.

Though supporters of the death penalty can readily dicker with some particulars in Prof Tribe's complaints about arbitrariness, "racial trends," geographic disparities and wrongful convictions in the capital context, I am always struck by the suggestion that these problems of capital administration justify constitutional abolition of the death penalty and only the death penalty.  Arbitrariness, "racial trends," geographic disparities and wrongful convictions plague just about every facet of our justice systems and implicate punishments in arenas ranging from life without parole to federal mandatory minimum drug sentences to plea practices to juvenile court adjudications.  If the policy concerns expressed by Prof Tribe here justifies the Supreme Court declaring one punishment per se unconstitutional, it arguably justifies declaring many other punishments per se unconstitutional.

Of course, the Supreme Court has long developed a unique jurisprudence for capital cases that dramatically shapes and limits its application, and many abolitionists like Prof Tribe would surely like to see the Court finally convert policy arguments against the death penalty into a categorical constitutional prohibition.  But, especially with so few members of the Court now showing any eagerness to take up Justice Breyer's suggestion in Glossip to reconsider the facial constitutionality of the death penalty, there seems little reason to expect that a majority of Justices will want to do what Prof Tribe is urging anytime soon.

November 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, October 26, 2017

Prez Trump to declare opioid epidemic a "public health" emergency

As reported in this piece from The Hill, "President Trump on Thursday will instruct the acting director of the Department of Health and Human Services to declare the opioid epidemic a public health emergency, White House officials said." Here is more about this notable news:

It's a move that won't free up additional federal funding and is a more narrow option recommended by the president's opioid commission.  The announcement has been months in the making and avoids declaring a more sweeping national emergency under the Stafford Act, which was one option the administration's opioid commission had previously recommended.  The commission recommended either a public health emergency or a Stafford Act emergency.

The Stafford Act “doesn't offer authority that is helpful here," a senior administration official said. "There has been some false reporting about this." A Stafford Act emergency is typically reserved for a terror attack or natural disaster in a more localized area.

Trump will formally make the announcement during a White House event Thursday.... On Aug. 10, Trump said his administration was drafting paperwork to officially declare the epidemic a national emergency, which was the “first and most urgent” recommendation in an interim report from his commission to combat the crisis. Two months later, some advocates and lawmakers were frustrated that the declaration still hadn’t come. At a press conference last week, Trump said he’d make the announcement this week, calling a declaration “a very important step” and saying “to get to that step, a lot of work has to be done and it’s time-consuming work.”

Administration officials said they felt that a public health emergency was a better use of resources.  It will allow acting HHS Secretary Eric Hargan to loosen certain regulations and issue grants and spend money that he otherwise would not be able to.  A public health emergency needs to be renewed every 90 days until the declaration is no longer needed.

Three agencies that play a role in the federal response to the opioid epidemic have acting directors instead of Senate-confirmed leaders: the White House Office of National Drug Control Policy, the Department of Health and Human Services and the Drug Enforcement Administration.  Rep. Tom Marino (R-Pa.) — an early backer of Trump — withdrew as the ONDCP nominee last week following a Washington Post-"60 Minutes” joint investigative report on a bill he sponsored that weakened the DEA's ability to enforce the nation’s drug laws.  Marino has vigorously defended himself. White House officials said Trump will be submitting names to lead HHS and ONDCP soon but pointed to “obstructionists” in the Senate for slowing down confirmation of lower level agency appointees who could help implement the action.

The declaration could spark a funding feud in Washington, as some say more cash is needed to make a declaration effective. The amount of money left in the public health emergency fund is paltry — just $57,000.  Administration officials said there have been ongoing discussions with Congress about securing more money for the fund as part of the year-end spending bill, but would not discuss specific dollar amounts.

Though I am sure there will criticism and debate as to whether the Trump Administration is doing enough with this latest move and other actions, I cannot help but note and praise the labeling and symbolism here.  Today's announcement involves a declaration of a "public health" emergency rather than a declaration of a "war on opioids" or advocacy for increased punishments for opioid activity.  (Although until we hear what Prez Trump actually says this afternoon, it may be premature to praise what it would seem he plans to say and I recall that last month AG Sessions talked about winning the war against opioids.)

In prior generations, such as when crack was the drug of great concern in the 1980s, the response at the federal level was to increase and emphasize the criminal justice fight in various ways.  A "public health" focus for drug problems is one that has been long urged by researchers and advocates; today's announcement suggests some rhetoric of late is shifting to embracing a "public health" model — although on-the-ground realities demonstrate that the criminal justice system is still playing a huge part of the public response to opioid and other drug issues.

A few of many recent related posts:

October 26, 2017 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Tuesday, October 24, 2017

"Resolving Judicial Dilemmas"

The title of this post is the title of this new paper authored by Alex Sarch and Daniel Wodak recently posted to SSRN.  Here is its abstract:

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing.  Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well.”

When faced with such a judicial dilemma — a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses — sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”) — are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both.  Judges should, in other words, look for and employ what we dub Satisficing Options.  These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible — even if the acts in question would not strictly count as optimal by the lights of the law or morality.

This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import.  Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences.  While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas.  This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system.

October 24, 2017 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, October 23, 2017

"Is There a ‘Rational’ Punishment for My Rapist?"

The title of this post is the title of this powerful personal article authored by Amber Rose Carlson.  I recommend the piece in full, and I hesitate to reprint excerpts for fear of diluting the potency of the entire piece.  But this excerpt perhaps will help prompt folks to click through to read the full piece:

“Imagine your rapist had been found guilty and sentenced in court. What would you want his sentence to be?” This was the question asked to me in January 2016 by my therapist during a session of eye movement desensitization and reprocessing therapy (E.M.D.R.) — a treatment that researchers tout as one of the best remedies for severe trauma and post-traumatic stress disorder.

I was raped repeatedly during a three-year span from age 13 to 16. I was also subject to physical and emotional abuse during that time. I’ve since undergone years of traditional talk and group therapy with trauma specialists, and I am more healed today than I ever thought possible.  Still, recovering from trauma is a serious endeavor, and I hoped for more healing....

I’m not a proponent of the death penalty primarily because the flaws in our criminal justice system are egregious and increasingly well-documented. The thought experiment’s framing, however, circumvented my usual concerns about unjust sanctions. I know what my rapist did to me, so I know he is guilty. Worries about the inhumanity of capital punishment were also blunted in part because this was purely hypothetical and in part because of the inhumanity he exhibited those long years with his penchant for violence.

Although the death sentence seemed wholly appropriate, I still considered how I would feel if a judge gave my rapist a less severe punishment: a natural life sentence — a life sentence with no chance for parole without a successful appeal.  In this scenario, my feelings were just as clear: I would be slightly disappointed, but I would still feel mostly satisfied.  Anything less than a death or natural life sentence, I knew, would seem inadequate....

IN FEBRUARY 2016 — only weeks after the thought experiments with my therapist — the philosopher Jennifer Lackey published an opinion piece in The Stone. In the article, she uses her experience teaching philosophy to inmates to argue for the irrationality of natural life sentences.  Lackey bases her argument against natural life sentences on two reasonable claims: (1) people (criminals, specifically) can and do change in profoundly transformative ways, and (2) we cannot know the future.

For Lackey, the fact that we have good statistical evidence that criminals can and do change is especially problematic given our vast epistemic limitations regarding the future. “Natural life sentences,” she wrote, “say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal.” Citing the possibility of prisoner transformation, Lackey then puts her question about rationality directly: “How is it rational,” she asks, “to screen off the relevance of this information? How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades-from-now prisoner deserves?”...

I read Lackey’s article very soon after the thought experiments with my therapist. I noticed that Lackey’s argument easily applied to the death penalty, and I realized that the sentences I desired for my rapist were precisely the ones Lackey condemns as irrational.  Since nothing in her argument prevented me from applying her logic to my own desires, I had to wonder if her argument also concluded that I was irrational for desiring permanent punishments.  If it is irrational for the state to prescribe a permanent punishment given our epistemic limitations and prisoners’ likelihood for change, wouldn’t it be similarly irrational for victims to ignore these considerations?

There are, of course, crucial differences between victim’s desires and punishments carried out by the state. While sometimes the criminal justice system considers the wishes of victims and their families, the criminal justice system’s central aim is to protect the interests of the state and the community.  This aim does not always coincide with the interests or wishes of the victim.  Admittedly, there are often very good reasons for the state to ignore the wishes of victims.  But my concern is less about what the state should do in practice and more about what arguments that prioritize transformation say about victims who desire permanent punishments.

Here I will be blunt: it matters very little to me whether my rapist is transformed at some point in his life. It matters to me only to the extent that I will readily agree that it would be better if he became the sort of person who did not inflict violence upon others.  I would be very happy hearing that no other women would be harmed by him. But in terms of the punishment that he deserves?  Transformation does not matter to me.  And this is not irrational: There are many carefully considered reasons one might want a natural life sentence for perpetrators of egregious and irrevocable harm.

Desiring death or a natural life sentence for those who inflict traumatic violence is a rational response because whether or not my particular rapist transforms is irrelevant to whether or not I will ever have the chance to be the sort of person I might have been.  His transformation is irrelevant to whether or not I will be able to live the sort of life I could have were it not for the injustice done to me. I desire a death or natural life sentence for my rapist because that is what seems appropriate given the amount of damage he wrought in my life....

Although my attitude is in no way representative of all victims, epistemic arguments that prioritize criminal transformation must contend with the implication that they can be used to paint trauma victims irrational when they desire retribution.  It’s certainly important to advocate for prisoners who are wrongly incarcerated and for those who were victims of the overzealous war on crime era.  The injustices in our criminal justice system are too numerous and too serious to ignore. But criminal justice reform should not be so myopic that it compounds trauma survivors’ victimization.  Those who manage to survive traumatic crimes have enough to battle without arguments that undermine their rational considerations. Advocates for criminal justice reform can, and should, do better.

October 23, 2017 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (18)

Reviewing publicity's role in federal sentencing decision-making

This new Forbes piece by Brian Jacobs, headlined "The Role of Publicity in Sentencing," reviews how a case's high-profile nature can play a role in a defendant's federal sentencing. Here are excerpts concluding with the author's closing criticism of "any substantial reliance on publicity as a sentencing factor":

Should defendants in cases that attract press coverage be given longer sentences than defendants in cases that pass unnoticed?  The knee jerk response of anyone familiar with the basic principle of equality under the law would likely be a resounding “no.”  And yet, as some recent cases have starkly demonstrated, courts can and do consider a defendant’s level of notoriety as a factor weighing in favor of harsher punishment.

The ability of courts to take publicity into account at sentencing traces back to Section 3553(a) of Title 18, United States Code, which provides a list of factors that district courts are required to consider in imposing sentence, including “the nature and circumstances of the offense and the history and characteristics of the defendant.”  One of the factors district courts must consider is “the need for the sentence imposed— to afford adequate deterrence to criminal conduct.”...

The extent of publicity a case has received and will continue to receive naturally figures into the analysis of whether a given sentence will further the goal of general deterrence.  As one commentator wrote some time ago, “[i]f a case has for some reason attracted great publicity, a severe sentence could be expected to have great deterrent effect.  If, on the other hand, the publicity is minimal and the sentence probably will be known only to the defendant himself and the officials involved with the case, the judge could let the offender off with a light sentence without sacrificing any general preventive effects.”

As evidenced by some recent cases, courts have generally followed through on this reasoning and have considered the extent of a case’s publicity as one factor weighing in favor of higher sentences.  In Ross Ulbricht’s appeal of his conviction for crimes “associated with his creation and operation of an online marketplace known as Silk Road,” the Second Circuit Court of Appeals condoned the district court’s consideration of the extent of the case’s publicity as one factor justifying the life sentence imposed. Specifically, the Second Circuit approved the district court’s reference to the general deterrence that would result from the “unusually large amount of public interest” in the case.  (Ironically, it appears that the Ulbricht’s life sentence and the attendant publicity, far from deterring crime, “actually boosted dark web drug sales.”)

By the same token, in sentencing former congressman Anthony Weiner to 21 months’ imprisonment for transferring obscene materials to a minor, U.S. District Judge Denise L. Cote made express reference to Mr. Weiner’s high profile: “Because of the defendant’s notoriety, gained well before he engaged in this criminal activity, there is intense interest in this prosecution, in his plea, and his sentence, and so there is the opportunity to make a statement that could protect other minors,” she said.  Judge Cote elaborated that, “[g]eneral deterrence is a very significant factor in this sentence.”...

But even as courts are required to consider general deterrence, the consideration given to a case’s publicity, in particular, should be minimal.  The use of general deterrence as a sentencing factor is inherently unfair to an individual defendant, to the extent that the individual defendant’s case is used as a “means for the public good.”  To base a defendant’s sentence on the extent of the publicity a case has received or will receive only exacerbates this unfairness, as notoriety has even less to do with the individual defendant’s case, and more to do with the whims of the press corps and the Department of Justice’s media operation.  In the long run, any substantial reliance on publicity as a sentencing factor, rather than deterring crime, seems just as likely to increase the risk that people will, as one commentator wrote, “find the system unjust” in violation of “the principle of equality before the law.”

October 23, 2017 in Booker in district courts, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Thursday, October 12, 2017

Big new report provides state-by-state guide to expungement and rights restoration

Report-coverAs detailed in this new post over at the Collateral Consequences Resource Center, the folks at CCRC have just published this big new report on state expungement and rights restoration practices under the title "Forgiving and Forgetting in American Justice: A 50-State Guide to Expungement and Restoration of Rights." This CCRC post provides this account of the new report's coverage and goals:

This report catalogues and analyzes the various provisions for relief from the collateral consequences of conviction that are now operating in each state, including judicial record-sealing and certificates of relief, executive pardon, and administrative nondiscrimination statutes. Its goal is to facilitate a national conversation about how those who have a criminal record may best regain their legal rights and social status.

Given the millions of Americans who have a criminal record, and the proliferation of laws and policies excluding them from a wide range of opportunities and benefits, there is a critical need for reliable and accessible relief provisions to maximize the chances that these individuals can live productive and law-abiding lives after completion of their court-imposed sentences. Whatever their form, relief provisions must reckon with the easy availability of criminal records, and the pervasive discrimination that frustrates the rehabilitative goals of the justice system.

It is not the report’s purpose to recommend any specific approach to relief. Rather, our goal is simply to survey the present legal landscape for the benefit of the policy discussions now underway in legislatures across the country. We are mindful of the fact that very little empirical research has been done to measure outcomes of the various schemes described, many of which are still in their infancy. It is therefore hard to say with any degree of certainty which approach works best to reintegrate individuals with a record into their communities. At the same time, we hope that our description of state relief mechanisms will inform the work of lawyers and other advocates currently working to assist affected individuals in dealing with the lingering burdens imposed by an adverse encounter with the justice system.

The title of the report provides a framework for analyzing different types of relief provisions. For most of our history, executive pardon constituted the principal way that persons convicted of a felony could “pay their debt to society” and regain their rights as citizens. This traditional symbol of official forgiveness was considered ineffective by mid-20th century reformers, who sought to shift responsibility for restoration to the courts. The reforms they proposed took two quite different approaches: One authorized judges to limit public access to an individual’s record through expungement or sealing, and the other assigned judges something akin to the executive’s pardoning role, through deferred dispositions and certificates of relief. These two approaches to restoration have existed side by side for more than half a century and have never been fully reconciled.

Today, with a new focus on reentry and rehabilitation, policy-makers are again debating whether it is more effective to forgive a person’s past crimes (through pardon or judicial dispensation) or to forget them (through record-sealing or expungement). Despite technological advances and now-pervasive background-checking practices, many states have continued to endorse the forgetting approach, at least for less serious offenses and records not resulting in conviction. At the same time, national law reform organizations have proposed more transparent judicial forgiving or dispensing mechanisms. While the analytical model of “forgiving v. forgetting” is necessarily imperfect given the wide variety of relief provisions operating in the states, it seems to capture the basic distinction between an approach that would mitigate or avoid the adverse consequences of past crimes, and an approach that would limit access to information about those crimes.

The report organizes relief provisions into six categories: executive pardon, judicial record-closing, deferred adjudication, certificates of relief, fair employment and licensing laws, and restoration of voting rights. The judgments made about the availability of each form of relief, reflected in color-coded maps, are in many cases necessarily subjective, and we have done our best to explain our approach in each case.

More detailed information about different forms of relief is available from the state-by-state summaries that are the heart of the report. Citations to relevant laws and comparisons of the laws of each state are included in the 50-state charts in Appendices A & B. Up-to-date summaries and charts are available from the Restoration of Rights Project, which additionally includes in-depth discussions of the law and policy in its state-by-state “profiles.” This information is updated by the authors on a real-time basis, and we expect to republish this report from time to time when warranted by changes in the law.

October 12, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (1)

Monday, October 02, 2017

"Plea Bargains Are a Travesty. There's Another Way."

I just noticed this recent Megan McArdle commentary at Bloomberg View which is summarized by its subheadline: "Better to apply fewer laws more consistently than to continue the U.S.’s current 'randomized draconianism'." Here are excerpts:

The justice system is no longer set up to provide an innocent man his day in court. It is a machine for producing plea bargains in industrial quantities.

It can operate no other way, because the volume of cases is far larger than the court system can actually handle.  So instead of trials that take a long time and cost a lot of money but ideally separate the guilty from the innocent, we have become dependent on an assembly line where the accused go in at one end and come out the other a (relatively) short time later -- as convicted criminals, regardless of their guilt or innocence, but with shorter sentences than they would have faced if convicted at trial and with smaller lawyers’ bills than they would have faced if they had gone to trial....

The most obvious way to begin repairing this broken system is to spend more money building courtrooms and hiring judges, so that defendants actually do have a chance at their constitutionally guaranteed right to a speedy trial.  We should also take a long, hard look at the number of things that are crimes, and the sentencing laws that require many crimes be requited with very harsh penalties.

Most our mass incarceration problem is a sentencing problem, driven by both mandatory minimums and prosecutors who are rewarded for being “tough on crime.” These factors aggravate the flaws of the plea-bargaining system.  Prosecutors can threaten to prosecute on draconian charges, which carry draconian sentences -- and all but force a defendant, even an innocent one, to take a plea bargain, with a lesser charge and a lesser sentence.  Defendants (guilty and innocent alike) usually conclude that the risk of going to trial is simply too great.  And the plea bargains, in turn, keep the machine from choking on the volume of cases being run through it. Instead it grinds out a very poor substitute for justice.

Reducing the number of laws and reducing the ability (or requirement) for prosecutors to secure serious jail time for so many offenses would reduce mass incarceration and start to unclog our court system.  We should do these things.  Unfortunately, they won’t be enough.

While the popular picture among de-incarceration advocates is of prisons and courtrooms is of a system choked with nonviolent drug offenders, in fact, the system handles an immense amount of real, harmful crime.  We’re not going to decriminalize theft or assault or robbery, nor should we.  If we really want a justice system that is not too overwhelmed to provide justice, we are going to have to focus on reducing crime....

Mark Kleiman of NYU, who has taught me most of what I know about crime policy, wrote a brilliant book called “When Brute Force Fails,” on the ways we can retool the justice system to actually reduce crime, rather than simply punishing it more harshly.  Kleiman is liberal, but conservatives should have no fear: This is not a book about how we need loads more social spending and liberal policies to address the “root causes.”  This is a book about how we can police and punish more effectively.  The sort of proposals that should be welcomed by left and right alike.

Kleiman’s ideas and insights are too many to sum up in a column, so I’ll focus on a core observation: Bad policing, and bad prison policy, can create more crime. Our current justice system provides what Kleiman calls “randomized draconianism”: Your odds of getting caught and punished are not very high, but if you are caught, you’ll get treated very harshly.  The likelihood of punishment is so low that there is no deterrent effect to prevent crime, and the severity of punishment is so harsh that it may simply make those who are caught more likely to commit further crimes....

What’s the alternative?  Raise the odds of punishment, and lower the severity.  That means more police on the streets, focused on steadily reducing crime hot-spots and making it unattractive to take up a life of crime in the first place. It means probation and parole systems that provide much more intensive monitoring, but use lighter sanctions like a night or two in jail, rather than revoking someone’s parole and sending them back to prison for five years.  It means exploring new technologies that allow us to put people under “house arrest” of varying intensity.  In the short term, this will mean spending more money and effort on the system.  But there’s good news: Prison is so expensive that even many expensive programs can save money on net if they keep people out of long prison terms.

October 2, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Tuesday, September 26, 2017

"Retributive Justifications for Jail Diversion of Individuals with Mental Disorder"

The title of this post is the title of this new paper posted to SSRN authored by E. Lea Johnston. Here is the abstract:

Jail diversion programs have proliferated across the United States as a means to decrease the incarceration of individuals with mental illnesses.  These programs include pre-adjudication initiatives, such as Crisis Intervention Teams, as well as post-adjudication programs, such as mental health courts and specialized probationary services.  Post-adjudication programs often operate at the point of sentencing, so their comportment with criminal justice norms is crucial.

This article investigates whether and under what circumstances post-adjudication diversion for offenders with serious mental illnesses may cohere with principles of retributive justice.  Key tenets of retributive theory are that punishments must not be inhumane and that their severity must be proportionate to an offender’s desert.  Three retributive rationales could justify jail diversion for offenders with serious mental illnesses: reduced culpability, the avoidance of inhumane punishment, and the achievement of punishment of equal impact with similarly situated offenders.  The article explores current proposals to effectuate these rationales, their manifestations in law, and how these considerations may impact decisions to divert individuals with serious mental illnesses from jail to punishment in the community.

September 26, 2017 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Sunday, September 24, 2017

On eve of federal sentencing, any final predictions (or desires) for Anthony Weiner's punishment for underage sexting?

As previewed in prior posts linked below and as set up in this new AP piece, the next chapter (and I fear not the last) in the sordid sorry story of Anthony Weiner will play out tomorrow in a federal court in New York.  Here are the basics:

It seemed as if Anthony Weiner had hit rock bottom when he resigned from Congress in 2011. "Bye-bye, pervert!" one heckler shouted as the Democrat quit amid revelations that he had sent graphic pictures of himself to women on social media. Time has shown his self-destructive drama had only just begun.

Weiner, 53, is set to be sentenced Monday for sending obscene material to a 15-year-old girl in a case that may have also have played a role in costing Hillary Clinton — former boss of Weiner's wife, Huma Abedin — the presidential election.

Federal prosecutors have asked for a sentence of slightly more than two years behind bars because of the seriousness of the crime, in which Weiner sent adult porn to the girl and got her to take her clothes off for him on Skype. "The defendant did far more than exchange typed words on a lifeless cellphone screen with a faceless stranger," prosecutors wrote to the judge. "Transmitting obscenity to a minor to induce her to engage in sexually explicit conduct by video chat and photo — is far from mere 'sexting.'"

But Weiner's attorneys contend he is a changed man who has finally learned his lesson, calling his compulsive sexting a "deep sickness" best treated without time behind bars. The memo also suggested Weiner himself was a victim of the scandal, saying the North Carolina high school student initiated contact with him because she "hoped somehow to influence the U.S. presidential election" and write a tell-all book.

I have just had a chance to review this short sentencing memo that the government filed a few days ago. I found remarkable both the stupidity of Weiner's decision to "sext" with in an obviously underage girl, as well as the government's conclusion that applicable guideline calculations produce "offense level of 33 [meaning] the resulting Guidelines range would be 135 to 168 months’ imprisonment, but for the statutory maximum of 120 months’ imprisonment."  Luckily for Weiner, the "the Government agreed that a sentence within the range of 21 to 27 months’ imprisonment (which would be the applicable Guidelines range without application of the cross-references) would be fair and appropriate under the specific circumstances of this case."  And the Government makes this assertion in support of a prison sentence in that range: "Weiner’s demonstrated history of professed, yet failed, reform make it difficult to rely on his present claim of self-awareness and transformation. On this record, a custodial sentence is necessary to truly effect specific deterrence and prevent the defendant from committing this crime in the future."

Meanwhile, in his lengthy sentencing memo includes, in its words, "Anthony’s own deeply personal meditation to the Court on sickness and recovery (Exhibit 1 to this submission) that speaks most powerfully to his progress."  It also asserts, I think accurately, that Weiner's "wrongful conduct is on orders of magnitude less egregious than any case involving sexually explicit communications with a teenager that has ever been prosecuted in this district" and that "factors the Court must consider under 18 U.S.C. § 3553(a) — in isolation and taken together — demonstrate that a sentence of imprisonment is not required here and would result in punishment greater than necessary to achieve the goals of sentencing."

So, dear reader, what do you expect Anthony Weiner will get at sentencing?  I tend predict a "split the difference" outcome in cases like this, so I would be inclined to expect a sentence of a year and a day for him.  Something even a bit shorter would not surprise me, and I would actually be surprised if Weiner got anything more than 21 months.  In the end, at least for me, I have a hard time viewing Weiner's extraordinary stupidity as the involving the kind of evil or danger that really justifies a long federal prison term. 

Prior related posts:

September 24, 2017 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Saturday, September 23, 2017

"Mitigating America’s Mass Incarceration Crisis Without Compromising Community Protection: Expanding the Role of Rehabilitation in Sentencing"

The title of this post is the title of this new paper posted to SSRN authored by Mirko Bagaric, Gabrielle Wolf and William Rininger. Here is the abstract:

The United States is in the midst of an unprecedented mass incarceration crisis.  Financially, this is no longer readily sustainable, even for the world’s largest economy.  Further, the human suffering that prison causes is no longer tolerable from the normative perspective.  Nevertheless, lawmakers have failed to propose or adopt coherent or wide-ranging reforms to mitigate this crisis.  The crisis has emerged over the past forty years largely as a result of the emphasis on community protection as the most important objective of sentencing and the fact that the primary means of pursuing community protection during this period has been incapacitation in the form of imprisonment.

In this Article, we argue that policy makers and courts took a profoundly wrong turn by equating community protection almost solely with incapacitation.  A more progressive and often effective means of protecting the community is by rehabilitating offenders.  In theory, rehabilitation is a widely endorsed sentencing objective, so it should already influence many sentencing outcomes, but the reality is otherwise.  Rehabilitation is rarely a dominant or even weighty consideration when courts sentence offenders.  This is attributable, at least in part, to skepticism regarding the capacity of criminal sanctions to reform offenders.  This approach is flawed.  Empirical data establishes that many offenders can be rehabilitated.

In this Article, we argue that sentencing courts should place greater weight on the objective of rehabilitation and that such a change would significantly ameliorate the incarceration crisis, while enhancing community safety. We make three key recommendations in order to implement our proposal.  First, it is necessary to promulgate rehabilitation as a means of protecting the community.  Second, we propose that the role of rehabilitation in sentencing should be expanded.  In particular, and contrary to current orthodoxy, rehabilitation should have a meaningful role even in relation to very serious offenses.  In indicating the role that rehabilitation has played in their decisions, courts should clearly articulate how they have adjusted penalties in light of assessments of offenders’ potential for rehabilitation. Third, it is necessary to ensure that decisions by courts relating to the prospects of rehabilitation are made on the basis of more rigorous, empirically-grounded and transparent criteria.

To this end, we examine the under-researched topic of the role that instruments that predict the likelihood of an offender’s recidivism should play in guiding sentencing decisions.  The solutions advanced in this Article will provide the catalyst for rehabilitation to assume a much larger role in sentencing and thereby significantly ameliorate the incarceration crisis.

September 23, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (6)

Wednesday, September 20, 2017

"Jeff Sessions’s evidence-free crime strategy"

The title of this post is the headline of this new Hill commentary authored by prominent criminologist David Kennedy. Here are excerpts: 

The emerging Department of Justice crime-control strategy is a criminologist’s nightmare. Over the last thirty years researchers, law enforcement leaders and communities have pushed for smarter, better violence prevention — spurred in large part by the incredible violence and community destruction of the crack era, and the utter failure of existing approaches to do anything about it.

It’s paid dividends. We now know a lot about what works and what doesn’t. That knowledge begins, as Attorney General Jeff Sessions himself says, with the fact that “the vast majority of people just want to obey the law and live their lives. A disproportionate amount of crime is committed by a small group of criminals.”

That’s exactly right. The most important discovery about violence in the last decades is that it’s what Harvard University researcher Thomas Abt calls “sticky.” Studies in city after city show that very small, active networks of extraordinarily high-risk victims and offenders — about one-half of 1 percent of the population — are associated with 60 percent to 75 percent of all homicide, and that 5 percent or so of blocks and street corners is similarly associated. And while many people use drugs, those involved in meaningful drug distribution — particularly the most active and violent of them — are also relatively few.

So what should we to do about this “small group of criminals?” It’s a critical question. Sessions has called for a return to the “war on drugs” menu — more law enforcement, mandatory minimums and long sentences, even the anti-drug D.A.R.E. program — plus a new focus on heavy immigration enforcement and a withdrawal from DOJ attention to police misconduct. But we now know for a fact that these things don’t work, and can actually make matters worse.

To understand why, and to see what does work, we should look to the groundbreaking front-line police and community actors who have been developing creative solutions that are more effective, less harmful and profoundly more respectful of traumatized and alienated communities than the old and demonstrably ineffective and discredited menu. They’re embracing new ways of focusing community engagement, social services and law enforcement to both protect and ensure accountability amongst Sessions’ “small group of criminals.” Work I’ve been involved in has law enforcement, community leaders and service providers sit down face-to-face with gang members and drug dealers, emphasize that the community hates the violence, offer to help anybody who wants it and explain the legal risks that come with violence. The result can be dramatic reductions in both violence and enforcement....

The best new crime prevention work recognizes the absolute centrality of what scholars call “legitimacy” — the community perception that authorities are respectful, unbiased, well-intentioned and have the standing to expect compliance. Breaking the bond between communities and the law does profound damage. As legitimacy goes down, crime reporting and cooperation with police and prosecutors go down, and violence goes up. Recognizing the absolute centrality of trust, police are backing away from stop-and- frisk and “zero tolerance” and working hard to reduce police violence and enhance accountability.

The opposite is clearly happening now in Hispanic communities, newly terrified of immigration enforcement: Houston police chief Art Acevedo says robbery, assault, and rape reporting by Hispanic communities are all down, the latter by 43 percent. The administration’s new policies may in fact be creating a safety net for predators....

And draconian sentencing — despite its frequent common-sense appeal — simply isn’t that effective. Violent crime is overwhelmingly a young man’s game, and long sentences just keep prisoners locked up well after they would have stopped of their own accord: a Stanford study shows that three-strikes “lifers” released recently under California prison reform had a 1.3 percent recidivism rate, against nearly 45 percent for other California inmates. They don’t deter that well, in part because criminals discount their futures just like middle-class home buyers do: offenders have been found to view a 20-year prison sentence as only about six times as severe as a one-year stint. Offenders frequently don’t know that the massive federal sentences they may be exposed to even exist until they’re charged and it’s much too late.

Enforcement has also proved utterly pointless with respect to drug markets, where locked-up dealers are easily replaced by new ones. The drug war was incapable of keeping drugs out of the country, from being produced domestically or from being sold and bought freely. It’s unlikely to do better in an age of fentanyl mail-ordered over the dark web. And as for D.A.R.E. — words fail. Criminologists are a cranky bunch, but there’s one thing that they all agree on: D.A.R.E. doesn’t work. By peddling misinformation about the dangers of drug use and telling huge numbers of impressionable kids that drugs and drug use are everywhere, the program can even increase abuse.

We need effective crime reduction strategies, just as we did in the '80s: Even before some cities recently started to see recent increases in homicide, violence suffered by poor minority communities — especially, young black men — was at intolerable levels. The opioid epidemic is hitting the country so hard it is reversing historic gains in life expectancy. We know enough to do better this time. We should do so, not willfully repeat the glaring and horrific mistakes of the recent past.

September 20, 2017 in National and State Crime Data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, September 15, 2017

Advocacy for the "the smart way to get 'tough' about crime"

Brandon Garrett has this new CNN commentary discussing some of the themes in his new book titled "End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice." Here is hoe it starts and ends:

It is time to retire the phrase "tough on crime."  There is nothing tough about the harsh punishments that contributed to mass incarceration in this country.  In fact, the opposite is true; as the latest data show, a nationwide push in the past decade to move away from these failed approaches has coincided with a remarkable decline in crime.  Instead of being "tough," we need to be smart.

Multiple states have passed laws to end cash bail, reduce mandatory sentences, invest in addiction and mental health treatment, and divert convicts toward alternatives to incarceration.  Even states such as Louisiana, with the highest incarceration rate in the world, just passed reforms and is currently reviewing 16,000 sentences for possible reduction.  Cities such as Oklahoma City and Houston have taken new steps to reduce jail populations.

And crime continues to fall.  According to a Brennan Center report released on Wednesday, violent crime is back down again so far in 2017, after a spike in 2015-16 in certain cities.  This year is projected to be the year with the second-lowest crime rate in 25 years.  Murder rates are down 2.5%, with declines in cities such as Chicago that accounted for the blip in 2015 and 2016.

So contrary to what some politicians say, there is no national crime wave; it is more like a lake drying up.  Even the localized crime bumps in a handful of cities seem to be subsiding.  We don't need a new war on crime when we are winning the peace....

Now is the time to redouble efforts to focus on deeper reductions in imprisonment, charging, sentencing and release and reentry of prisoners.  Even if the President and the attorney general are trying to redouble the war on drugs, as if we were still living in the 1980s, those days are far behind us.  Reform is working and crime is still falling.  We need to push it farther to shrink our bloated criminal justice system.  That is the smart way to get "tough" about crime.

September 15, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Thursday, September 14, 2017

"Fragmentation and Democracy in the Constitutional Law of Punishment"

The title of this post is the title of this recently published paper that I recently noticed authored by Richard Bierschbach.  Here is its abstract:

Scholars have long studied the relationship of structural constitutional principles like checks and balances to democracy.  But the relationship of such principles to democracy in criminal punishment has received less attention.  This Essay examines that relationship and finds it fraught with both promise and peril for the project of democratic criminal justice.  On the one hand, by blending a range of inputs into punishment determinations, the constitutional fragmentation of the punishment power can enhance different types of influence in an area in which perspective is of special concern.  At the same time, the potentially positive aspects of fragmentation can backfire, encouraging tunnel vision, replicating power differentials, and making it easier for more well-resourced voices to drown out others.  Thus, the same structure that generates valuable democratic benefits for punishment also falls prey and contributes to serious democratic deficits.  But despite its drawbacks, we cannot and should not abandon the Constitution’s fragmented approach to crime and punishment.  The more promising move is to look for ways to make different loci of influence and representation more meaningful within our existing framework, doing more to ensure that multiple voices are heard.

September 14, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Jared Kushner convening White House meeting on federal prison programming and reentry issues

As reported in this Washington Post piece, headlined "Kushner to gather bipartisan group to come up with ideas for federal prisons," an event scheduled for today in the White House suggests criminal justice reform issues are not completely dormant at the federal level. Here are the details:

President Trump’s son-in-law and senior adviser, Jared Kushner, will convene a roundtable Thursday at the White House to gather recommendations for improving mentoring and job training in federal prisons, a departure from the administration’s focus on more punitive crime-fighting measures.  A bipartisan group of about two dozen elected officials, religious leaders and business leaders were invited to the first major criminal justice-related event held by the Kushner-led Office of American Innovation, which in recent months has brought together technology executives to search for ways to make government more efficient.

Kushner’s interest in corrections policy is personal: His father, Charles Kushner, a real estate executive, was sentenced in 2005 to two years in federal prison after pleading guilty to tax evasion. Jared Kushner has said the experience gave him a glimpse of the challenges inmates and their families face in and outside of prison.  “There is a lot of agreement from the left and the center and the right that once a person has committed a crime we should make sure we give them the best opportunities to try to live a productive life after serving their time,” Kushner told The Washington Post in a telephone interview.  “We’re not looking to train better criminals.”

The event, which had not been officially announced as of Wednesday morning, comes after a months-long push by Trump and Attorney General Jeff Sessions for more aggressive prosecution of drug offenders and illegal immigrants.  In May, Sessions jettisoned an Obama administration policy that instructed federal prosecutors to avoid charging low-level criminals with drug offenses that would trigger severe mandatory-minimum sentences, a shift projected to boost the prison population.  Those efforts are at odds with a growing consensus that the mandatory-minimum sentences that proliferated during the “war on drugs” fueled crowded, costly prisons that unduly burden taxpayers and do not improve public safety.  A number of states, including several led by Republicans, are curbing their inmate populations and even closing prisons by reducing mandatory-minimum sentences and expanding parole and probation.

Kushner’s private discussions in recent months with members of Congress and outside groups have included sentencing reform, according to participants, but Thursday’s meeting is more narrowly focused on preparing inmates to reenter society.  Neither Sessions nor his newly appointed Bureau of Prisons director, retired Army Gen. Mark S. Inch, will attend, although some Justice Department officials are expected to participate.

Criminal justice advocates invited to the roundtable said the gathering is a positive first step, and they called for expanding drug and mental health treatment, vocational training, mentoring programs and placement in halfway houses. “Regardless of what you think about who goes to prison or how long they need to be there, most people come out eventually, so let’s make sure they are better off than when they came in,” said Mark Holden, general counsel for Koch Industries, a leading conservative proponent of reducing incarceration levels.  “Of course I want to see the dialogue on criminal justice issues continue and looked at comprehensively.  We need a holistic solution.”

The federal prison population is expected to grow by 2 percent over the coming year, rising by 4,171 inmates, to a total of 191,493, and reversing the downward trend of the past four years, according to the Trump administration’s proposed budget.  Yet the proposal calls for a 14 percent reduction in federal prison jobs, including 1,850 fewer corrections officers.  Many of those positions are vacant.  The Justice Department is seeking $10 million to cover the costs of food, health care, transportation and programs for the additional inmates, but it’s unclear how much money would be allocated to education and vocational training....

Asked about federal funding, Kushner said, “We’re not at a place where we are prescribing solutions. We’re bringing people together and generating ideas. If prisoner reentry programs are successfully executed, it’s usually a good investment.”  A request for recommendations from participants before the conference said, “While suggestions for the investment of Federal resources are appreciated, please also be sure to highlight opportunities that do not require Federal funding.”

On Capitol Hill, Rep. Douglas A. Collins (R-Ga.) has introduced a bill that would require federal prisons to assess inmates’ needs and offer rehabilitation programs. Co-sponsored by House Judiciary Chairman Bob Goodlatte (R-Va.), the measure requests $250 million over the next five years for prison education programs.

Among the elected officials slated to participate in Thursday’s program are Housing and Urban Development Secretary Ben Carson, Labor Secretary Alex Acosta, Sen. John Cornyn (R-Tex.), Sen. Sheldon Whitehouse (D-R.I.), and Republican Govs. Matt Bevin of Kentucky and Sam Brownback of Kansas.

September 14, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (5)

Thursday, September 07, 2017

"Drug War Reform: Criminal Justice, Recovery, and Holistic Community Alternatives"

The title of this post is the title of this article recently posted to SSRN authored by Joshua Horton. Here is its abstract:

This article investigates the issues and possible societal solutions to the Drug War, Opiate Epidemic, Mass Incarceration and other collateral consequences of current policies in three distinct parts. First, it discusses the DeFelonization of drug possession and the ramifications this would have nationally. Next, it addresses the influx of drug users into the community that are currently receiving little to no rehabilitation behind bars. This country will need to find a revenue source to fund a massive rehabilitation effort. It will come from marijuana legalization. And lastly, I investigate an up and coming approach to recovery called Recovery Community Organizations (RCO's). These entities incorporate an innovative, holistic bottom up approach, as opposed to the current top-down, massive, paternalistic governmental and criminal justice approach.

September 7, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Monday, August 28, 2017

"Less Is More: How Reducing Probation Populations Can Improve Outcomes"

Download (3)The title of this post is the title of this notable new paper emerging from the Executive Session on Community Corrections at the Harvard Kennedy School.  Here is the paper's introduction:

This paper will argue that, similar to the growth in prisons that has resulted in our current state of mass incarceration, the tremendous growth in probation supervision in the United States over the past several decades should be reversed, and the entire system of probation significantly downsized.  Specifically, we argue here that while the number of people on probation supervision in the U.S. has declined over the past several years (as have the number of people incarcerated and crime rates), that decline should not only be sustained but significantly increased, with a goal of reducing the number of people under probation supervision by 50 percent over 10 years.  We then discuss New York City as an example of a jurisdiction that has successfully done this.

In many respects, the rationale for this argument mirrors the argument against mass incarceration.  In most jurisdictions, probation is a punitive system that attempts to elicit compliance from individuals primarily through the imposition of conditions, fines, and fees that in many cases cannot be met (Corbett, 2015; Klingele, 2013).  This is not only a poor use of scarce resources; it contributes to a revolving door in which individuals who cannot meet those obligations cycle back and forth between probation and incarceration without necessarily improving public safety.  In fact, the cycle of incarceration and supervision can actually threaten public safety, and it certainly has harmful and farreaching consequences for those who are caught up in it, including job loss, disconnection from family, and housing instability (Council of Economic Advisers, 2015).  Given this, along with national and local data and examples that clearly demonstrate that reducing “mass probation” can go hand in hand with a reduction in the number of people incarcerated and ongoing declines in national and local crime, it begs the question of why so many jurisdictions continue to promulgate this punitive approach.

Because probation is the most severely underfunded and the least politically powerful of all criminal justice agencies, there is no likelihood of any massive infusion of new resources into the field.  Thus, the limited resources saved from this downsizing may be used to invest in community-based programs that provide employment, substance abuse, and mental health treatment to the remaining population — those that pose the highest public safety risk — as a way to significantly reduce that risk and avoid unnecessary monitoring and supervision.  A portion of these savings should also substitute for the rampant use of probation fees used throughout the U.S. as a way to pay for a structurally underfunded system.  These fees are unjust, counter-productive, and antithetical to the legitimacy of any system of justice (Martin, Smith, and Still, 2017).

August 28, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Sunday, August 27, 2017

"The Use and Abuse of Mutual-Support Programs in Drug Courts"

The title of this post is the title of this notable new article authored by Sara Gordon now available via SSRN.  Here is the abstract:

There is a large gap between what we know about the disease of addiction and its appropriate treatment, and the treatment received by individuals who are ordered into treatment as a condition of participation in drug court.  Most medical professionals are not appropriately trained about addiction and most addiction treatment providers do not have the education and training necessary to provide appropriate evidence-based services to individuals who are referred by drug courts for addiction treatment.

This disconnect between our understanding of addiction and available addiction treatment has wide reaching impact for individuals who attempt to receive medical care for addiction in this country, as well as for those individuals who are compelled by a drug court to receive that treatment.  Instead of receiving evidence-based treatment, most drug court participants are referred to mutual-support groups and programs based largely or entirely on 12-step principles.  Mutual-support groups, while well-intentioned and helpful as a supplement to evidence-based addiction treatment, are not a substitute for scientifically valid addiction treatment and should not constitute the primary form of medical assistance received by drug court participants.

This Article argues that drug and other specialty courts can be part of the transformation of the public perception of addiction, as well as the integration of addiction treatment into mainstream medicine by incorporating and endorsing evidence-based strategies for the treatment of addiction, including psychosocial and pharmacological treatments.  Moreover, by adopting these treatments more readily and providing more opportunities for drug court participants to receive evidence-based treatment, drug courts can dramatically improve treatment outcomes for participants.

August 27, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Will deadly protests impact high-profile sentencing in India? Should they?

A classic hypothetical question for hard-core fans of a strictly utilitarian approach to punishment is whether they should and would be inclined to go easy or even release a guilty criminal in order to avoid possible harms being threatened by an angry mob.  (The even harder variation is whether they would punish an innocent person to mollify a mob.)  I bring this up because, as reported in this Reuters article, concerns about mob violence are now not hypothetical in the northern part of India.  The article is headlined "After deadly protests, Indian states in lockdown for 'godman's' rape sentencing," and here are excerpts:

India is deploying thousands of riot police and shutting down internet services in two northern states, as it prepares for the sentencing on Monday of a self-styled ’godman’ whose followers went on the rampage after he was convicted of rape on Friday.

Gurmeet Ram Rahim Singh’s cult Dera Sacha Sauda has a vast rural following in Punjab and Haryana states, where frenzied mobs burned down gas stations and train stations and torched vehicles after a local court found him guilty of raping two women in a 2002 case.  At least 38 people were killed and more than 200 injured in the violence in Haryana, officials said, drawing sharp criticism for the state government run by Prime Minister Narendra Modi’s Bharatiya Janata Party (BJP).

The case has also highlighted the Indian heartland’s fascination with spiritual gurus, who enjoy immense political clout for their ability to mobilize millions of followers frustrated by the shortcomings of the state.  Security forces have cordoned off a jail in Rohtak city, 70 km (44 miles) from New Delhi, where Singh - also known as the guru of bling for the clothes he wears in the movies he has starred in - is being held.

The judge who convicted Singh will hold a special hearing inside the prison in Rohtak around 2.30 pm local time (0900 GMT) on Monday to decide the punishment, in a move that officials hope will prevent his followers from gathering in the streets like they did on Friday. Singh faces a minimum of seven years in prison.

The town of Sirsa, home to Dera’s headquarters, is already under lockdown, BS Sandhu, Haryana’s police chief, told Reuters. School and colleges have been ordered shut, the government said....

In godman Singh’s two films, “Messenger of God” and its sequel, there are sequences in which he fights off villains and tosses burning motorbikes into the air. In his spiritual avatar, Singh dresses in plain white traditional clothes, giving sermons or planting trees. In the movies he dons bejeweled costumes, rides motorbikes and sends bad guys flying.

The Haryana government has faced severe criticism from opposition Congress and a state court for failing to stop the rioting and vandalism. Singh, whose verified Twitter profile calls him a saint, philanthropist, sportsman, actor, singer, movie director, writer, lyricists, and autobiographer, has been photographed with senior BJP leaders including Haryana chief minister Manohar Lal Khattar....

Singh's conviction in a rape case is the latest in a series of cases involving spiritual leaders who have been accused of sexually abusing followers, amassing untaxed money and finding favor with politicians. Besides the rape charges, he is also under investigation over allegations that he convinced 400 of his male followers to undergo castration, allegations he denies.

August 27, 2017 in Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (3)

Tuesday, August 22, 2017

Looking at US prison history while charting "How to End Mass Incarceration"

The quoted title of this post is the headline of this lengthy Jacobin commentary authored by Roger Lancaster, which starts with an extended review of prison history in the United States.  I recommend the full piece, and here is a how it gets started:

The United States has not always been the world’s leading jailer, the only affluent democracy to make “incapacitation” its criminal justice system’s goal.  Once upon a time, it fashioned itself as the very model of what Michel Foucault called “the disciplinary society.”  That is, it took an enlightened approach to punishment, progressively tethering it to rehabilitative ideals.  Today, it is a carceral state, plain and simple.  It posts the highest incarceration rate in the world — as well as the highest violent crime rate among high-income countries.

Politicians, reporters, and activists from across the political spectrum have analyzed the ongoing crisis of mass incarceration.  Their accounts sometimes depict our current plight as an expression of puritanism, as an extension of slavery or Jim Crow, or as an exigency of capitalism.  But these approaches fail to address the question that ought to be foremost in front of us: what was the nature of the punitive turn that pushed the US off the path of reform and turned its correctional system into a rogue institution?

While the state-sanctioned brutality that now marks the American criminal justice system has motivated many activists to call for the complete abolition of prisons, we must begin with a clearer understanding of the complex institutional shifts that created and reproduce the phenomenon of mass incarceration.  Only then will we be able to see a clear path out of the current impasse.

August 22, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

"In Defense of Substantial Sentencing Discretion"

The title of this post is the title of this new article posted on SSRN authored by Antje du Bois-Pedain. Here is the abstract:

This article develops an ideal of sentencing discretion as consisting in sufficient dispositional flexibility for the trial judge to set, on behalf of the polity, reasonable terms for the continuance of relations with the offender in view of his crime. This ideal requires trial judges to have what may be termed “substantial” sentencing discretion: discretion that is exercised with direct reference to the values and goals penal sanctions are expected to serve, and where it is this quality of value-based engagement that provides the justification for the decision.  The article engages with empirical research into sentencing that helps us address the strength of the case for and against substantial sentencing discretion, and ultimately defends substantial sentencing discretion on functional as well as ethical-political grounds.

August 22, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, August 14, 2017

Imaginging how the internet "could put an end to prisons as we know them"

Gosh knows the modern digital revolution and the internet has brought the demise of a number of brick-and-mortar institutions ranging from music stores to travel agencies.  But this new article from Australia makes the case that the internet could bring an end to brick-and-mortar prisons.  The intriguing piece is headlined "Internet of incarceration: How AI could put an end to prisons as we know them," and here is how it gets started:

Dan Hunter is a prison guard's worst nightmare. But he's not a hardened crim.  As dean of Swinburne University's Law School, he's working to have most wardens replaced by a system of advanced artificial intelligence connected to a network of high-tech sensors.

Called the Technological Incarceration Project, the idea is to make not so much an internet of things as an internet of incarceration. Professor Hunter's team is researching an advanced form of home detention, using artificial intelligence, machine-learning algorithms and lightweight electronic sensors to monitor convicted offenders on a 24-hour basis.

"If we had to use human beings, the cost of monitoring every single type of interaction would be prohibitively expensive," he says. But new technologies are now capable of providing automated surveillance at a fraction of that expense, he says, using equipment that's already in existence or under development.

Under his team's proposal, offenders would be fitted with an electronic bracelet or anklet capable of delivering an incapacitating shock if an algorithm detects that a new crime or violation is about to be committed. That assessment would be made by a combination of biometric factors, such as voice recognition and facial analysis.

His vision is futuristic, but it isn't simply technological fetishism. He's convinced such automation will make for a better society. Under his proposal, the main costs of incarceration are borne by the offender and his or her family, not by the state, while law-breakers are isolated from each other, decreasing the risk of offenders becoming hardened by the system.

While technology has transformed our society, the jails of the 21st century operate pretty much as they did 100 years ago. "We are at the point now where we can fundamentally rethink the way in which we incarcerate people," Professor Hunter says. "If what we want to do is we want to keep the community safe, if we want to have the greatest possibility of rehabilitation of the offender and if we want to save money, then there are alternatives to prison that actually make a lot of sense."

Readers may recall this prior post flagging this recent paper authored by Dean Hunter and colleagues titled "Technological Incarceration and the End of the Prison Crisis"

August 14, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2)

Wednesday, August 09, 2017

"White-Collar Showdown"

The title of this post is the title of this essay recently posted to SSRN and authored by Mihailis Evangelos Diamantis. Here is the abstract:

The Sentencing Commission and the judiciary do not see eye to eye when it comes to punishing white-collar fraudsters.  Recent survey data collected by Judge Bennett and his co-authors confirms that judges prefer to sentence fraudsters at or below the minimum of the Sentencing Guidelines range.  This article asks whether that data should give the Sentencing Commission pause.  The survey results might just substantiate the Sentencing Commission's worry that judges are prone to cognitive bias in favor of white-collar defendants, with whom they often overlap demographically.

After suggesting that judges have no particular insight into the factors relevant to fraud sentencing, the article assesses the matter from criminal theory first principles: deterrence, rehabilitation, and retribution. It concludes — contrary to the apparent views of most judges and many white-collar criminal law scholars — that we should not be so quick to dismiss the guidelines as too harsh.

August 9, 2017 in Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Saturday, August 05, 2017

"Criminal justice reformers are hooked on drug courts, they should kick the habit"

The title of this post is the headline of this notable new commentary by Jasmine Tyler in The Hill. Here are excerpts:

With opioid overdose deaths hitting record highs throughout the US, and the White House Commission calling for declaring a state of emergency, many are looking for new solutions to addiction and overdose. But one proposal popular in some circles — the expanded use of drug courts — is not the perfect solution some make it out to be.

Drug courts are an old idea. Created in the 80s to expedite the overwhelmed court dockets created by the drug war, they have already enjoyed a great deal of fanfare and funding — from both sides of the political aisle. But despite the good intentions that often underpin them, they are a flawed solution.

These courts are squarely housed in the criminal justice system, where there is little medical expertise or care available but where punitive sanctions are plentiful. Physicians for Human Rights recently reported that drug courts “routinely fail to provide adequate, medically sound treatment for substance use disorders, with treatment plans that are at times designed and facilitated by individuals with little to no medical training.”

And, even though relapse is an expected part of recovery, people brought before a drug court with a positive drug test are often jailed, and can end up serving lengthy periods of time — sometimes more than had they been prosecuted through the regular criminal system.

Interestingly, the White House Commission didn’t even mention drug courts in the interim report released on July 31, but they did support a number of cutting edge, public health centered, responses such as expanding harm reduction approaches like medication-assisted therapy.

Other solutions the commission should explore for their final report include promoting diversion programs to keep people out of the criminal justice system, making the overdose prevention medication Naloxone available over the counter, and decriminalizing possession of drugs for personal use....

A recent broad study found that there is no evidence that compulsory treatment is effective and may do more harm, and even the Government Accountability Office has found the purported cost-savings difficult to substantiate.

In my days working as a sentencing advocate with public defenders, clients would frequently ask for jail time in lieu of drug courts. This wasn’t because they had no concerns for their own health and well-being, but the opposite. They were deeply concerned with their own health and well-being and felt drug courts would cause more problems for them in the long run....

Beyond the many questions about their effectiveness, drug courts do not address the fundamental reality that any kind of criminal sanctions are simply inappropriate for the overwhelming majority of drug offenders, whose only crime is the personal use of drugs or possession of drugs for personal use. In fact, by offering a notionally “softer” kind of criminalization, drug courts may actually help entrench that fundamentally untenable paradigm....

Drug courts might be a tool in the toolbox of a better system if they are focused only on offenses other than drug use or possession — for example, property crimes committed in connection with drug dependence. But even in that case, they should only be considered if they are set up to provide treatment that is medically appropriate, as well as other social supports, and if — and this is a big if — courts would truly take high risk, high need defendants as the National Association of Drug Court Professionals says they should.

Our communities deserve 21st century solutions and drug courts are, at best, a better version of a broken and outmoded system. They may sometimes have a useful place in the reality we’re stuck with, but they certainly aren’t the way forward. Instead of looking back at a criminal justice solution that has failed, the commission should stay on the right track and focus on health-based programs that address the opioid crisis.

August 5, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (8)

Wednesday, August 02, 2017

"Sentencing by Computer: Enhancing Sentencing Transparency and Predictability, and (Possibly) Bridging the Gap between Sentencing Knowledge and Practice"

The title of this post is the title of this interesting looking new article available via SSRN authored by Mirko Bagaric and Gabrielle Wolf. Here is the abstract:

Computer technology is rapidly infiltrating and changing many aspects of the law. Judicial decision-making has, however, remained largely impervious to technological developments. Sentencing is one of the most controversial, complex and dynamic legal areas.  Sentencing law is also fundamentally broken and has resulted in a mass incarceration crisis, which is the most serious sociolegal problem currently afflicting the United States.  Despite this, it is also ostensibly one of the areas of law that is most amenable to automated decisionmaking.  This is because the relevant variables that inform sentencing decisions are normally clear, especially in circumstances where an offense attracts a presumptive or fixed penalty.

In this Article, we examine the desirability of computers, rather than judges, making sentencing decisions. Some disadvantages may be associated with sentencing by computer, including the possibility that there could be less opportunity to adapt penalties to the specific facts of a case than if a judge made the decision.  However, if an algorithm is developed and applied in a clear and transparent manner, the benefits of computerized sentencing will outweigh the potential disadvantages.  Indeed, we argue that computerized sentencing has the potential to achieve superior outcomes to sentences imposed by judges.  In particular, it can lead to greater transparency, predictability and consistency in decision-making, and eliminate the subconscious bias that currently afflicts the decisions of some judges.  

Moreover, the introduction of computerized sentencing could be the catalyst for a much needed, wide-ranging reassessment of substantive sentencing law, as occurred four decades ago when the United States’ sentencing system changed from an indeterminate system to the largely prescriptive process that exists today.  A fundamental review of sentencing law would almost inevitably close the gap between sentencing knowledge and practice, thereby resulting in profound community benefits, including enhanced community safety and a reduction in the number of prisoners.

August 2, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, July 24, 2017

"Nine Lessons About Criminal Justice Reform: What Washington can learn from the states"

The title of this post is the headline of this extended essay by Bill Keller published last week at The Marshall Project. I recommend the piece in full, and here are excerpts focused on some of Bill's most sentencing-specific lessons:

“Reform” is one of those ambiguous words that mean different things to different people.  I think of reform as something that aims to reduce the numbers of Americans who are removed from society and deprived of their freedom, and to do it without making us less safe.  In 1972, when I was starting my newspaper life at The Oregonian, 93 out of 100,000 Americans were in state or federal prisons.  By 2008 the incarceration rate had grown nearly six-fold, to 536 per 100,000, and it has hovered in that vicinity ever since. That’s not counting the hundreds of thousands held in county jails on any given day or those confined in the juvenile justice system or immigrant detention.

Every year about 650,000 of those prisoners are released back into the world.  We know that most of them will be unemployed a year later, and that two-thirds of them will be rearrested within three years.  We have a corrections system that fails to correct.

Here are a few lessons Washington can learn from the states.

Lesson 1: It is possible to reduce incarceration and crime at the same time. ...

Lesson 3: Probably the most effective way to reduce incarceration is not to lock people up in the first place — at least not so many, and not for so long....

Lesson 4: While the front end is important, don’t neglect the back end....

Lesson 5: Be wary of reformers who suggest you can cut incarceration drastically by releasing low-level, nonviolent offenders. ...

Lesson 6: Prison reform doesn’t necessarily mean a huge windfall for taxpayers. ...

Lesson 8: Many states are finding that incentives work better than mandates.

July 24, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

Sunday, July 23, 2017

"North Dakota’s Norway Experiment: Can humane prisons work in America? A red state aims to find out."

The title of this post is the headline of this interesting new Mother Jones piece.  Here are a few excerpts from a piece that justifies a full read:

Scandinavian prisons tend to elicit eye rolls from law-and-order types weaned on the punitive American model.  Yet a growing number of state corrections officials are coming to the realization that our approach is ineffective, costly, and cruel.  Fred Patrick, director of the Center on Sentencing and Corrections at the Vera Institute of Justice, cites the nation’s staggering recidivism rate — 77 percent of inmates released from state prisons are rearrested within five years.  “Once you realize that this system isn’t working well,” he says, “it’s fairly easy to pivot to: ‘How do we do something different?'”...

North Dakota has advantages as a laboratory for correctional reforms. Like Norway, it is sparsely populated and relatively homogeneous — race-based prison gangs hold little sway here.  Another advantage, Don Specter told me, is simply that the state government is sufficiently small that it can be responsive to the exertions of a visionary leader.  Yet [North Dakota prisons chief Leann] Bertsch and [deputy Karianne] Jackson have no illusions about transforming their system into a corrections utopia overnight.  “You have to pace yourself,” Bertsch says.

The Norwegian principle of “dynamic security” posits that warm relationships between inmates and staff reduce the potential for violence. American prisons typically try to create safe conditions by means of oppressive rules, random searches, and the threat of additional punishment. Transitioning from one approach to the other requires a profound paradigm shift and the ability to sell front-line prison workers on a brand new mindset.  “How do you get somebody who thinks they’re in law enforcement to figure out you need to be more of an empath, more of a social worker, a friend, and a mentor?” Jackson asks.

The correctional officers I met at the state penitentiary, ex-military all, weren’t outwardly hostile to the idea of cultivating relationships with prisoners, but it clearly didn’t come naturally to them.  For that reason, perhaps, the brass created a mandate: Guards in the segregation unit must have at least two conversations per shift with each of the inmates under their supervision.  “It’s worth a shot,” a corrections officer named Josh Hedstrom told me.  “Because what we were doing before wasn’t working.”

July 23, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, July 21, 2017

"Should California drop criminal penalties for drug possession?"

The question in the title of this post is the headline of this effective new opinion piece in the San Francisco Chronicle authored by Beau Kilmer and Robert MacCoun. Here are excerpts:

For better or worse, California likes to decide drug policy at the ballot box.  Voters have already approved marijuana legalization, but criminal sanctions against users of heroin, cocaine and other drugs are very much intact, though they’ve been moving in a more lenient direction.  It would not be surprising to see a proposition entirely eliminating criminal penalties for drug possession in the near future.

The removal of criminal penalties for drug possession — which is very different from allowing legal sales — is not a new idea. It has been implemented in other countries, and a joint statement from the United Nations and World Health Organization last month recommended the review and repeal of “laws that criminalize or otherwise prohibit … drug use or possession of drugs for personal use.”

California already moved in this direction in 2014 when voters approved Proposition 47, which reduced to a misdemeanor the possession of heroin, methamphetamine and other drugs. Possession of these drugs, however, is still a criminal offense.

Possession arrests and convictions can have devastating effects on users and their families — especially for young men of color, who are disproportionately targeted, and for immigrants, who can be deported for a criminal offense.  There are a number of additional sanctions associated with drug convictions; for example, they can make it harder to receive federal aid for college, or access public housing.  The stigma around criminalization can also make it harder for users to get help or discuss their problems with family members and health professionals.

On the other side, there are two main arguments for criminalizing possession.  First, there’s deterrence, with the goal of discouraging use by threatening users with sanctions. Second, there’s leverage — that is, using arrest and prosecution to steer those with substance-use disorders toward treatment....

We think that a constructive new debate about decriminalizing drug possession can start with three observations:

Decriminalizing drug possession and use does not give users a free pass to commit other crimes.  If substance use leads individuals to drive impaired or engage in violence, they should be punished for those offenses.  Jurisdictions could consider “bundling” decriminalization with innovative treatment and/or sanctioning regimes for those whose use leads them to commit crimes that threaten public safety.

Eliminating criminal penalties needn’t mean eliminating all sanctions on use. Many jurisdictions outside California punish cannabis possession with civil fines, and the same could be done for other drugs.  (A failure to pay the fine could still be punishable by jail time.)  Many citizens will be subjected to drug testing at work. And the informal social sanctions of stigma and shame will continue to play an important role, as we see with tobacco smoking and heavy alcohol use.

Decriminalizing possession does not have to be permanent. Risk-averse decision makers could adopt a sunset provision that automatically reimposes criminal penalties after a fixed amount of time unless the Legislature acts to extend the change in policy.

Californians have a lot to consider when it comes to decriminalizing possession, especially because we are still learning about the consequences of Prop. 47.  But now is the time for a rigorous discussion about removing criminal penalties for drug possession, rather than rushing to judgment in the heat of a future election season.

July 21, 2017 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

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)

Thursday, July 13, 2017

Still more from AG Sessions on crime and punishment... and some critical commentary thereon

This recent post reprinted some excerpts of a speech by Attorney General Sessions at the 30th DARE Training Conference, and AG Sessions hit some similar points in this subsequent speech yesterday in Las Vegas to law enforcement personnel. This Vegas speech gave special attention to immigration enforcement and "sanctuary cities," and here are excerpts from the start of the speech that help highlight how AG Sessions view a tough approach to law enforcement as central to everything that government seeks to achieve: 

Since the early 1990s, the crime rate has steadily come down across the country — that is, until two years ago. Now, violent crime is once again on the rise in many parts of America.  The murder rate, for example, has surged 10 percent nationwide in just one year — the largest increase since 1968.

These numbers are shocking, and they are informative, but the numbers are not what is most important. What’s most important are the people behind the numbers.  Each one of the victims of these crimes had a family, friends, and neighbors. They’re all suffering, too....

We cannot accept this status quo, and this Department of Justice will not accept it.  Every American has the right to be safe in their homes and in their neighborhoods.

The first and most important job of this government — and any government — is to protect the safety and the rights of its people.  If we fail at this task, then every other government initiative ceases to be important.

As law enforcement officials, we have the responsibility to stop — and reverse — the surge in violent crime and opioids that has taken place over the last two years.  And under President Trump’s leadership, this Department of Justice will answer the call and do its part.

To that end, I have directed our federal prosecutors to work closely with our law enforcement partners at the federal, state, local, and tribal levels to combat violent crime and take violent criminals off our streets.

As we all know, the vast majority of people just want to obey the law and live their lives.  A disproportionate amount of crime is committed by a small group of criminals.  And the more of them we apprehend, prosecute, and convict, the more crime we can deter.

Meanwhile, as AG Sessions has been this week expounding his vision for federal criminal enforcement, some commentators concerned about his vision have been explaining their concerns.  Here are two recent pieces with critical commentary on what AG Sessions is up to:

July 13, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

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)

"Punishment and the Burden of Proof"

The title of this post is the title of this new paper available via SSRN authored by Michael Louis Corrado. Here is the abstract:

Justifying state punishment presents a difficulty for those who deny that human actions are free in the sense required by moral responsibility.  The argument I make in this paper, following work done by Double, Vilhauer, and Sehon, is that those who believe that human beings do sometimes act freely face exactly the same difficulty, for no current account of freedom has the sort of evidentiary support that condemning a person to punishment requires; no current account could meet even the most minimal burden of proof.  Recourse to purely preventive methods, such as are proposed for a system of quarantine of dangerous individuals, seems undesirable because of the absence of limits under such a system, limits like the requirements of proportionality and guilt.  That same objection holds as well against proposals of non-retributive punishment: the adoption of a system of punishment, understood retributively or non-retributively, does not preclude the state even in theory from also adopting a system of preventive measures.

The answer that I suggest is a system of limited deprivations of freedom justified in much the way the doctrine of takings is justified, along with the specific exclusion of purely preventive methods for competent individuals.

July 11, 2017 in Purposes of Punishment and Sentencing | Permalink | Comments (1)

Monday, July 10, 2017

Drug Policy Alliance issues big new report calling for drug decriminalization

Download (2)This new press release reports on the latest call by the Drug Policy Alliance (DPA) for drug decriminalization in the US.  The DPA has this new report titled "It's Time for the U.S. to Decriminalize Drug Use and Possession," and the press release discusses its work with other organization to push this agenda forward.  Here is start and end of the DPA report's executive summary:

By any measure and every metric, the U.S. war on drugs — a constellation of laws and policies that seeks to prevent and control the use and sale of drugs primarily through punishment and coercion – has been a colossal failure with tragic results. Indeed, federal and state policies that are designed to be “tough” on people who use and sell drugs have helped over-fill our jails and prisons, permanently branded millions of people as “criminals”, and exacerbated drug-related death, disease and suffering — all while failing at their stated goal of reducing problematic drug use.

This report offers a roadmap for how to begin to unwind our failed drug war. It focuses on one practical step that can and should be taken to avoid many of the harms that flow from punitive prohibitionist drug laws and to promote proven, effective health-based interventions.

Drug decriminalization is a critical next step toward achieving a rational drug policy that puts science and public health before punishment and incarceration.  Decades of evidence has clearly demonstrated that decriminalization is a sensible path forward that would reap vast human and fiscal benefits, while protecting families and communities.

Drug decriminalization is defined here as the elimination of criminal penalties for drug use and possession, as well as the elimination of criminal penalties for the possession of equipment used for the purpose of introducing drugs into the human body, such as syringes.  Throughout this report, we will use the phrase “drug possession” to include drug possession, drug use, and possession of paraphernalia used for the purpose of introducing drugs into the human body.

Ideally, drug decriminalization entails the elimination of all punitive, abstinence-based, coercive approaches to drug use; however, for purposes of this report, the term encompasses a spectrum of efforts to eliminate criminal penalties, even if such efforts do not eliminate all forms of coercion entirely.  Drug decriminalization also ideally entails the removal of criminal penalties for low-level sales, given that the line between seller and user is often blurred (this subject and the broader issue of people who sell drugs will be addressed in a subsequent DPA report).

This report is the product of a comprehensive review of the public health and criminology literature, an analysis of drug policies in the U.S. and abroad, and input from experts in the fields of drug policy and criminal justice.  By highlighting the benefits of eliminating criminal penalties for drug use and possession, we seek to provide policymakers, community leaders and advocates with evidence-based options for a new approach....

This report makes the following recommendations for local, state and federal policymakers in the U.S.:

• Congress and U.S. states should eliminate federal and state criminal penalties and collateral sanctions for drug use, drug possession for personal use, and possession of paraphernalia intended for consuming drugs.

• Congress should amend federal law to de-schedule marijuana and remove it from the federal Controlled Substances Act.

• Administrative penalties – such as civil asset forfeiture, administrative detention, driver’s license suspension (absent impairment), excessive fines, and parental termination or child welfare interventions (absent harm to children) – run counter to the intent of a decriminalization policy and should not be imposed.

• Decriminalization policies — like other drug policies — generally function far more effectively when accompanied by robust and diverse harm reduction and treatment-on-demand programs, including medication-assisted treatment.

• Local and state governments should adopt pre-booking diversion and 911 Good Samaritan policies to prioritize public health over punishment and incarceration.

July 10, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

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)

Wednesday, July 05, 2017

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)

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)