Saturday, August 18, 2018

"Divided We Fall: Parole Supervision Conditions Prohibiting Inter-Offender Associations"

The title of this post is the title of this new article recently posted on SSRN and authored by James Binnall. Here is the abstract:

In the United States, almost all criminal offenders who serve a term of imprisonment are subject to a period of post-incarceration supervision.  Commonly known as parole, this form of supervision requires former inmates to comply with a variety of conditions.  A nationwide survey of standard parole conditions reveals that a vast majority of jurisdictions categorically restrict parolees’ associations with other parolees, convicted criminals, and/or convicted felons.  These blanket offender no-association conditions ostensibly presume that former offenders are irreparably flawed, homogenous, and that inter-offender relationships are uniformly criminogenic.

This article questions those presumptions, suggesting that offender no-association conditions endorse an untenable conceptualization of former offenders, a rejection of evidence-based parole practices, an uninformed view of inter-offender associations, and a superficial application of criminological theory.  This article further argues that by categorically prohibiting all inter-offender associations, offender no-association conditions foreclose strengths-based approaches to reentry and inhibit mechanisms that can foster criminal desistance. In this way, such conditions unnecessarily subvert the rehabilitative goal of parole, likely making them impermissibly overbroad in their current form.

August 18, 2018 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Thursday, August 16, 2018

"Tradeoffs Between Wrongful Convictions and Wrongful Acquittals: Understanding and Avoiding the Risks"

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

This article focuses on trade-offs that inhere in the criminal justice system, tradeoffs neatly encapsulated in Blackstone’s famous ten-to-one ratio of guilty persons who should be allowed escape justice rather than an innocent suffer. Blackstone’s aphorism reminds us not only of the importance of ensuring that innocent persons are not convicted, but also that unbounded protections might unduly interfere with convicting the guilty.

In my contribution to a symposium in honor of Professor Michael Risinger, I respond to thoughtful articles written by both Professors Laudan and Zalman and make two main points.  First, in Part I, I turn to Professor Laudan’s policy proposal for reducing the number of wrongful acquittals — e.g., lowering the prosecution’s burden of proof at trial for previously-convicted felons to clear and convincing evidence. This proposal is unconstitutional under existing Supreme Court precedents, which interpret the Constitution to require the prosecutor to prove a defendant’s guilty by proof beyond a reasonable doubt.  And in addition, Laudan has failed to demonstrate that his proposal is cost-beneficial because he has not persuasively articulated a way to weigh the costs of wrongful convictions against those of wrongful acquittals. But I offer a “friendly amendment” to Laudan’s idea. It should be possible to capture almost all of the benefits of his proposal by placing violent felons on extended periods of parole or supervised release — a condition of which would be that they not commit new crimes.  Then, when a previously-convicted felon is arrested for a new crime, he could be tried for a parole violation rather than given a new trial.  Supreme Court precedent allows parole violations to be tried under a lower burden of proof. Reconfigured in this way, there are strong reasons for thinking that the proposal might well be a cost-beneficial way of reducing wrongful acquittals.

In Part II, I challenge Professor Zalman’s claim that he is truly writing from an innocentric perspective.  Someone proceeding from this vantage should be willing to endorse a criminal justice reform measure if it meets three criteria: first and most important, it reduces wrongful convictions of the innocent; second, it does not reduce (and ideally would increase) the number of guilty persons convicted; and third, it should not significantly impair any other competing values.  With these evaluative criteria in mind, Zalman appears to be a mere fair-weather friend of the innocent, as he does not appear to truly privilege innocence over other competing values. In contrast, my reform proposals (which Zalman is reluctant to endorse) reorient the criminal justice system away from adjudicating procedural issues and toward adjudicating substantive issues of guilt or innocence.  The truly innocent will benefit in a system that values substance over procedure — and someone who truly holds an innocentric perspective should endorse reforms that move the criminal justice system in that direction.

August 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5)

Wednesday, August 01, 2018

"What Is Prison Abolition?"

The title of this post is the headline of this article in The Nation, which carries the subtitle "The movement that is trying to think beyond prisons as a tool to solve society’s problems." Here is an excerpt:

The prison-abolition movement is a loose collection of people and groups who, in many different ways, are calling for deep, structural reforms to how we handle and even think about crime in our country.  There are de facto figureheads (such as Angela Davis and Ruth Wilson Gilmore, the most famous contemporary abolitionists) and organizations (such as Critical Resistance, INCITE!, the Movement for Black Lives, the National Lawyers Guild, and Incarcerated Workers Organizing Committee — all of which, if not explicitly abolitionist, at least engage in abolitionist ethics), and there are converging or at least overlapping political ideologies (anarchist, socialist, libertarian), but there is no structured organizing group or coalition.  Masai Ehehosi, a co-founder of Critical Resistance and longtime member of the New Afrikan Independence Movement, pointed me to the overlap between organizations promoting civil rights and abolitionists: “We want freedom” can just as easily be applied to ending Jim Crow or the New Jim Crow, to unlocking iron shackles or swinging open prison doors.

The “movement” thus operates with affinity groups, with various organizations working in prisoner support, prisoner advocacy, political advocacy, or community education. “And when something big happens,” as Azzurra Crispino, prison labor activist and philosopher, explained to me, “we all show up as a coalition, and we don’t interfere” with each other’s work.

Abolitionists believe that incarceration, in any form, harms society more than it helps.  As Angela Davis argues, prisons are an obsolete institution because they exacerbate societal harms instead of fixing them.  “Are we willing to relegate ever larger numbers of people from racially oppressed communities to an isolated existence marked by authoritarian regimes, violence, disease, and technologies of seclusion that produce severe mental instability?” Davis has written.  Even if we were to greatly diminish the current prison population, even if we were to cut it in half but keep the prison complex intact, we would still be consigning millions of people to isolation and violenc e— and that’s a form of inhumanity that abolitionists can’t abide.  Moreover, Davis contends, mass imprisonment “reproduce[s] the very conditions that lead people to prison.”

August 1, 2018 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Tuesday, July 31, 2018

After guilty plea, frat member gets 3 months of house arrest and 27 months of probation for role in hazing death of Penn State pledge

As reported in this AP piece, headlined "Penn State fraternity member gets house arrest in pledge death case," a high-profile college campus tragedy led to a notable state sentencing today in the heart of Pennsylvania.  Here are the details:

A Penn State fraternity member who plied a pledge with vodka the night he was fatally injured in a series of falls avoided jail time Tuesday when a judge sentenced him to three months of house arrest.

Ryan Burke, who had pleaded guilty to four counts of hazing and five alcohol violations, apologized to the parents of Tim Piazza, who died in February 2017 after a night of drinking and hazing in the Beta Theta Pi house. Burke said he was “truly sorry” and accepted responsibility for his role in the events that led to Piazza's death from severe head and abdominal injuries he suffered the night he accepted a pledge bid.

Centre County Judge Brian Marshall also gave Burke 27 months of probation, fined him more than $3,000 and ordered 100 hours of community service. “The court was shocked by what happened that night,” Marshall said, adding he was “mindful that there were many involved.”

Burke's defense attorney, Philip Masorti, said afterward he thought the sentence was fair.  “This was an accident that nobody wanted to happen,” he told Marshall. “It led to a tragic death.”

Burke, 21, of Scranton, is the only one so far to plead guilty in the case, in which more than two dozen members of the now-closed fraternity face charges. A hearing for some others is planned for next month, and trial for at least some will be in February.

Prosecutor Brian Zarallo with the attorney general's office said Burke took a leading role in what occurred, as he led the fraternity's effort to recruit new members and physically led them into a drinking station “gauntlet” that began a night of heavy drinking that was captured on the building's elaborate video security system. Piazza “didn't know what was waiting for him,” that night, Zarallo said. “The defendant did. The defendant knew exactly what was waiting for him.”

He played a videotape in which a ball cap-wearing Burke could be identified plying the wannabe members with a bottle of 80-proof vodka, and said Burke seemed nonchalant about Piazza's medical condition after he endured a bad fall down the basement steps. Burke “can't be bothered” and left Piazza for others to deal with him, Zarallo said, describing his actions as callous.

“This is a big joke to these people,” Zarallo said, telling the judge that five pledges vomited that night and one other injured an ankle.

Piazza's parents, who have become anti-hazing advocates, recounted the horror of being summoned to the hospital to find their son with a range of visible and very severe injuries, not far from the death that would soon follow....  Jim Piazza credited Burke for pleading guilty, but noted that occurred after a judge ruled there was sufficient evidence to send the case to county court for trial....

When Burke was first charged in November, he also was accused of involuntary manslaughter, aggravated assault, simple assault and reckless endangerment, but the attorney general's office dropped the most serious charges in April and a district judge subsequently dismissed some other counts.

This other local article reports that prosecutors were asking for three months of imprisonment. I suspect that what prosecutors sought for a defendant who played a leading role, as well as the actual sentencing imposed, might have a big impact on the various charges still facing the other two dozen members of the fraternity.  It is likely that the sentence given to Burke will end up impacting future plea negotiations as well as any sentences that might be imposed on any defendants convicted after a trial.  In tragic incidents like this one in which is it so hard to know just what kind of sentence is "right" in response to unintended harms, I sense it becomes easier for lawyers and judges to gravitate toward sentences already imposed in related cases.

July 31, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

"Why Is It Wrong To Punish Thought?"

The title of this post is the title of this new article posted to SSRN authored by Gabriel Mendlow. Here is its abstract:

It’s a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts — for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery.  In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one.

The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn’t simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice to the person punished.  The proposed justification also shows how thought’s immunity from punishment relates to a principle of freedom of mind, a linkage often assumed but never explained. 

In explaining it here, I argue that thought’s penal immunity springs from the interaction of two principles of broad significance: one familiar but poorly understood, the other seemingly unnoticed.  The familiar principle is that persons possess a right of mental integrity, a right to be free from the direct and forcible manipulation of their minds.  The unnoticed principle, which I label the Enforceability Constraint, is that the state’s authority to punish transgressions of a given type extends no further than its authority to thwart or disrupt such transgressions using direct compulsive force.  Heretofore unexamined, the Enforceability Constraint is in fact a signal feature of our system of criminal administration, governing the scope and limits of the criminal law.

July 31, 2018 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

The American Conservative explores "What’s Philly’s DA Got to Do With Me?"

In prior posts here and here, I have highlighted an ongoing series of lengthy articles in The American Conservative that are part of "a collaborative series with the R Street Institute exploring conservative approaches to criminal justice reform."    This latest article zeroes in on a notable new figure under the full headline "What’s Philly’s DA Got to Do With Me?: If every city had a Larry Krasner, there might be fewer people in jail who didn't belong there." Here is how the article gets started:

Since taking office he’s stopped prosecuting simple possession of marijuana.  He’s limited civil asset forfeitures only to cases in which there’s a conviction.  He’s directed his assistant district attorneys to include the cost of a prison term in making sentencing recommendations.  Oh, and he’s published a list of 29 local police officers that he views as unreliable witnesses due to their abuse of their powers and other corruption.

For traditional law-and-order types, Philadelphia’s new district attorney, Larry Krasner, might be something of a nightmare.  But for civil libertarians and jail reformers across the political spectrum, he’s putting into practice policies that they’ve been pushing for a long time.

Krasner, who took office in January, styles himself a progressive, but his objectives dovetail closely with those of conservative and libertarian justice reformers.  All share a broader vision of radically reshaping a criminal justice system that is deeply unjust and out of line with American constitutional and moral values.

“I personally think our criminal justice system is thoroughly rotten and it has a number of features that, in my judgment, have so undermined the legitimacy of the criminal justice system and so sharply tilted the playing field in favor of prosecutors and against defendants that is has deprived our criminal justice system of its integrity and its legitimacy,” Clark Neily, the vice president for criminal justice at the Cato Institute, tells The American Conservative.

Prior related posts:

July 31, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Sunday, July 29, 2018

How should advocates for reduced prison populations respond to deadly actions by released violent offenders?

In response to recent posts about clemency here and about reducing prison populations here, commentator federalist has flagged two local stories of violent offenders released after relatively short periods of incarceration gong on to commit murder.  One story, out of Atlanta, and is discussed in this newspaper piece under the headlined "‘Visionary’ didn’t keep promises to help violent teenager."  Here is a snippet:

One day last August, Gwendolyn Sands stood before a Fulton County judge and promised to rehabilitate a teenage boy already well on his way to a life of violence.... Her organization, Visions Unlimited, would pair the boy with a “life coach” for “24/7 supervision,” Sands told the judge. Her staff would instruct the boy in life skills, career readiness and the perils of street gangs. They would hold “family support” meetings every month  — “and more often,” Sands said, “as necessary.”

Later, she would even agree to take the boy into her own home.  It seemed the only way to shelter him from the streets where he had stuck a pistol in a woman’s face and robbed her.

But Sands kept almost none of her promises to transform Jayden Myrick.  Now Myrick is charged with murder, accused of shooting 34-year-old Christian Broder during a robbery on July 8 outside Atlanta’s Capital City Club.  Broder, an Atlanta native who lived in Washington, D.C., died July 20.  He left behind a wife and an infant daughter.  And, at 17, Myrick faces life in prison — the very outcome the judge had hoped Sands would help prevent....

Fulton Superior Court Judge Doris Downs, who twice released Myrick into Sands’ custody, declined to comment.  Other court officials would not answer questions about why Downs or other judges trusted Visions Unlimited or whether they vetted Sands’ credentials.  In a statement, Chief Judge Robert McBurney deflected responsibility for monitoring the performance of such organizations.

Another story, out of San Francisco, is discussed in this CNN piece headlined "Officials still don't know why a white man allegedly stabbed a black woman to death in a subway station." Here is an excerpt:

Nia Wilson was standing on a Bay Area Rapid Transit station platform in Oakland, California, Sunday night when she was stabbed to death in an apparently unprovoked attack.

By Monday night, John Cowell, 27, had been arrested in connection to the stabbing, but days later, officials still haven't said what prompted the attack, which a police chief compared to a "prison yard assault."...

Cowell was convicted of second-degree robbery and assault with a deadly weapon in 2016, according to the criminal complaint.  He was paroled in May after being sentenced to two years in prison for second-degree robbery, according to California Department of Corrections and Rehabilitation....

Cowell's family released a statement extending its sympathy to Wilson's, and said Cowell had long been suffering from mental illness.  "He has been in & out of jail & has not had the proper treatment," the statement said.  He's been diagnosed with bipolar disorder and schizophrenia, the family said, and they had to get a restraining order at one point "for our own protection."  Cowell's been living on the streets since.

In one comment, federalist not unreasonably asks "How, Doug, do we prevent mistakes like Judge Downs'?".  I do not have a fully satisfying answer: judges are imperfect at gauging risk, and the only certain way to prevent any and all released offenders from ever committing any serious future crimes is to never release any of them in the first place.  I am drawn to using actuarial risk-assessments in our criminal justice system because such tools should help reduce mistakes in forecasts of future violent behavior, but there still will be mistakes (and violent consequences) even with the use of (inevitably imperfect) risk-assessment instruments. 

As an advocate of various modern criminal justice reforms, I am in this context eager to (a) lament that we do not have been juvenile and prison programming to better rehabilitate violent persons, and (b) note that modern mass incarceration is the result of many "mistakes" of over-incarceration.  But these statements provide cold comfort to anyone reasonably inclined to call the tragic deaths of Christian Broder and Nia Wilson entirely preventable if we had just "gotten tough" with Jayden Myrick and John Cowell.

Another move, of course, is to stress that modern sentencing reform efforts are or should be particularly focused on non-violent offenses and offenders.  But sensible folks arguing for dramatic reductions in our prison populations rightly say that violent offenders should not be excluded from efforts to reduce reliance on incarceration, and there is also recidivism data showing that some non-violent offenders will go on to commit subsequent violent offenses.

So, dear readers, is there a "good" answer to the question in the title of this post?

July 29, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (27)

Wednesday, July 25, 2018

"Procedural Justice and Risk-Assessment Algorithms"

The title of this post is the title of this article recently posted to SSRN and authored by A.J. Wang. Here is the abstract:

Statistical algorithms are increasingly used in the criminal justice system.  Much of the recent scholarship on the use of these algorithms have focused on their "fairness," typically defined as accuracy across groups like race or gender.  This project draws on the procedural justice literature to raise a separate concern: does the use of algorithms damage the perceived fairness and legitimacy of the criminal justice system?

Through three original survey experiments on a nationally-representative sample, it shows that the public strongly disfavors algorithms as a matter of fairness, policy, and legitimacy.  While respondents generally believe algorithms to be less accurate than either psychologists or statutory guidelines, accuracy alone does not explain their preferences. Creating "transparent" algorithms helps but is not enough to make algorithms desirable in their own right.  Both surprising and troubling, members of the public seem more willing to tolerate disparate outcomes when they stem from an algorithm than a psychologist.

July 25, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Monday, July 23, 2018

Spotlighting a remarkably thoughtful federal sentence in a remarkably challenging setting

Over at his blog Simple Justice, Scott H. Greenfield has this terrific new post spotlighting a terrific new sentencing opinion by US District Judge John Kane in US v. Jumaev, No. 12-cr-00033-JLK (D. Col. July 18, 2018) (available here). Because Scott's posting provide effective context and commentary concerning the case and sentencing, I will here just quote the first two paragraphs of Judge Kane's 44-page sentencing decision to clarify the core concern of the opinion:

After his co-defendant Jamshid Muhtorov informed him that the Islamic Jihad Union (IJU) was in need of financial support, Defendant Bakhtiyor Jumaev mailed Mr. Muhtorov $300. Mr. Jumaev wrote only a single check, and the funds never reached the IJU or any other foreign terrorist organization.  Mr. Jumaev had no specific plot or plan and did not intend to further any via his contribution. The idea to aid the terrorist organization was proposed and facilitated entirely by Mr. Muhtorov.  Indeed, Mr. Jumaev had no direct contact with the members of any terrorist organization.  And, significantly, he never committed any act of violence, nor did he advocate for any particular violent act.

Mr. Jumaev now comes before me for sentencing after having been found guilty by a jury of two counts in violation of 18 U.S.C. § 2339B, namely (1) conspiring and (2) attempting to provide material support in the form of $300 to the IJU, a designated foreign terrorist organization.  Although his actions certainly are sufficient for the jury to have found him guilty of these two very serious crimes, the above summary illustrates how his guilt rests on far less culpable conduct than that of all other defendants of which I have been made aware who have been convicted under the same statute.

At the risk of turning this matter into a parlor game, I wonder if readers might be inclined to share, before clicking through to the opinion, their predictions as to (a) the defendant's calculated guideline range, (b) the sentence was urged by federal prosecutors, and/or (c) the sentence imposed by Judge Kane.  Alternatively, I would also love to hear folks' opinions on just what kind of federal sentence someone should get for simply sending, upon request, a $300 check to support the Islamic Jihad Union.

July 23, 2018 in Booker in district courts, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Sunday, July 22, 2018

"Can a criminal be sentenced to run a 'help desk'?"

The question in the title of this post is the first line of this New York Times article about a high-profile upcoming federal (re)sentencing.  The piece is headlined "What Sentence Should Sheldon Silver Get? His Lawyers Get Creative," and here are excerpts:

Sheldon Silver, the former powerful speaker of the New York State Assembly who was convicted of public corruption charges in May, hopes [he can be sentenced to help-desk duty].

Mr. Silver, 74, is to be sentenced on July 27 in Manhattan, and federal prosecutors asked the judge on Friday to impose a sentence “substantially in excess” of 10 years. But Mr. Silver’s lawyers had a more creative proposal for how he could pay his debt to society.

After a “meaningful custodial sentence,” they suggested, he should be ordered to perform “rigorous” community service, like running a special help desk. In that role, they said, he would be helping New Yorkers “navigate their way through the state bureaucracy to answer their questions, and maximize their chances of receiving benefits to which they may be entitled.” He would be expressing his remorse, they said, and using “his unique skills to assist his fellow New Yorkers.”...

Evidence at the trial showed Mr. Silver obtained nearly $4 million in illicit payments in exchange for taking actions that helped a prominent cancer researcher at Columbia University and two real estate developers.... Mr. Silver, a Democrat, was originally convicted in 2015 and sentenced to 12 years by the judge, Valerie E. Caproni of Federal District Court. After his conviction was overturned on appeal, he was retried this year and found guilty.

“Mr. Silver is a broken man,” his lawyers wrote. “He has been humiliated and disgraced. Most of his assets are gone, either to forfeiture or fine.” But he “is also an intelligent man, with virtually unparalleled knowledge of New York State government,” they noted. Their proposal would allow the judge to exercise discretion “in a way that punishes Mr. Silver, but takes advantage of his unique talents and still affords the possibility of his living the end of his life in freedom.”

To provide a direct answer to the question in the title of this post, I would look to 18 U.S.C. § 3563(b)(12) which states that the court may provide that the defendant work "in community service as directed by the court” as a condition of supervised release. In other words, I think a federal defendant can be sentenced by a federal judge to run a help desk as a form of community service during a period of supervised release. Whether a federal judge will be inclined to do so for Sheldon Silver is another question.

Prior related posts prior to Sheldon Silver's initial sentencing:

July 22, 2018 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, July 18, 2018

"The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges"

The title of this post is the title of this article authored by Robert Conrad, Jr. and Katy Clements published earlier this year that I just came across and that is especially timely in light of the recent NACDL report on the "trial penalty" (discussed here). Here is its abstract:

Federal criminal jury trials are dying.  Surely, but not slowly. Within the ten-year span from 2006 to 2016, the absolute number of cases disposed of by jury trial declined by forty-seven percent.  During the same ten-year span, the portion of defendants’ cases disposed of by jury trial similarly declined by almost forty percent.  Go to the movies, turn on the television, or open a book, and the vanishing trial is not the portrayal of the American criminal justice system you will see.  The media depicts a thriving criminal adjudicatory system full of dramatic human interactions, complex fact patterns, and cathartic resolutions rendered at the hand of the twelve-person, hallowed pillar of American democracy: the jury.

This Article debunks that fiction. The criminal jury trial decline has been occurring since the 1980s.  Yet the primary factors scholars have attributed as responsible for igniting the trial decline no longer predominate.  Prior scholarship has blamed mandatory minimum penalties and mandatory Federal Sentencing Guidelines as the principal agents of the trial decline.  This Article examines the vanishing trial phenomenon in the post-mandatory Guidelines era and discovers startling results.  Despite the Supreme Court making the Guidelines advisory in United States v. Booker in 2005 and a prosecutorial push during the Obama Administration to circumvent charging mandatory minimum penalties, trial numbers continue to rapidly decline.

By tracing trial statistics in the twenty-first century, this Article identifies new factors, largely unexamined in the vanishing trial literature, that have arguably driven trial numbers to even lower levels.  Specifically, the authors contend that Booker, changes in Department of Justice policies, and other extrinsic factors outside the criminal justice system have further marginalized the existence of trials and juries.  The authors lament that the sentencing hearing has replaced the trial as the paramount proceeding in most criminal cases and explore the consequences of plea agreements supplanting the public square openness of trials.  By doing so, the authors hope to embolden the players in the criminal justice system to not go gentle into a trial-less system, but rather, to rage against the dying of the trial light.

July 18, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

Monday, July 16, 2018

Big Massachusetts Supreme Judicial Court upholds "drug free" condition of probation

The Massachusetts Supreme Judicial Court handed down this morning a decision in the closely-watched case of Massachusetts v. Eldred, No. SJC--12279 (Mass. July 16, 2018) (available here). The opinion starts this way:

Following a probation violation hearing, a judge in the District Court found that the defendant, Julie A. Eldred, had tested positive for fentanyl, in violation of a condition of her probation requiring her to abstain from using illegal drugs. The judge ordered that the conditions of her probation be modified to require her to submit to inpatient treatment for drug addiction. The defendant appeals from that finding and disposition.  The judge also reported a question drafted by the defendant concerning whether the imposition of a "drug free" condition of probation, such as appeared in the original terms of defendant's probation, is permissible for an individual who is addicted to drugs and whether that person can be subject to probation violation proceedings for subsequently testing positive for illegal drugs.

We conclude that, in appropriate circumstances, a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation, and that a defendant may be found to be in violation of his or her probation by subsequently testing positive for an illegal drug. Accordingly, we affirm the finding that the defendant violated her probation and the order requiring her to submit to inpatient treatment for her addiction.

July 16, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Sunday, July 15, 2018

"Incarceration, Recidivism, and Employment"

The title of this post is the title of this paper recently posted to SSRN authored by a group of economists. Here is its abstract:

Understanding whether, and in what situations, time spent in prison is criminogenic or preventive has proven challenging due to data availability and correlated unobservables. This paper overcomes these challenges in the context of Norway’s criminal justice system, offering new insights into how incarceration affects subsequent crime and employment. We construct a panel dataset containing the criminal behavior and labor market outcomes of the entire population, and exploit the random assignment of criminal cases to judges who differ ystematically in their stringency in sentencing defendants to prison. Using judge stringency as an instrumental variable, we find that imprisonment discourages further criminal behavior, and that the reduction extends beyond incapacitation.

Incarceration decreases the probability an individual will reoffend within 5 years by 29 percentage points, and reduces the number of offenses over this same period by 11 criminal charges. In comparison, OLS shows positive associations between incarceration and subsequent criminal behavior. This Sharp contrast suggests the high rates of recidivism among ex-convicts is due to selection, and not a consequence of the experience of being in prison. Exploring factors that may explain the preventive effect of incarceration, we find the decline in crime is driven by individuals who were not working prior to incarceration. Among these individuals, imprisonment increases participation in programs directed at improving employability and reducing recidivism, and ultimately, raises employment and earnings while discouraging further criminal behavior. For previously employed individuals, while there is no effect on recidivism, there is a lasting negative effect on employment. Contrary to the widely embraced ‘nothing works’ doctrine, these findings demonstrate that time spent in prison with a focus on rehabilitation can indeed be preventive for a large segment of the criminal population.

July 15, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5)

Friday, July 06, 2018

The American Conservative explains "Where the Right Went Wrong on Criminal Justice"

JulyAugustArthur Rizer and Lars Trautman from the R Street Institute have this remarkable new commentary in The American Conservative under the full headline "Where the Right Went Wrong on Criminal Justice: Ending our 'incarceration nation' would help return conservatives to their roots, acting on principles most of them already hold."  Long-time readers are surely aware of my long-enduring contention that a lot of conservative ideology and rhetoric would seem to push toward advocacy for sentencing and other criminal justice reforms, and thus I really enjoyed this full lengthy piece (which, according the editors, is "the first in a collaborative series with the R Street Institute exploring conservative approaches to criminal justice reform). I recommend the piece in full, and here is just a small snippet:

When it comes to criminal justice, the Republicans have for decades declared themselves to be the party of “law and order.” This commitment to “tough on crime” policies helped it win elections in the latter half of the 20th century, but at the cost of a society in which a third of working-age Americans have criminal records and more than 10 million people go to jail each year. The fact that the United States, with nearly 2.2 million Americans behind bars, incarcerates more of its citizens than any other nation is not a point of pride. This shameful position is put in even starker relief when one considers that the nations with the second and third highest number of incarcerated individuals are China and Russia, respectively.

These realities, products of the “lock ’em up and throw away the key” sensibility of yesteryear, have tarnished the image of Republicans and conservatives in the minds of many. Though Republicans have greatly increased their political power in recent elections, they have nevertheless alienated many of the fastest growing segments of the electorate, casting a pall across the impressive electoral successes of the past decade.

The extension of conservative principles to criminal justice policies offers a chance to court new constituencies and bring conservative messages to voting blocs that will dominate American politics in the future, all without risking the current base of conservative support. Already, right-leaning organizations, armed with polling data that show significant backing from many conservatives, are mobilizing on criminal justice issues. It’s time to leverage these efforts to rebuild the conservative identity. Perhaps no other policy area holds more potential than criminal justice reform....

The inherent dignity of every human life is another tenet of the Republican Party that lives on in the conservative movement today.  However, it is also an issue that permeates too few aspects of the criminal justice system.  From abhorrent prison conditions to the stigmatization of the formerly incarcerated to the negative public safety implications of ill-conceived criminal justice policies, there is no shortage of ways in which the justice system cheapens life.  Efforts to alleviate these various forms of suffering and protect our communities offer conservatives another path to better defend the intrinsic worth of every human life.

Given the Christian Right’s prominence within modern conservatism, it seems prudent to at least consider how current criminal justice policies compare to Christian values. While conservatives certainly do not hold dominion over Christian values, Christians represent a substantial portion of the conservative base.  Further, Christian interest groups hold special power within the conservative movement, with many, particularly on the Left, being wary of how this influence might be used.

Maybe the most obvious lesson is from Christ himself — a criminal in the eyes of the state, subject to a miscarriage of justice by an imperfect criminal justice system. Beyond the despicable treatment of Christ, however, are the lessons he gave on how those accused and those guilty of crimes should be treated.  He recognized the “legality” of stoning an adulteress but nonetheless shamed the crowd by asking for the one who had not sinned to “cast the first stone.”  This is an important lesson for conservatives—that the legality of punishment should not be the end of the inquiry of what is just.

While the Bible certainly has examples of harsh punishments, it’s important to note that throughout his life Christ spoke persistently and passionately about reconciliation over retribution.  He famously told his followers: “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, do not resist one who is evil.  But if anyone strikes you on the right cheek, turn to him the other also.”

Criminal justice reform offers conservatives an opportunity to secure a more favorable image by returning to their roots and acting in concert with principles that most of them already hold.

The examination of principles and morality helps to answer “why” criminal justice reform nestles into a renewed conservative identity, but this does little to detail how such reforms will sustain this identity and propel it forward.  For these answers, it’s necessary to look at the problems that afflict each stage of the criminal justice cycle and how conservatives can reap political rewards from remedial action.  With the preamble of the Republican Party platform touting “limited government” and the “rights of the people” as bedrock principles, there is perhaps no better place to begin than pretrial jail reform.  Of the roughly 615,000 individuals held in our local jails at this very moment, around 465,000 are awaiting trial and have yet to be convicted of whatever crime has been alleged.  Too often, these incarcerated individuals are not the most dangerous, but the poorest—those unable to afford bond. Further, the incarcerated are hardly the only ones to suffer from this loss of freedom.  Even a short stay in jail raises the risk of criminal behavior after an individual’s release, meaning that unnecessary jailing is a public safety matter of concern to all.  We also pay dearly when we lock up so many of our fellow Americans, with the price tag of a single day in jail as high as $571.27 in some jurisdictions.

July 6, 2018 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (10)

Tuesday, July 03, 2018

Two interesting takes on the Catholic faith and criminal justice by two persons newly prominently in political discourse

Images (13)Long-time readers know I have long been interested in this various connections between various religious faiths and various criminal justice issues.  Thus, I found quite interesting this recent commentary by the newest "star" in Democratic political circles, Alexandria Ocasio-Cortez.  (As most readers likely know, Ocasio-Cortez defeated in a recent primary a senior congressional representative and is now the Democratic nominee in New York's 14th congressional district.) This commentary is in thee Jesuit publication America, and the piece is headlined "Alexandria Ocasio-Cortez on her Catholic faith and the urgency of a criminal justice reform," here is how it ends:

Discussions of reforming our criminal justice system demand us to ask philosophical and moral questions. What should be the ultimate goal of sentencing and incarceration?  Is it punishment?  Rehabilitation?  Forgiveness? 

For Catholics, these questions tie directly to the heart of our faith.

Solutions are already beginning to take shape, which include unraveling the War on Drugs, reconsidering mandatory minimum sentencing and embracing a growing private prison abolition movement that urges us to reconsider the levels at which the United States pursues mass incarceration.  No matter where these proposals take us, we should pursue such conversations with an openness to change and an aim to rehabilitate our brothers and sisters wherever possible and wherever necessary.

By nature, a society that forgives and rehabilitates its people is a society that forgives and transforms itself.  That takes a radical kind of love, a secret of which is given in the Lord’s Prayer: Forgive us our trespasses, as we forgive those who trespass against us.

And let us not forget the guiding principle of “the least among us” found in Matthew: that we are compelled to care for the hungry, thirsty, homeless, naked, sick and, yes — the imprisoned.

As I was thinking about posting this Ocasio-Cortez commentary on the intersection of Catholic faith and criminal justice, a helpful reader reminded me that another newly prominent person in political (and legal) circles has spoken interestingly about these intersections.  Specifically, SCOTUS short-lister Judge Amy Coney Barrett co-wrote an interesting article back in 1998, titled Catholic Judges in Capital Cases, which explores whether and how Catholic judges can and should be involved in enforcing the death penalty as members of the judiciary.  That article runs 48 pages and has so much nuance that it merits a full read by all.  But its essentials can be reasonably captured with quotes from  part of the introduction and the full conclusion:

Amy-barrett-faith-attack[W]e believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death. Whether they may affirm lower court orders of either kind is a question we have the most difficulty in resolving. There are parts of capital cases in which we think orthodox Catholic judges may participate - these include trial on the issue of guilt and collateral review of capital convictions. The moral impossibility of enforcing capital punishment in the first two or three cases (sentencing, enforcing jury recommendations, affirming) is a sufficient reason for recusal under federal law. But mere identification of a judge as Catholic is not a sufficient reason. Indeed, it is constitutionally insufficient....

Catholic judges must answer some complex moral and legal questions in deciding whether to sit in death penalty cases. Sometimes (as with direct appeals of death sentences) the right answers are not obvious. But in a system that effectively leaves the decision up to the judge, these are questions that responsible Catholics must consider seriously. Judges cannot-nor should they try to-align our legal system with the Church's moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church's standard. Perhaps their good example will have some effect.

July 3, 2018 in Purposes of Punishment and Sentencing, Religion, Who Sentences | Permalink | Comments (9)

"Study after study shows ex-prisoners would be better off without intense supervision"

The title of this post is the title of this notable new Brookings commentary authored by Jennifer Doleac.  I recommend the piece in full, and here is how it starts and concludes:

Two-thirds of those released from prison are re-arrested within three years.  This incarceration cycle hurts families and communities — and also costs a lot of money. Governments and nonprofits have tried many programs to reduce recidivism, but most are not successful.  In a recent review of the literature on prisoner reentry, I summarized the best evidence on how to improve the lives of the formerly incarcerated.  One of the most striking findings was that reducing the intensity of community supervision for those on probation or parole is a highly cost-effective strategy.  Several studies of excellent quality and using a variety of interventions and methods all found that we could maintain public safety and possibly even improve it with less supervision — that is, fewer rules about how individuals must spend their time and less enforcement of those rules.  Less supervision is less expensive, so we could achieve the same or better outcomes for less money.

For instance, Hennigan, et al. (2010), measured the effects of intensive supervision using a randomized controlled trial (RCT) in Los Angeles.  Juveniles sentenced to probation were randomly assigned to intensive supervision—in the form of a community-based after-school program—or standard probation.  Five years later, there were no significant differences in outcomes between the treatment and control groups, with one exception: Low-risk boys (ages 15 or younger) who were randomized to intensive supervision were worse off. Intensive supervision for that group led to more incarceration and a higher likelihood of continued criminal justice involvement in the years ahead.  That is, intensive supervision increased criminal activity by this group, without reducing criminal activity by other groups.

Barnes, et al. (2012) used an RCT to study supervision levels in Philadelphia.  Low-risk probationers were randomized to probation as usual or low-intensity supervision by parole officers with high caseloads (which forced them to pay less attention to each individual case).  Less supervision means probationers may be less likely to get caught for technical violations, such as using drugs or breaking curfew.  But these requirements of probation are a means to an end: what really matters for public safety is the number of new offenses committed.  Eighteen months after randomization, there were no significant differences between the treatment and control groups in the likelihood of being charged for a new offense.  In other words, low-intensity supervision did not result in more recidivism....

These studies show that current efforts to reduce recidivism through intensive supervision are not working.  Why is intensive supervision so ineffective?  Requiring lots of meetings, drug tests, and so on can complicate a client’s life, making it more difficult to get to work or school or care for family members (meetings are often scheduled at inconvenient times and may be far away).  A heavy tether to the criminal justice system can also make it difficult for individuals to move on, psychologically.  Knowing that society still considers you a criminal may make it harder to move past that phase of your life.  These difficulties may negate the valuable support that probation and parole officers can provide by connecting clients to services and stepping in to help at the first sign of trouble.

It is unclear what the optimal level of supervision is for those on parole or probation, but these studies demonstrate that current supervision levels are too high.  We could reduce the requirements of community supervision — for low-risk and high-risk offenders alike — and spend those taxpayer dollars on more valuable services, such as substance abuse treatment or cognitive behavioral therapy.  This would be a good first step toward breaking the vicious incarceration cycle.

July 3, 2018 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Monday, July 02, 2018

"The Institutional Design of Punishment"

The title of this post is the title of this notable new paper authored by Aaron Rappaport now available via SSRN. Here is its abstract:

For the past 40 years, policymakers have engaged in a debate over which institution should wield the principal power over punishment.  Should courts and parole boards have the dominant role at sentencing, or should that power be left to legislatures and sentencing commissions?  These debates are typically couched in policy terms, yet they also raise deeply philosophical questions, most notably: What is the morally justified sentencing system?

Perhaps surprisingly, criminal theorists have almost uniformly ignored this normative question, and that neglect has degraded the quality of the on-going institutional debates.  This paper seeks to address that shortcoming by exploring the moral ramifications of design choices in the sentencing field.  In particular, the paper identifies the institutional structure best suited for promoting utilitarianism, a widely-accepted moral theory of punishment.

Drawing insights from cognitive science and institutional analysis, the paper concludes that a properly structured sentencing commission is the institution best able to satisfy the moral theory’s demands.  Beyond this policy prescription, the paper has a broader goal:To start a conversation about the link between moral theory and institutional design, and to encourage policymakers to explore more fully the premises of their own institutional choices in the criminal justice field.

July 2, 2018 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (3)

Notable Sixth Circuit panel reverses as procedurally unreasonable big upward variance in cocaine sentence based on opioid overdoses

On Friday, the Sixth Circuit handed down a notable new sentencing opinion in US v. Fleming, No. 17-3954 (6th Cir. June 29, 2018) (available here). The start of the opinion reviews its essentials:

Marcus Fleming was convicted of a cocaine offense, and the United States Sentencing Guidelines provided for a recommended sentence of 60 months’ imprisonment.  At his sentencing hearing, the district court doubled that.  It did so based in large part on a brief local news article that described a recent surge in drug overdose deaths, mostly due to powerful opioids like fentanyl.  Neither this article, nor the underlying Ohio state report on which it was based, was provided to the parties before the start of the sentencing hearing.  Nor was Fleming notified before the hearing that the district court planned to consider the article or the issues it addressed.  Because this procedure denied Fleming a meaningful opportunity to comment on information that led to a substantial increase in his sentence, the resulting sentence was procedurally unreasonable.

Here is small part of the Sixth Circuit panel's analysis:

Here, the district court’s reliance on information about mixed cocaine-opioid overdose deaths in the Cleveland.com article was a surprise, and that surprise was prejudicial to Fleming’s sentencing presentation. Therefore, Fleming’s sentence was rendered in a procedurally unreasonable manner.

The district court’s consideration of information about mixed cocaine-opioid overdose deaths was a surprise because, before the sentencing hearing, there was no indication that opioids were relevant to this case, let alone that they would play a prominent role. Fleming was convicted for possession of cocaine, not opioids.  Nothing in the record suggested that opioids were found in Fleming’s car, or that Fleming had ever sold or possessed opioids, or even that any cocaine Fleming sold had ever been mixed with opioids. Of course, opioids have been a topic of grave public concern in recent years, as their devastating and tragic effects have been felt across the country. But it was far from apparent that they were relevant to Fleming’s sentence for possession of cocaine.

This ruling strikes me as notable or at least two reasons beyond its substantive particulars: (1) one of jurists on Prez Trump's SCOTUS short list, Judge Raymond Kethledge, was one of the judges on this Fleming panel, and (2) this Cleveland.com report highlights that the erroneous sentencing judge has a history of unreasonably long sentences:

An Akron federal judge who has been criticized by a federal appeals court had a sentence reversed again on Friday -- this time because of his reliance on a cleveland.com article....

Adams has been removed from cases a few times in recent years and has been the target of criticism by the 6th Circuit.  Most recently, the appeals court removed him from a case involving two men arrested in Cleveland with more than 200 pounds of cocaine. Both prosecutors and defense attorneys in the case agreed to recommend prison sentences of about three years, but Adams gave them both 10 years and did not give any good reasons for the higher sentences, the 6th Circuit ruled.

July 2, 2018 in Booker in district courts, Booker in the Circuits, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, June 30, 2018

"Originalism and the Common Law Infancy Defense"

The title of this post is the title of this new article by Craig Lerner now available via SSRN.  Though I consider any article about the Eighth Amendment to be timely, this one seems even more so with the recent retirement announcement of Justice Anthony Kennedy, who was often a "swing" SCOTUS voter in Eighth Amendment cases.  Here is this article's abstract:

Justice Thomas and the late Justice Scalia consistently argued that the original meaning of the Eighth Amendment was to foreclose only those modes or acts of punishment that were considered cruel and unusual at the time the Bill of Rights was adopted.  With respect to juvenile criminal responsibility, this would mean that the Constitution contemplated an infancy defense no broader than what existed in 1791.  Yet the common law infancy defense, as sketched by originalist judges, seems barbaric.  It treated all fourteen-year-olds as adults, and it permitted the imposition of punishment — even capital punishment — on offenders as young as seven.

This Article argues that the common law infancy defense was more nuanced than modern observers often recognize.  With respect to misdemeanors, the defense was more broadly applicable than is typical today.  Even with respect to felonies, offenders under the age of fourteen could be found liable only after an individualized inquiry as to their capacity to distinguish right from wrong.  The eighteenth-century culture and common law had higher expectations of juvenile abilities than prevail today; and not surprisingly, young people proved more mature than modern adolescents, who are told repeatedly that they are frail and vulnerable.

This Article speculates on how the original meaning of the Eighth Amendment, assuming it incorporates the common law approach to juvenile responsibility, might be applied to modern conditions, given the diminished maturity of young people.  However, the Article questions whether young people today are as immature as advertised; indeed, the study of the common law infancy defense could prompt a reconsideration of contemporary attitudes about the capacities of young people.

June 30, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Friday, June 29, 2018

Two new documents from Center for American Progress on "Ending the War on Drugs"

Download (17)The Center for American Progress released this week two notable new short papers, titled "Ending the War on Drugs" and "Ending the War on Drugs: By the Numbers."  Here are links to both documents and their introductions:

"Ending the War on Drugs":

Nationwide, communities face an unprecedented rise in substance misuse fatalities. A record 63,600 overdose deaths were recorded in 2016, two-thirds of which involved opioids.  To stem the tide of this crisis, some communities are doubling down on the war on drugs, despite clear evidence that increasing arrests and incarceration does not lower drug use.  But an increasing number of cities are bucking the trend and adopting models that treat substance misuse as a disease, not a crime.  Instead of criminalizing substance use disorders, communities are focusing on saving lives and reducing the harmful effects of drug use.

The idea of “harm reduction” may seem like common sense today, but it signifies a radical departure from traditional U.S. responses to drug use, which relied heavily on the criminal justice system.  More and more cities are expanding access to clean syringes, launching safe-injection facilities, and decriminalizing possession of controlled substances. Public acceptance of these approaches was unthinkable just a few years ago.  Today, however, they are filtering into the mainstream.  In fact, support for harm reduction spans the ideological spectrum.  These strategies are underway in red and blue states alike, representing promising steps toward dismantling the country’s failed drug policy agenda.

"Ending the War on Drugs: By the Numbers"

President Richard Nixon called for a war on drugs in 1971, setting in motion a tough-on-crime policy agenda that continues to produce disastrous results today.  Policymakers at all levels of government passed harsher sentencing laws and increased enforcement actions, especially for low-level drug offenses.  The consequences of these actions are magnified for communities of color, which are disproportionately targeted for enforcement and face discriminatory practices across the justice system. Today, researchers and policymakers alike agree that the war on drugs is a failure.  This fact sheet summarizes research findings that capture the need to replace the war on drugs with a fairer, more effective model that treats substance misuse as a public health issue — not a criminal justice issue.

June 29, 2018 in Data on sentencing, Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, June 27, 2018

Recommending FAMM's great new report "Everywhere and Nowhere: Compassionate Release in the States"

FammFamilies Against Mandatory Minimums (FAMM) now has at this link its big new report on compassionate release programs authored by Mary Price under the title "Everywhere and Nowhere: Compassionate Release in the States."  Here is how the report and related resources are introduced:

“Everywhere and Nowhere: Compassionate Release in the States,” is a comprehensive, state-by-state report on the early-release programs available to prisoners struggling with certain extraordinary circumstances, such as a terminal or age-related illness.

The report takes a deep dive into the regulations and requirements of these programs in each state, including the varying categories of release, eligibility criteria, and reporting. The analysis also reveals a troubling number of barriers faced by prisoners and their families when applying for early release.

The report is accompanied by a comparison chart, 21 recommendations for policymakers, and 51 individual state memos.

Here are more links to the resources from this report:

And here is an excerpt from the Executive Summary:

We were gratified to learn that 49 states and the District of Columbia provide some means for prisoners to secure compassionate release.  But we were dismayed to discover that very few prisoners actually receive compassionate release.

This report summarizes our findings. It describes the barriers and the best practices we uncovered and illustrates them with selected examples drawn directly from our research on individual states. Above all, we found that every state could improve compassionate release. Accordingly, this report closes with a set of recommendations for policymakers interested in bringing their state programs in line with best practices.

June 27, 2018 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, June 26, 2018

So how was it decided Reality Winner should get 63 months for leaking classified information? Does it seem about right?

The questions in the title of this post are prompted by this news out of the federal criminal justice system via the New York Times: "Reality L. Winner, a former Air Force linguist who was the first person prosecuted by the Trump administration on charges of leaking classified information, pleaded guilty on Tuesday as part of an agreement with prosecutors that calls for a sentence of 63 months in prison." Here is more of the particulars and some context:

Ms. Winner, who entered her plea in Federal District Court in Augusta, Ga., was arrested last June and accused of sharing a classified report about Russian interference in the 2016 election with the news media. Ms. Winner, who is now 26, has been jailed since her arrest and wore an orange prison jumpsuit and white sneakers to the hearing. Her decision to plead guilty to one felony count allows the government both to avoid a complex trial that had been scheduled for October and to notch a victory in the Trump administration’s aggressive pursuit of leakers.

“All of my actions I did willfully, meaning I did so of my own free will,” Ms. Winner told Chief Judge J. Randal Hall on Tuesday. Throughout the hearing, Ms. Winner kept her hands behind her back while she answered questions about whether she understood the terms of the plea deal.

Ms. Winner, who was honorably discharged from the Air Force in 2016, was working as a contractor for the National Security Agency when she obtained a copy of a report that described hacks by a Russian intelligence service against local election officials and a company that sold software related to voter registration. The Intercept, an online news outlet that a prosecutor said Ms. Winner admired, published a copy of the top secret report shortly before Ms. Winner’s arrest was made public. The report described two cyberattacks by Russia’s military intelligence unit, the G.R.U. — one in August against a company that sells voter registration-related software and another, a few days before the election, against 122 local election officials.

At a detention hearing last year, the prosecutor, Jennifer G. Solari, said that Ms. Winner had been “mad about some things she had seen in the media, and she wanted to set the facts right.”...

Once rare, leak cases have become much more common in the 21st century, in part because of such electronic trails. Depending on how they are counted, the Obama administration brought nine or 10 leak-related prosecutions — about twice as many as were brought under all previous presidencies combined.

The Justice Department prosecuted Ms. Winner under the Espionage Act, a World War I-era law that criminalizes the unauthorized disclosure of national-security secrets that could be used to harm the United States or aid a foreign adversary. Ms. Winner’s prosecution galvanized transparency advocates, who mounted a publicity campaign in her support that even included a billboard in Augusta, the east Georgia city where Ms. Winner lived at the time of her arrest. They were particularly infuriated by a judge’s ruling that she be held until her trial....

Ms. Winner is the second person known to have reached a plea agreement with the Trump administration to resolve a leak prosecution. A former F.B.I. agent, Terry J. Albury, pleaded guilty in April, but prosecutors in that case have signaled that they will ask that he serve 46 to 57 months in prison.

The Justice Department has brought at least two other leak-related cases under the Trump administration.  Earlier this month, James Wolfe, a former Senate Intelligence Committee staffer, was arrested and charged with lying to the F.B.I. about his contacts with reporters, including a Times reporter with whom he had a personal relationship and whose phone records the department secretly seized, during a leak investigation; Mr. Wolfe has not been charged with leaking classified information, however.  He has pleaded not guilty.  Also this month, Joshua A. Schulte, a former C.I.A. software engineer, with charged with violating the Espionage Act and other laws based on accusations that he sent a stolen archive of documents and electronic tools related to the agency’s hacking operations to WikiLkeas, which dubbed them the Vault 7 leak. Mr. Schulte had already been facing child pornography charges.

A judge must still decide whether to approve her sentence after reviewing a report that prosecutors will present.  But prosecutors’ recommendation of more than five years in prison — followed by three years of supervised release — was unusually harsh for a leak case.  For most of American history, people accused of leaking to the news media were not prosecuted at all.  In the flurry of cases that have arisen during the 21st century, most convicted defendants were sentenced to one to three-and-a-half years.

One — Chelsea Manning, who was convicted at a military court-martial for sending large archives of military and diplomatic documents to WikiLeaks — was sentenced to 35 years in prison, but served only about seven years because President Barack Obama commuted the remainder of her sentence.

As this article suggests, there is not a lot of history of sentences for these kinds of leaks, and arguably the Chelsea Manning case sets a notable benchmark for how high a sentence might go for this kind of illegal leaking. But there are lots of ways to distinguish Manning and Winner, and Winner still seems to be getting a sentence considerably more severe than most modern leakers. That said, if one believes that deterrence considerations are especially important and perhaps effective in this setting, perhaps it is particularly justifiable for federal prosecutors to try to throw the book at the few high-profile leakers who get convicted.

Notably, as this article notes, a federal judge has to decide whether to accept this particular plea deal with its built-in sentence of 63 months.  Comments are welcome concerning whether the judge out to have some pause about doing so.

June 26, 2018 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3)

"For Justice and Decarceration, Enact Second-Look Sentencing"

The title of this post is the headline of this new commentary authored by Steven Zeidman in the Gotham Gazette. Here are excerpts:

Regardless what one thinks of presidential pardons, we should reflect upon a simple truth — convictions and sentences meted out at one point might not be appropriate decades later.  That is especially true for many people currently serving life or massive prison sentences.

Many have argued for sentence commutations for specific classifications of people. In recent years, the Supreme Court has recognized that judges sentencing young people, even for violent crimes, must consider lack of maturity, impulsivity, and the inherent potential for change, and so reformers are asking courts to resentence those serving long prison terms for crimes committed when they were young. Many people advocate for medical parole or compassionate release for the elderly and infirm.  Others focus on people deemed to be low-level, non-violent drug offenders.

At the heart of the problem, however, are all the people serving draconian sentences for crimes committed when they were adults and who are not, at least not yet, suffering from any debilitating illness or in any other “special” category. In fact, it is the “normalcy” of so many cases that highlights the issue we must confront....

Last year, the venerable American Law Institute, a non-governmental organization of judges, lawyers and academics, approved the first-ever revisions to the historic Model Penal Code.  The MPC, taught in virtually every law school, was developed in 1962 to introduce uniformity and coherence to the myriad criminal codes in the 50 states, and serves as a model across the country.  The update to the Code took more than 15 years to complete and yielded a comprehensive 700-page report.

The ALI focused specifically on sentencing in order to address the decades of punitiveness that led to the current state of mass incarceration, made all the more shameful by the significant racial disparities in American jails and prisons. One recommendation in particular addresses the epidemic of 2.2 million people behind bars. The Code now calls for state legislatures to enact a “second look” provision; to create a mechanism to reexamine a person’s sentence after 15 years no matter the crime of conviction or how long the original sentence. If the original sentence remains unchanged, it would be revisited every ten years thereafter.

While many will sound the alarm for “truth-in-sentencing” or the need for finality, the second-look provision asks a very basic question — are the purposes of sentencing better served by a sentence modification or by adhering to the original sentence imposed many years earlier? The commentary to the Code cites a host of utilitarian reasons why long sentences should not be frozen in time, suggesting that “governments should be especially cautious” and act with “a profound sense of humility” when depriving people of their freedom for most of their adult lives.

The commentary notes further that new developments might show that old sentences are no longer empirically valid, as current risk assessment methods claim to be better at predicting risk of recidivism than those previously used. Similarly, new rehabilitative approaches might be discovered for people who at the time of their sentencing were thought resistant to change.

The second-look provision is bold and unprecedented — to actually redress the past 50 years of mass incarceration requires nothing less, as most proposed criminal justice solutions and reforms are prospective and have no impact on those people currently in prison. Further, executive clemency in the form of sentence commutation has also proven to be of limited utility as Presidents and Governors are loath to exercise this power to any serious and meaningful degree.

Second-look allows for mid-course correction if warranted by some measure of changed circumstances -- major changes in the offender, his family situation, the crime victim, or the community — that merit a different sentence.  It is consistent with the growth of restorative justice that seeks to move away from the punishment paradigm of the last several decades.  Second-look also allows the sentencing determination to be made in a calmer atmosphere than existed at the time of the original sentencing, so that any notoriety, outside pressure, or inflamed passions may have abated.

Bills have been introduced in the New York State Legislature regarding parole eligibility for people who are least 55 years old and have served at least 15 years of their sentence, and while the devil may be in the details, they are not insurmountable.  There will be costs associated with establishing second-look processes but money will ultimately be saved as more people are sent home.  Releasing people from prison is often controversial and even one crime committed by a releasee can threaten to shut down any second-look process, so there must be carefully constructed guidelines, created by myriad stakeholders, to ensure the independence of the decision-makers, and that all decisions are consistent, defensible, and transparent.

Mass incarceration is not just about unnecessarily incarcerating masses of people.  It is about unnecessarily keeping masses of people in prison for decades.  A sentence once imposed is not thereby automatically rendered, just, fair and appropriate in perpetuity.  Ultimately, second-look mechanisms are meant to recognize and value the possibility of change and transformation, and to intervene when drastically long sentences are indefensible.

Regular readers should know that I am a big fan of second-look sentencing mechanisms, so I am a fan of this commentary even though it does not fully engage with the reality that second-look provisions in the new MPC are only critical because of the MPC's advocacy for abolishing parole mechanisms. Parole mechanisms (as well as robust use of clemency powers) served for the bulk of the 20th Century to help address many of the problems identified in this commentary. That said, I would favor a world with both a well-structured parole mechanism and second-look sentence provisions so that both the executive branch (via parole) and the judicial branch (via resentencings) can and will review the propriety and necessity of a sentence over time.

I have written about a number of second-look concerns and related issues in a a number of article through the years, and here is just a sampling of these writings:

June 26, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, June 25, 2018

Questioning the use of actuarial risk assessment tools at sentencing

Erin Collins has this notable new commentary at The Crime Report under the headline "The Perils of 'Off-Label Sentencing'." I recommend the piece in full, and here are excerpts:

Current criminal justice reform efforts are risk-obsessed.  Actuarial risk assessment tools, which claim to predict the risk that an individual will commit, or be arrested for, criminal activity, dominate discussions about how to reform policing, bail, and corrections decisions.  And recently, risk-based reforms have entered a new arena: sentencing....  Actuarial sentencing has gained the support of many practitioners, academics, and prominent organizations, including the National Center for State Courts and the American Law Institute. [see Model Penal Code: Sentencing § 6B.09]

This enthusiasm is, at first blush, understandable: actuarial sentencing seems to have only promise and no peril. It allows judges to identify those who pose a low risk of recidivism and divert them from prison.  Society thus avoids the financial cost of unnecessarily incarcerating low-risk individuals.

And yet, this enthusiasm for actuarial sentencing ignores a seemingly crucial point: actuarial risk assessment tools were not developed for sentencing purposes.  In fact, the social scientists who developed the most popular risk assessment tools specified that they were not designed to determine the severity of a sentence, including whether or not to incarcerate someone.  Actuarial sentencing is, in short, an “off-label” application of actuarial risk assessment information.

As we know from the medical context, the fact that a use is “off-label” does not necessarily mean it is ill-advised or ineffective. And, indeed, many contend that actuarial sentencing is a simple matter of using data gleaned in one area of criminal justice and applying it to another.  If we know how to predict recidivism, why not use that information broadly? Isn’t this a prime example of an approach that is smart — rather than tough — on crime?

As I contend in my article, Punishing Risk, which is forthcoming in the Georgetown Law Journal this fall, the practice of actuarial sentencing is not that simple, nor is it wise. In fact, using actuarial information in this “off-label” way can cause an equally unintended consequence: it can justify more, not less, incarceration — and for reasons that undermine the fairness and integrity of our criminal justice system.

The actuarial risk assessment tools that are being integrated into sentencing decisions, such as the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) tool, and the Level of Services Inventory-Revised (LSI-R), were designed to assist corrections officers with a specific task: how to administer punishment in a way that advances rehabilitation.  They are intended to be used after a judge has announced the sentence.  They are based on the Risk-Need-Responsivity principle, according to which recidivism risk is identified so that it can be reduced through programming, treatment and security classifications that are responsive to the individual’s “criminogenic needs” (recidivism risk factors that can be changed).

Sentencing judges, in contrast, do not administer punishment but rather determine how much punishment is due.  In doing so, they may use actuarial risk predictions to advance whatever punishment purpose they deem appropriate.  While they may decide to divert a low-risk individual from prison in order to increase their rehabilitative possibilities, they may also decide to sentence a high-risk individual more harshly — not because doing so will increase her prospects of rehabilitation, but because it will increase public safety....

The tools measure risk based on a range of characteristics that are anathema to a principled sentencing inquiry, such as gender, education and employment history, and family criminality. Perhaps consideration of these factors makes sense if the predictive output is used to administer punishment in a way that is culturally competent and individualized.

But in the sentencing context, it allows the judge to punish someone more harshly based on a compilation of characteristics that are inherently personal and wholly non-culpable, and often replicate racial biases that pervade other areas of the criminal justice system.  In other words, actuarial sentencing allows judges to defy the well-established tenet that we punish someone for what they did, not who they are....

Incorporating these tools into sentencing conflates recidivism risk, broadly defined, with risk to public safety. If we want to reduce our reliance on public safety, we must refine—rather than expand — the risk that counts for sentencing purposes.

Some of many prior related posts with links to articles and commentary on risk assessment tools:

June 25, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Monday, June 18, 2018

Attorney General Sessions laments state recidivism data and impact of Johnson ACCA ruling

Attorney General Jeff Sessions today delivered these remarks to the National Sheriffs' Association Annual Conference, and his comments covered lots of criminal justice ground that I do not recall him previously speaking about directly. The speech is worth reading in full because of all it reveals about how AG Sessions' looks at crime and criminals, and here are just some of the comments that caught my attention:

This is a difficult job, but when rules are fairly and consistently enforced, life is better for all — particularly for our poor and minority communities.  Most people obey the law. They just want to live their lives. They’re not going to go out and commit violent crimes or felonies.

As my former boss, President Reagan used to say, “Most serious crimes are the work of a relatively small group of hardened criminals.”  That is just as true today as it was back then.  That’s why we’ve got to be smart and fair about how we identify criminals and who we put behind bars and for how long....

I want to call your attention to something important.  A few weeks ago, the Department of Justice’s Bureau of Justice Statistics released a new report on the recidivism rate of inmates released from state prisons in 30 states.  This is the longest-term study that BJS has ever done on recidivism and perhaps the largest.  It was designed by the previous administration. The results are clear and very important. The results are of historic importance.  The reality is grim indeed.

The study found that 83 percent of 60,000 state prisoners released in 2005 were arrested again within nine years.  That’s five out of every six.  The study shows that two-thirds of those — a full 68 percent — were arrested within the first three years. Almost half were arrested within a year — one year — of being released.

The study estimates that the 400,000 state prisoners released in 2005 were arrested nearly 2 million times during the nine-year period — an average of five arrests each.  Virtually none of these released prisoners were arrested merely for probation or parole violations: 99 percent of those arrested during the 9-year follow-up period were arrested for something other than a probation or parole violation.

In many cases, former inmates were arrested for an offense at least as serious — if not more so — as the crime that got them in jail in the first place. It will not surprise you that this is often true for drug offenders.

Many have thought that most drug offenders are young experimenters or persons who made a mistake.  But the study shows a deeper concern.  Seventy-seven percent of all released drug offenders were arrested for a non-drug crime within nine years.  Presumably, many were arrested for drug crimes also.  Importantly, nearly half of those arrests were for a violent crime. We can’t give up....

This tells us that recidivism is no little matter.  It is a fact of life that must be understood.  But overall, the good news is that the professionals in law enforcement know what works in crime.  We’ve been studying this and working on this for 40 years.

From 1964 to 1980, the overall violent crime rate tripled.  Robbery tripled. Rape tripled.  Aggravated assault nearly tripled. Murder doubled.  And then, from 1991 to 2014, violent crime dropped by half. Murder dropped by half.  So did aggravated assault.  Rape decreased by more than a third, and robbery plummeted by nearly two-thirds.

That wasn’t a coincidence.  Between that big rise in crime and that big decline in crime, President Reagan and the great Attorney General Ed Meese went to work.  There was the elimination of parole, the Speedy Trial Act, the elimination of bail on appeal, increased bail for dangerous criminals before trial, the issuing of sentencing guidelines, and in certain cases, mandatory minimum sentences.

We increased funding for the DEA, FBI, ATF, and federal prosecutors. And most states and cities followed Reagan’s lead.  Professionalism and training dramatically increased in local law enforcement.  These were the biggest changes in law enforcement since the founding of this country.  These laws were critical to re-establishing public safety.

When a criminal knows with certainty that he is facing hard time, he is a lot more willing to confess and cooperate with prosecutors.  On the other hand, when the sentence is uncertain and up to the whims of the judge, criminals are a lot more willing to take a chance....

The certainty of a significant and fixed sentence helps us get criminals to hand over their bosses, the kingpins and the cartel leaders — and helps remove entire gangs and criminals from the street.  Left unaddressed these organizations only get richer, stronger, more arrogant and violent placing whole neighborhoods in fear.

Law enforcement officers understand that. Sheriff Eavenson and NSA have been critical allies in the fight to preserve mandatory minimums for a long time — and I want to thank you for your strong advocacy.  Many doubt their value.  Maybe this is obvious, but a recidivist can’t hurt the community if he is incarcerated.  A lot of people who would have committed crimes in the 1990s and 2000s didn’t because they were locked up.  Murders were cut in half after 1980....

Look, our goal is not to fill up the prisons.  Our goal is to reduce crime and to keep every American safe.  We should not as a policy keep persons in prison longer than necessary. But clear and certain punishment does in fact make America safer....

One of the most important laws that President Reagan signed into law was the Armed Career Criminal Act.  That’s the law that requires a minimum 15- year sentence for felons caught with a firearm after their third robbery or burglary conviction.

These are not so-called “low-level, nonviolent drug offenders” who are being picked on.  These are criminals who have committed multiple serious offenses.  In 2015 — after 30 years on the books — one critical line of the law was struck down by the Supreme Court as being too vague.

But because of this impactful ruling, every federal prosecutor lost one of their most valuable tools and they ask me for help regularly.  Just one example is Jeffrey Giddings of Oregon.  He had more than 20 convictions since 1991. He was let out of jail after the Court ruling and only 18 days later shot a police officer and held two fast food employees hostage.  He has now been sentenced to another 30 years in prison.  And the last thing he did before being put back in jail was to lash out in a tirade of profanity at police....

More than 1,400 criminals — each convicted of three felonies — have been let out of jail in the three years since the Court ruling.  And so far, more than 600 have been arrested again.

On average, these 600 criminals have been arrested three times since 2015.  A majority of those who have been out of prison for two years have already been arrested again. Here in Louisiana, nearly half of the released ACCA offenders released because of this court ruling have already been rearrested or returned to federal custody....

In this noble calling, all of us in this room are leaders. The NSA is fulfilling its responsibility in this regard. We must communicate sound principles to our policy leaders and to the American people when it comes to reducing crime:

  • A small number of people commit most of the crimes;
  • Those who are jailed for crimes are very likely to commit more crimes—often escalating to violent crimes — after their release; and
  • Congress and our legislatures must consider legislation that protects the public by ensuring that we incapacitate those criminals and deter others

And so the point is this: we should always be looking for effective and proven ways to reduce recidivism, but we must also recognize that simply reducing sentences without reducing recidivism unfairly creates more victims.

This Department of Justice under President Trump is committed to working with you to deliver justice for crime victims and consequences to criminals. We want to be a force multiplier for you.

The President has ordered us to back the women and men in blue and to reduce crime in America. And that’s what we intend to do. We embrace that mission and enforce the law with you.

There is a bit of rich irony to the Attorney General extolling the importance and value of "clear and certain punishment" just before lamenting a SCOTUS ruling that struck down a punishment as too vague to be clear or certain in any way.  That irony aside, I am not at all surprised to see him highlight the depressing new data, first blogged in this prior post, revealing terrible recidivism numbers among those released from state prisons in 2005.  I am not sure from where the ACCA-post-Johnson-release recidivism data comes, but I am sure all these numbers fuel the AG's belief that we should always be inclined to (over-)incarcerate in efforts to improve public safety.

June 18, 2018 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Sunday, June 03, 2018

"Equal Protection Under the Carceral State"

The title of this post is the title of this new article authored by Aya Gruber now available via SSRN.  Here is its abstract:

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies.  In contrast to these conventional views, I argue that the primary anxiety exhibited by the McCleskey majority was a “leniency fear” of death penalty abolition. Opinion author Justice Lewis Powell made clear his view that execution was the appropriate punishment for McCleskey’s crime and expressed worry that McCleskey’s victory would open the door to challenges of criminal sentences more generally. 

Understanding that the Court’s primary political sensitivity was to state penal authority, not racial hierarchy, complicates the progressive sentiment that McCleskey’s call-to-action is securing equality of punishment. Derrick Bell’s “interest convergence” theory predicts that even conservatives with an aversion to robust equal protection law will accept racial-disparity evidence when in the service of crime-control values.  Indeed, Justice Powell may have been more sanguine about McCleskey’s discrimination claim had mandatory capital punishment been an option.  Accordingly, I caution that, outside of the death penalty context, courts and lawmakers can address perceived punishment disparities through “level-up” remedies, such as mandatory minimum sentences or abolishing diversion (which is said to favor white defendants).  There are numerous examples of convergence between antidiscrimination and prosecutorial interests, including mandatory sentencing guidelines, aggressive domestic violence policing and prosecution, and the movement to abolish Stand-Your-Ground laws.

June 3, 2018 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1)

Thursday, May 31, 2018

"Retributivist Theories' Conjoined Twins Problems"

The title of this post is the title of this notable new paper on SSRN authored by Brittany Deitch.  Here is its abstract:

This Article expands a previously published article, which introduced a novel problem to the centuries-old debate on the retributivist justification of punishment.  The first article applied the problem of conjoined twins, where one commits a crime and the other is innocent, to pure retributivism.  The conjoined twins problem showed that pure retributivism, which holds absolute duties to punish all who are guilty and none who are innocent, fails as a complete theory of punishment.  This Article broadens the application of the conjoined twins problem by applying the problem to other versions of retributivism, including deontological, consequentialist, threshold, negative/weak, victim-conscious, and mixed retributivist theories.  Exploring each version in turn, this Article uses the conjoined twins problem to show that no version of retributivism can serve as a complete theory of punishment.

May 31, 2018 in Purposes of Punishment and Sentencing | Permalink | Comments (1)

Sunday, May 27, 2018

Examining thoughtfully modern trend to prosecute overdose deaths as homicides

The New York Times has this lengthy new article headline "They Shared Drugs. Someone Died. Does That Make Them Killers?".  The subheadline highlights the basic theme of the piece: "Prosecutors are increasingly treating overdose deaths as homicides, but they aren’t just going after dealers.  Friends, family and fellow users are going to prison."  To its credit, the Times here tried to dig into qualitative and quantitative stories here, and I recommend this piece in full.  Regular readers know that I have lamented, such as in prior posts here and here, that reporting on the decision to use homicide laws in overdose cases often fails to note that many states punish unintentional homicide less severely than the feds punish basic drug dealing.  Though the Times fails in this regard as well, it still provides the most thoughtful account of what surrounds these cases.  Here are excerpts:

As overdose deaths mount, prosecutors are increasingly treating them as homicide scenes and looking to hold someone criminally accountable. Using laws devised to go after drug dealers, they are charging friends, partners and siblings. The accused include young people who shared drugs at a party and a son who gave his mother heroin after her pain medication had been cut off. Many are fellow users, themselves struggling with addiction.

Such cases are becoming more common even as the role of the criminal justice system in combating drug abuse has become hotly contested, and even as many prosecutors — including those who pursue overdose death cases — say they embrace the push to treat addiction as a public health crisis rather than a crime.

Overdose prosecutions, they say, are simply one tool in a box that should include prevention and treatment. But there is no consensus on their purpose. Some believe they will reduce the flow of drugs into their communities, deter drug use or help those with addiction “hit bottom.” To others, the cases are not meant to achieve public policy goals, but as a balm for grieving families or punishment for a callous act. “I look at it in a real micro way,” said Pete Orput, the chief prosecutor in Washington County outside Minneapolis. “You owe me for that dead kid.”

Who owes whom for what is less clear in the case of the Malcolm family in Breckenridge, Colo., where Michael Malcolm’s younger son was charged in the overdose death of his older brother, with whom he shared drugs purchased on the internet. The cost of prosecution and incarceration, Mr. Malcolm said, would have been better spent on addiction treatment that the family could not afford. “It’s kind of like blaming the leaves on the tree, you know?” he said. “What about the roots?”

In 15 states where data was available, The New York Times found more than 1,000 prosecutions or arrests in accidental overdose deaths since 2015. Between 2015 and 2017, the number of cases nearly doubled. Dozens more cases were documented in news reports. In all, overdose prosecutions were found in 36 states, with charges ranging from involuntary manslaughter to first-degree murder. In Minnesota, the number of such cases — sometimes referred to as “murder by overdose” — quadrupled over a decade. Pennsylvania went from 4 cases in 2011 to 171 last year after making it easier to prosecute....

Many of those convicted are serving hard time: A Long Island woman whose best friend texted her from a business trip asking for heroin was sentenced to six years after he died taking the drugs she sent him. A former pipe fitter in Minnesota who shot speedballs with a mother of three got 11 years. A Louisiana man who injected his fiancée — both were addicted, his lawyer said — got life without parole....

The concept of overdose prosecutions took hold after the cocaine-related death in 1986 of Len Bias, the college basketball star, two days after he was drafted by the Boston Celtics. A friend, who called 911 when Mr. Bias collapsed, was accused of providing the cocaine, but was acquitted. Soon after, states began passing so-called Len Bias or “drug delivery resulting in death” laws. Louisiana made it second-degree murder. Pennsylvania created a crime punishable by up to 40 years in prison. Congress passed the sweeping 1986 Anti-Drug Abuse Act, which included a mandatory minimum sentence of 20 years for federal cases in which drugs resulted in death or serious injury.

The Len Bias laws were supposed to go after drug dealers — “greed-soaked mutants,” Howell Heflin of Alabama called them on the Senate floor. But the role of dealer is far less clear cut than lawmakers envisioned. The legal definition of drug dealing, or “distribution,” typically covers behavior that is common for even casual users, including sharing, giving drugs away or getting reimbursed for a buy. Under complicity laws, helping to arrange a deal can be treated the same as dealing....

Despite the high cost of imprisonment — $33,000 a year on average, compared with roughly $5,000 to $7,000 for treating addiction with methadone — new Len Bias laws have begun to appear. Delaware enacted one in 2016, and West Virginia did so last year. In Rhode Island, Attorney General Peter Kilmartin has proposed a mandatory life sentence....

In order to gain a better sense of where defendants fit on the user-dealer continuum, The Times looked to Pennsylvania, where overdose prosecutions have soared since a change in the law in 2011 made it unnecessary to prove that the accused had malice toward the victim. The Times examined drug-related death cases filed in criminal court in the first half of last year — 82 cases in all, with 80 defendants. At least 59 of the accused were drug users themselves, according to police reports, court filings and interviews with law enforcement officials and defense lawyers. Roughly half had a relationship with the victim other than that of dealer. That group included six boyfriends, one girlfriend, a cousin, a brother and a son. A few of those charged had tried to save the victims. (Good Samaritan laws protect those who call for help from drug possession charges, but generally not homicide charges.)...

Overdose prosecutions picked up steam under the Obama administration. In 2015, the National Heroin Task Force recommended that cases against heroin dealers whose drugs proved fatal should be prioritized for three reasons: the product might be particularly potent, the prosecutions would serve as a deterrent, and the attention would educate the public about the “severe harm caused by heroin.”...

Even hard-liners like John Walters, the director of the White House Office of National Drug Control Policy under President George W. Bush, question the use of overdose homicide prosecutions without more systematic proof that they reduce drug use and emergency room visits. “In the absence of that, this is all gestures,” Mr. Walters said.

But many law enforcement officers hope that the cases act as a deterrent. When five people overdosed in two months in Twin Lakes, Wis. (population 6,000), the police charged 10 with reckless homicide. “We kind of want to put a bubble around our community and say we don’t — we’re not going to accept this here,” said Adam Grosz, the chief of police. But one of his detectives, Katie Hall, said that the arrests had little effect on supply and demand: “If we can take one off, well, then they just go to the next one.”

Paradoxically, the punitive approach to overdoses is underpinned by the same rationale as the push to treat addiction as a public health issue. In the prosecutorial worldview, a criminal investigation dignifies victims by treating their deaths as crimes instead of sad inevitabilities. “The analogy for me is the dead prostitute,” Mr. Orput said. “You know, years ago, the cop would look and go, ‘Well, that’s what happens,’ and that’s what they’d say with the junkie: ‘That’s why we don’t do drugs.’”

Some of many prior related posts:

May 27, 2018 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (7)

Wednesday, May 23, 2018

"Capitalizing on Criminal Justice"

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

The U.S. criminal justice system “piles on.”  It punishes too many for too long.  Much criminal law scholarship focuses on the problem of excessive punishment.  Yet for the low-level offenses that dominate state court workloads, much of the harm caused by arrests and convictions arises outside the formal criminal sentence.  It stems from spiraling hidden penalties and the impact of a criminal record.  The key question is not just why the state over-punishes, but rather why so many different institutions — law enforcement institutions as well as civil regulatory agencies and private actors — find it valuable to do so.

This Article argues that the reach of the criminal justice system is not just the product of overly punitive laws, but also the product of institutions capitalizing on criminal law decisions for their own ends.  Criminal law is meant to serve a public purpose, but in practice, key institutions create, disseminate, and rely on low-level criminal records because they offer a source of revenue or provide a cost-effective way of achieving discrete administrative objectives.  These incentives drive and expand the reach of the criminal justice system, even as they work in tension with the state’s sentencing goals.  This dynamic creates obvious harm.  But it also benefits key actors, such as municipalities, privatized probation companies, background check providers, employers, and others who have incentives to maintain the system as it is.  This Article identifies how organizational incentives lead a host of institutions to capitalize on criminal law decisions, and it argues that reform efforts must, as a central goal, recognize and respond to these incentives.

May 23, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, May 22, 2018

Two new short essays providing ideas in criminal justice administration to think about for a long time

I have noticed these two notable new essays on SSRN that have the benefit of both being short reads with ideas worth thinking long and hard about:

"Classical Liberal Criminal Law" by Rachel Barkow

Abstract: This essay, written for a festschrift for Richard Epstein, argues that classical liberals should support robust constitutional protections in criminal matters.  It specifically highlights the need for robust Eighth Amendment review.

"Approaches to Federal Judicial History: The Federal Courts and Criminal Justice" by Sara Mayeux

Abstract: Mass incarceration has long constituted not only a sociological fact and a moral disaster in the United States, but also a major sector of the public and private economy; a significant component of ideologies of race, gender, and sexuality; and a distorting influence upon electoral processes and deliberative democracy.  What role has the federal judiciary played in this complex history?  This short historiographical essay provides a brief and necessarily selective introduction to exemplary scholarship addressing the relationship between the federal courts and criminal justice in U.S. history, and seeks to encourage historians of the carceral state — even or especially those who do not define themselves primarily as legal historians — to join the conversation.  The essay is structured around three of the most significant ways in which the federal judiciary has historically made and enforced criminal justice policy: by adjudicating federal criminal prosecutions; by reviewing state-court convictions, via federal habeas jurisdiction; and by reforming state prisons and local jails, via constitutional conditions-of-confinement litigation.  This essay was prepared at the invitation of the Federal Judicial History Office for a forthcoming volume.

May 22, 2018 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

"Against Life Without Parole"

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

Over 40,000 people in the United States today are serving life without parole sentences (LWOP) — more than triple the number in 1992.  This figure understates the case, since parole has become increasingly rare for the 140,000 prisoners serving life sentences that ostensibly permit parole. I argue that LWOP sentences should be abolished.

After reviewing the facts about LWOP, I show that of the standard reasons for punishment only retributivism can hope to justify it.  I investigate the varieties of retributivism and argue that plausible versions do not entail or even recommend it.  So, we can reject LWOP without abandoning retributivism — an important point, strategically and perhaps morally as well.

I then make the positive case for abolition, on three main grounds.  First, few (if any) people are fully culpable for their criminal acts; we should mitigate their punishment accordingly.  Second, abolishing life without parole — and indeed all life sentences — is likely to bring many benefits: to prisoners, their loved ones, the community in general, and to those who decide for abolition and who carry it out.  Among these is the promotion of certain attitudes it is good for people to have, including faith in humanity.  Finally, there’s a certain pointlessness in continuing to punish a person who has undergone changes of character that distance them greatly from the person who committed the crime many decades earlier.

May 22, 2018 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (12)

Monday, May 21, 2018

In shadow of Parkland, a notable discussion with victim families about capital prosecutions in Florida

This local article from Florida, headlined "For victims' families, no easy answer on whether the ordeal of a death penalty case is worth it," take a thoughtful look at what a death penalty prosecution can mean for the families of murder victims. I recommend the piece in full, and here are excerpts:

The parents of the murdered students of Marjory Stoneman Douglas High School have been asked — directly by prosecutors, indirectly by defense lawyers, and while talking amongst themselves — whether the young man responsible for mercilessly slaughtering their children should be executed for the crime.

At stake is more than just the life of the killer, Nikolas Cruz.  Whenever the death penalty is ordered in Florida, the case is automatically appealed, guaranteeing the victims’ families will be locked with Cruz in a lengthy process that can take years or even decades to resolve. It’s a position no one envies, but some who have been through similar ordeals say the Parkland parents cannot give a wrong answer, no matter what they decide.

The South Florida Sun Sentinel talked to family members of three victims whose accused killers faced the death penalty. They agreed that the process is long, grueling and takes an emotional toll. Yet none regret their decisions to ask prosecutors to seek a death sentence.

The Broward State Attorney’s Office already announced that it plans to seek the death penalty against Cruz, 19, who killed 14 students and three staff members at the Parkland high school.  Prosecutors won’t say whether the families’ input could change the strategy.  And Broward Public Defender Howard Finkelstein, whose office is representing Cruz, has offered to have him plead guilty in exchange for a sentence of life in prison.

Fred Guttenberg, whose daughter Jaime was among the dead, said Finkelstein’s offer is tempting. “I support the death penalty,” he said. “But I don’t want to pursue it in the case of my daughter’s killer. … If there’s a chance Cruz is willing to take a plea deal, I say go for it.”  Guttenberg said his main concern is having to relive the case at every stage — a trial, followed by a penalty phase, followed by appeals, the specter of a retrial, repeating the process from the beginning, “only to end up at what is likely to be a life sentence anyway.”...

For Chris Crowley, staying away wasn’t an option.  Crowley waited 27 years to see his sister’s killer executed in 2013. William Frederick Happ confessed in the execution chamber and begged for forgiveness before he was put to death by lethal injection.  His victim, Angela Crowley, had lived in Lauderdale Lakes for just a few months and was working at a travel agency in the spring of 1986.  She was on her way to visit a friend in Citrus County when she was abducted and murdered by Happ.

Chris Crowley, 61, said watching Happ die gave him a kind of closure he never could have gotten had he known the killer was in a cell getting three meals a day. “He would have had the possibility to kill again,” Crowley said. “The possibility of escape. The possibility of a commuted sentence. With the death sentence, there’s finality.”...

Deborah Bowie calls her situation “the textbook case for everything that is dysfunctional about capital punishment.”  Bowie’s sister, Sharon Anderson, was murdered in 1994 along with two others in what became known as the Casey’s Nickelodeon murders.  The other victims were Casimir "Butch Casey" Sucharski, former owner of the popular Pembroke Park bar that gave the case its nickname, and Marie Rogers....  “It’s a marathon every time,” said Bowie. “I feel for any family that is starting a death penalty case at the beginning. They have no idea what they’re in for.” 

May 21, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, May 20, 2018

"Punishing Risk"

The title of this post is the title of this new article on SSRN authored by Erin Collins.  Here is the abstract:

Actuarial recidivism risk assessments — or statistical predictions of the likelihood of future criminal behavior — drive a number of core criminal justice decisions, including where to police, who to release on bail, and how to manage correctional institutions.  Recently, this predictive approach to criminal justice has entered a new arena: sentencing.  Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country.  This enthusiasm is understandable.  Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration.

And yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial point: actuarial risk assessment tools are not intended for use at sentencing.  In fact, their creators explicitly warn that these tools were not designed to aid decisions about the length of a sentence or whether to incarcerate someone.  And yet, that is precisely how those who endorse actuarial sentencing — including the American Law Institute in the recently revised Model Penal Code for Sentencing — suggest they should be used.

Actuarial sentencing is, in short, an unintended, “off-label” application of actuarial risk information.  This Article re-examines the promises of actuarial sentencing in light of this observation and argues that it may cause a number of equally unintended and detrimental consequences.  Specifically, it contends that this practice distorts, rather than refines, sentencing decisions.  Moreover, it may increase reliance on incarceration — and for reasons that undermine the fairness and integrity of the criminal justice system.

May 20, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Thursday, May 17, 2018

"How should we deal with wrongdoing? And you can’t say ‘prison.’"

The title of this post is the headline of this notable new Washington Post commentary authored by Danielle Allen. I recommend the full piece, and here are excerpts:

How should a kid like Michael [involved in multiple armed robberies at age 15] be sentenced? How, more generally, should we respond to wrongdoing? Here’s my challenge to you: In my thought experiment, you can’t answer “prison.”

Given that constraint, what punishment should Michael receive? Here are our goals: We want to respond to wrongdoing so as to ensure that victims are made whole, that society is made whole, and that the wrongdoer, too, becomes whole and, having paid recompense, is prepared to contribute productively to society.

Does your mind draw a blank? If so, you are like most of us, accustomed to a system that thinks incarceration is the only way to respond to wrongdoing.

In the United States, 70 percent of our criminal sanctions consist of incarceration.  That’s why it’s all we can think of. But a world that operates without an extensive reliance on prison is not a utopia; it is only a plane ride away.  In Germany, incarceration is used for 6 percent of sanctions; in the Netherlands, it’s 10 percent, according to a 2013 Vera Institute report comparing our criminal-justice system with theirs.

Germany and the Netherlands rely predominantly on fines, linked to the offender’s ability to pay, and “transactions” or community sanctions — for instance, work orders that benefit the community, or training orders, or a combination. Halfway houses connect residential oversight with supervised work opportunities, which can be connected to paying restitution to victims and the community.  The penal systems are built around the principles of rehabilitation, re-socialization and “association.”  This is the idea that a criminal sanction is more likely to result in a wrongdoer’s successful reentry to society if it works to strengthen, not damage, the wrongdoer’s positive connections to family and community....

Currently, two criminal-justice-reform strategies are moving through Congress. Last fall, Sens. Charles E. Grassley (R-Iowa) and Richard J. Durbin (D-Ill.) introduced the Sentencing Reform and Corrections Act.  The act tackles the problem of mandatory minimums and seeks to “improve fairness in sentencing of low-level, nonviolent offenders,” so as to permit law enforcement to focus on “violent offenders, major drug traffickers and criminal masterminds.” This month, Sens. John Cornyn (R-Tex.) and Sheldon Whitehouse (D-R.I.), alongside Reps. Douglas A. Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.), introduced a prison reform bill called the First Step Act.  This bill would offer individualized recidivism-reduction plans to all people incarcerated in federal prisons, and increase access to vocational training and educational support, as well as substance-abuse and mental-health resources. The bill would also introduce halfway houses or home confinement for the final phase of incarceration.

These bills have wrongly been cast as competitors.  If we are to undo mass incarceration, we have to envision viable alternatives to incarceration.  By making halfway houses and rehabilitative strategies central to our sanctioning system, the First Step Act would help the American public see new possibilities.  It could thereby lay the foundation for true transformation of sentencing.

Policymakers too often forget that three-quarters of their work should be winning the hearts and minds of the public.  To win sustainable, unwavering, widespread support for meaningful sentencing reform, we have to show that strategies of rehabilitation and restorative justice work.  Lawmakers should embrace the First Step Act as a necessary part of painting that new picture.  The Sentencing Reform and Corrections Act would benefit from our collective ability to imagine alternatives to incarceration.  

May 17, 2018 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (15)

Wednesday, May 16, 2018

"The Right to Two Criminal Defense Lawyers"

the title of this post is the title of this notable new article authored by Bruce Green now available via SSRN. Here is its abstract:

In conjunction with a symposium on “disruptive innovation in criminal defense,” this article proposes that indigent defendants be assigned two lawyers each of whom would have primary responsibility for different functions -- the “settlement lawyer” would have responsibility for the counseling and negotiating roles while the “trial lawyer” would be the principal advocate. 

The proposal to divide defense representation between two lawyers, as a potential “disruptive innovation”, provides an occasion to consider various problems associated with indigent defense apart from underfunding and excessive caseloads.  These problems relate to how some defense lawyers think about and structure their work, where they choose to direct their energy and how they prioritize their time, how they respond to incentives, preferences and even unconscious motivations, and how they relate to prosecutors, clients or others in the criminal process.  Whether or not a right to two lawyers is realistically achievable, the proposal provides a vehicle for contemplating deficiencies in criminal defense representation and potential responses.

May 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Monday, May 14, 2018

Interesting accounting of history and modern realities of victims' rights

The New Yorker has this notable lengthy new article authored by Jill Lepore under the headline "The Rise of the Victims’-Rights Movement: How a conservative agenda and a feminist cause came together to transform criminal justice."  The article covers lots history (with a particular focus on the importance of the Oklahoma City bombing) along with considerable law and policy (taking mostly a jaundiced view on victim rights). I recommend the piece in full, and here are a few excerpts:

Because victims’ rights is a marriage of feminism and conservatism, the logic behind its signal victory, the victim-impact statement, rests on both the therapeutic, speak-your-truth commitment of a trauma-centered feminism and the punitive, lock-them-up imperative of law-and-order conservatism.  Arguably, this has been a bad marriage....

Some of the things admitted as victim-impact evidence, including testimony that the victim was an excellent piano player, was “good honest hardworking God fearing people,” was a “smart person with higher IQ than others in her family” or had “a 3.8 grade point average,” would appear to advance the fundamentally anti-democratic notion that the lives of the eloquent, the intelligent, the beautiful, the cherished are more worthy of the full protection of the law than others.

How much evidence is enough, or too much?  Challenges in some states have sought to limit admissible victim-impact witnesses to numbers that range from three to eleven, but, effectively, the number is limitless.  What kind of evidence is allowed?  Courts have admitted poems, “handcrafted items made by the victim,” “letters children wrote to their murdered mother,” and “photographs of the stillborn child victim dressed in clothes that the victim-mother had intended him to wear home from the hospital.”  Judges often report that they themselves find it difficult to recover their emotional equilibrium after hearing victim-impact statements.  Sorrow knows no bottom....

Thirty-two states have passed victims’-rights amendments; five more ballot initiatives may pass in November. Once enough states have acted, activists will again press for a federal amendment.  The last time the measure reached Congress, one of the prosecutors in the Oklahoma City bombing case argued against it (victims had tried to prevent one of McVeigh’s associates from signing a plea agreement in exchange for his testimony against McVeigh, which proved crucial in the trial).  [Paul] Cassell believes that there is much more work to be done.  The movement’s latest campaigns would expand the range of victim-impact evidence allowed in both capital and non-capital cases, and more strictly enforce victims’ rights that are already on the books.  In the age of #MeToo, victims’ rights are making remarkable political headway, for many of the same reasons they did after the Oklahoma City bombing.  Tragedy is a fierce tailwind.  And, as Susan Bandes puts it, “Nobody really wants to have to tell victims, or survivors of violent crime, that they cannot be heard.”

Critics remain.  Nancy Gertner, a former district-court judge from Massachusetts, is among those who have questioned Judge Aquilina’s conduct at Larry Nassar’s sentencing. Gertner told me, “The question is whether the victims needed that, as bloodletting, and the question is should the justice system allow that?  Or is it a throwback to public hanging?” Scott Sundby, a former prosecutor who studies capital juries, told me that the Nassar sentencing reminded him of Biblical punishments.  “Hey, we all get to pick up a rock and throw it at this person!”

May 14, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, May 08, 2018

"Are Elderly Criminals Punished Differently Than Younger Offenders?"

The question in the title of this post is the headline of this new piece at HowStuffWorks.  The question is prompted by the upcoming sentencing of 80-year-old Bill Cosby, and I had the pleasure of speaking to the reporter on the topic.  Here are excerpts from the piece (with a few links from the original):

After Bill Cosby's recent conviction in a Montgomery County, Pennsylvania court on three counts of aggravated indecent assault, the judge in the case rejected the prosecution's request that the 80-year-old comedian and actor, who his attorneys say is legally blind, be sent immediately to jail pending sentencing.   "With his age, his medical condition, I'm not going to simply lock him up right now because of this," Judge Stephen T. O'Neill explained when he allowed Cosby to remain at home on bail as he awaits sentencing, according to the Philadelphia Inquirer.

Some think that decision gives a hint of how Cosby's sentencing will go.  Under the law, he could receive as much as 30 years in prison, and the state's sentencing guidelines recommend between five-and-a-half and nine years.  But as CNN reports, many legal experts suspect that Cosby may get a lesser sentence, at least in part because of his age and health.

The Cosby case raises a discomforting question.  Should elderly offenders be treated more leniently by the courts than younger criminals, because they have less time left to live, and because their physical frailty might make it more difficult for them to survive a prison term?....

The relatively few studies on the subject suggest that judges do often give older offenders a break.  One study published in the Journals of Gerontology: Series B in 2000 found that in Pennsylvania courts, offenders in their 60s were 25 percent less likely to be sentenced to prison than those who were in their 20s, and their sentences were eight months shorter on average.  Those who were in their 70s got an even sweeter deal — they were 30 percent less likely to end up behind bars than 20-somethings, and those who were incarcerated served 13 months less on average.

More recently, a study by Arizona State University researchers, published in 2014 in the journal Criminal Justice Studies, similarly found that in the federal court system, judges gave older offenders a "senior citizen discount" when it came to jail time.

Prior related posts:

May 8, 2018 in Celebrity sentencings, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (9)

In latest speech, AG Jeff Sessions calls "war on crime and drugs ... a roaring success"

Today, Attorney General Jefferson Sessions delivered this speech at the Gatlinburg Law Enforcement Training Conference.  The use of the phrase "roaring success" to describe the "war on crime and drugs" caught my attention, and here is some context and some more notable passages from what AG Sessions had to say today:

My best judgement is that working together we have an historic opportunity to make our country better, safer, and more prosperous. We don’t come to this conference with a blank slate. We are experienced. We are professional. We are trained to do that which the times demand.

The problem is that we got away from the proven policies that reduced crime all over this country: community-based policing, incarcerating serious repeat criminals, new technologies, more officers, and more prosecutors. The war on crime and drugs did not fail. It was a roaring success. The success came as a direct result of rejecting the criticism and policies of the progressive left. The country gave its attention to the American people and crime victims for a change. High school drug use rates and homicide rates fell by half after the dreamland policies of the fuzzy-headed left were rejected, and sound professional policies were adopted....

Of course we don’t need anyone in jail that doesn’t need to be there. But revolving prison doors that allow dangerous criminals to prey on the innocent will not produce safety. Indeed homicide increased by 12 percent in 2015 and 8 percent in 2016 after 22 years of decline. Drug use, addiction and overdoes deaths have surged. We must work resolutely to stop those trends and to reverse them. We know how. We have proven what works. Science proves what works. We share good practices at conferences like this all the time.

My goal is to support you, to empower you, and to unleash you and your law enforcement partners to apply the good and lawful policies that are proven to make our communities safer.

This point was given a powerful support just a few weeks ago when Paul Cassel and Richard Fowles of the University of Utah analyzed the dramatic surge in Chicago homicides in 2016. Homicides went from 480 in 2015 to 754 in 2016 — a stunning event. They asked why. They considered numerous possible causes. They concluded the 58 percent increase was caused by the abrupt decline in “stop and frisks” in 2015. There had been a horrific police shooting, protests, and an ACLU lawsuit. The settlement of that lawsuit resulted in a decline in stops from 40,000 per month to 10,000 per month. Arrests fell also. In sum, they conclude that these actions in late 2016, conservatively calculated, resulted in approximately 236 additional victims killed and over 1,100 additional shootings in 2016 alone. The scholars call it the “ACLU effect”.

Look, this does not surprise you experienced professionals. If you want crime to go up, let the ACLU run the police department. If you want public safety, call the professionals. That is what President Trump believes and that is what I believe. Let’s put our focus on what works.

These are our explicit goals for 2018: to bring down violent crime, homicides, opioid prescriptions, and overdose deaths....

We have tolerated and winked at the illegality in our immigration system for far too long. It’s time that we put ourselves on the path to end illegal immigration once and for all. And, that will be one step towards reducing crime. And it will build on the centerpiece of our crime reduction strategy: Project Safe Neighborhoods, or PSN.

Here’s how it works. I want our U.S. Attorneys to target and prioritize prosecutions of the most violent people in the most violent areas. And I’ve directed that they engage with a wide variety of stakeholders – our state and local law enforcement partners, as well as others like community groups and victims’ advocates – in order to identify the needs specific to their communities and develop a customized violent crime reduction plan.

This approach has been proven to work. One study showed that, in its first seven years, PSN reduced violent crime overall by 4.1 percent, with case studies showing reductions in certain areas of up to 42 percent. PSN has the flexibility necessary for it to work in every district. PSN is going to build on the results we have achieved across America over the past year.

In 2017, the Department of Justice brought cases against the greatest number of violent criminals in a quarter of a century. We charged the most federal firearm prosecutions in a decade. We convicted more than 1,200 gang members. We have already charged hundreds of people suspected of contributing to the ongoing opioid crisis — including more than 150 doctors for opioid-related crimes. Sixteen of these doctors prescribed more than 20.3 million pills illegally. Our Organized Crime and Drug Enforcement Task Forces have also indicted more than 6,500 defendants in opioid-related investigations and forfeited more than $150 million in the past year.

From 2016 to 2017 our fentanyl prosecutions more than tripled. And in the past month and a half, the DEA has seized nearly 200 pounds of suspected fentanyl in cases from Detroit to New York to Boston. Fentanyl is 50 times as powerful as heroin, and it’s the killer drug. It’s got to be a priority for all of us. All of this hard work is paying off. There are some good signs in the preliminary data that the increases in murder and violent crime appear to have slowed and violent crime may have actually begun to decrease. Publicly available data for the rest of the year suggest further progress.

May 8, 2018 in Criminal justice in the Trump Administration, National and State Crime Data, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (7)

Saturday, May 05, 2018

"A Rational Approach to the Role of Publicity and Condemnation in the Sentencing of Offenders"

The title of this post is the title of this interesting article recently posted to SSRN authored by Mirko Bagaric and Peter Isham. Here is the abstract:

The punishment imposed on criminal offenders by courts often does not exhaust the hardship they experience.  There are a number of collateral forms of punishment that many offenders are subjected to as a result of their offending.  Some of these deprivations are institutional, such as being dismissed from employment or being disqualified to vote. Other hardships are less predictable and harder to quantify.  Public scorn, often directed towards high profile offenders, such as O.J. Simpson and Anthony Weiner, can be the cause of considerable additional suffering to offenders.  It can engender feelings of shame, embarrassment and humiliation.  At the same time, the high profile nature of the cases provides courts with an opportunity to demonstrate to the wider community the consequences of violating the law.

There is no established jurisprudence regarding the role that public criticism of offenders should have in sentencing decisions.  Some courts take the view that it should increase the penalty imposed on high profile offenders in order to deter others from committing similar offences.  By contrast, it has also been held that public condemnation should reduce penalties because the offender has already suffered as a result of the public condemnation.  On other occasions, courts have held public condemnation is irrelevant to sentencing.  The issue is increasingly important because the internet and social media have massively increased the amount of publicity that many criminal offenders receive. Simultaneously, this is an under-researched area of the law.

In this Article, we develop a coherent jurisprudential and evidence-based solution to the manner in which public opprobrium should be dealt with in sentencing decisions.  We argue that sentencing courts should neither increase nor decrease penalties in circumstances where cases have attracted wide-ranging media attention.  The hardship stemming from public condemnation is impossible to quantify and in fact causes no tangible suffering to some offenders.  Thus, the extent of publicity that an offender receives for committing a crime should be an irrelevant consideration with respect to the choice of punishment. In proposing this reform, we carefully analyze the jurisprudence in the United States.  We also consider the position in Australia, where the issue has been considered at some length.

May 5, 2018 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Thursday, May 03, 2018

"The Opioid Crisis and Federal Criminal Prosecution"

The title of this post is the title of this timely new article recently posted to SSRN authored by Rachel Rothberg and Kate Stith. Here are parts of its introduction:

An opioid crisis has swept the United States, ravaging communities across the country. In this Article we examine how federal law enforcement has responded to the crisis, both nationally and in a variety of locales.  We focus in depth, however, on federal investigators and prosecutors in the District of Connecticut, where the epidemic has hit hard....

What role can criminal law — and those who enforce it — play in combatting the opioid crisis?  The Connecticut U.S. Attorney’s Office’s shift in policy represents just one of many federal law enforcement reactions to alarming increases in opioid abuse and overdose deaths.  As opioid users’ tolerance increases and their access to prescription pills dwindle, they often transition to cheaper heroin, and then again to the more powerful synthetic opioids — sometimes unwittingly.  In general, law enforcement has struggled to keep up with the epidemic and the opioid market’s evolving characteristics.

In Part II of this Article we provide an overview of the nationwide, interagency efforts initiated by the Department of Justice in Washington, D.C.  In Part III, we briefly survey a number of strategies pursued by various U.S. Attorney’s Offices.  There are ninety-three U.S. Attorney’s Offices in the United States, and although all of them are part of the Department of Justice, each one is semi-autonomous in deciding which cases to investigate and prosecute.

Then, in Part IV, we narrow our focus to the federal prosecutorial efforts of the U.S. Attorney’s Office for the District of Connecticut.  We focus on the Office’s two main strategies— (1) charging the supplier of an illicit substance resulting in death with the crime of drug distribution; and (2) educating the community, particularly high-school students, about opioid usage — and discuss whether they have implications for the national role of federal law enforcement.  Lastly, in Part V, we address what more might be needed from federal law enforcement going forward to protect communities nationwide from the devastation wrought by opioid proliferation.

May 3, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, May 02, 2018

"Revisiting the Role of Federal Prosecutors in Times of Mass Imprisonment"

The title of this post is the title of this recent article authored by Nora Demleitner recently posted to SSRN. Here is the abstract:

The article highlights how the Department of Justice and its leadership can change even long-standing prosecutorial orthodoxy and prevailing approaches when they set out a clear mission and empower and guide prosecutors in implementing it.  To decrease the number of federal prisoners, the Obama administration adopted a tri-partite strategy that included prevention and re-entry, co-equal with prosecutions.  Yet the collection and analysis of relevant data continued to fall short which privileged old practices that emphasized the number of convictions and prison years imposed.

A substantial investment in data is needed to support and reinforce a shift away from prison terms.  Perhaps most importantly, the article questions the role federal prosecutors should play at a time prisons remain overcrowded despite a historically low crime rate.  The criminal justice paradigm may not be an appropriate avenue for addressing social problems.

May 2, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Saturday, April 28, 2018

"Punishment and Human Dignity: Sentencing Principles for Twenty-First Century America"

The title of this post is the title of this paper by Michael Tonry recently posted to SSRN.  Here is its abstract:

A new conception of justice in punishment is needed that is premised on respect for offenders’ human dignity. It needs to acknowledge retributive and utilitarian values and incorporate independently important values of fairness and equal treatment.  Punishment principles, policies, and practices lined up nicely in mid-twentieth century America. Utilitarian principles implied a primary goal of crime prevention through rehabilitation and avoidance of unnecessary suffering by offenders.  Judges and parole boards were empowered to tailor decisions to fit offenders’ circumstances and interests.  Corrections officials sought to address rehabilitative needs and facilitate achievement of successful, law-abiding lives.  The system often did not work as it should, but its ideals, aspirations, and aims were clear.  In our time, there are no commonly shared principles, sentencing laws and practices are unprecedentedly rigid and severe, judges and parole boards often lack authority to make sensible or just decisions, corrections officials are expected simultaneously to act as police officers, actuaries, and social workers, and injustice is ubiquitous.

April 28, 2018 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (5)

Tuesday, April 24, 2018

"All Bathwater, No Baby: Expressive Theories of Punishment and the Death Penalty"

The title of this post is the title of this notable new paper authored by Susan Bandes now available via SSRN. Here is its abstract:

In Courting Death: The Supreme Court and Capital Punishment, Carol Steiker and Jordan Steiker offer a richly textured and fair-minded account of the fraught relationship between capital punishment and the United States Supreme Court.  As the book convincingly illustrates, capital punishment doctrine often serves as little more than window dressing, providing a false sense of coherence and legal legitimacy to prop up a regime that is both arbitrary and discriminatory. Although the book is clear-eyed and appropriately unsentimental, the authors hold out hope that a principled capital jurisprudence is possible.  They seek to distinguish the factors that ought to animate the Court’s jurisprudence from those that are illegitimate.

This review of Courting Death proceeds in three parts.  Part I describes the book’s main arguments. Part II explores the limits of employing legal doctrinal tools to shed light on the forces that shape and sustain capital punishment in the United States. In particular, it explores the implicit question underlying the Steikers’ critique: is there a path toward a principled capital jurisprudence?  Part III focuses on so-called “expressive” theories of punishment, which emphasize the symbolic, communicative importance of the death penalty. It argues that expressive punishment theory has become a grab bag of poorly differentiated concepts that too often obfuscate rather than illuminate the death penalty debate.  It then returns to the topic of Part II, exploring the difficulty of distinguishing “off-limits” or “extra-legal” political and emotional influences from appropriate legal influences on the death penalty debate.  The review concludes that once all these arguably illegitimate influences are stripped away, a coherent, principled doctrinal capital punishment doctrine is not possible.

April 24, 2018 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Saturday, April 21, 2018

"Techno-Policing"

The title of this post is the title of this interesting new piece authored by I. Bennett Capers now available via SSRN.  Here is the abstract:

In July 2017, the New York Times reported that Three Square Market, a Wisconsin based technology company, was asking its employees to have a microchip injected between their thumb and index finger.  More than half of the employees consented to the implant, which would function as a type of swipe card.  As one employee put it, “In the next five to 10 years, this is going to be something that isn’t scoffed at so much, or is more normal.  So I like to jump on the bandwagon with these kind of things early, just to say that I have it.”

What might the implanting of microchips portend for criminal justice issues?  Might we one day implant chips in convicted felons, or arrestees?  Or if not all arrestees, perhaps those released on bail?  Indeed, at a time when many scholars and legislators are rethinking bail, might the availability of removable chips strengthen the argument against pretrial detention, and against money bail?  And what are the implications for sentencing, especially algorithmic risk-based sentencing?  Or perhaps a closer fit, what are the implications for releasing defendants who have completed their sentences and are eligible for parole? 

At a time when the Court has given its blessing to civil commitment for sex offenders, how might the availability of microchips to monitor the coming and going of individuals — like a wireless fence — change the analysis?  Finally, and perhaps most central to this essay, what are the possibilities when we couple the availability of microchips with access to Big Data?  This short essay, written for the “Big Data and Policing” symposium issue of the Ohio State Journal of Criminal Law, begins a conversation about these and other questions.

April 21, 2018 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (0)

Friday, April 13, 2018

US District Judge explains why he believes "the scales of justice tip in favor of rejecting plea bargains"

A helpful reader made sure I saw a remarkable new opinion from US District Judge Joseph Goodwin of the US District Court for the Southern District of West Virginia in US v. Stevenson, No. 2:17-cr-00047 (S.D. W. Va. April 12, 2018) (available here). The starts of the 19-page opinion should readily reveal why criminal justice fans why this opinion is today's must-read:

On June 26, 2017, I rejected the proffered plea agreement in United States v. Charles York Walker, Jr. after determining that it was not in the public interest.  On October 10, 2017, I rejected the proffered plea agreement in United States v. Antoine Dericus Wilmore after determining that it also was not in the public interest.  In both opinions, I stated that it is the court’s function to prevent the transfer of criminal adjudications from the public arena to the prosecutor’s office for the purpose of expediency at the price of confidence in and effectiveness of the criminal justice system.

I have further reflected upon the near-total substitution of plea bargaining for the system of justice created by our nation’s Founders, and I FIND that I should give great weight to the people’s interest in participating in their criminal justice system when considering whether to accept or reject a proffered plea bargain in a particular case.  I FIND that the scales of justice tip in favor of rejecting plea bargains unless I am presented with a counterbalance of case-specific factors sufficiently compelling to overcome the people’s interest in participating in the criminal justice system.

Therefore, in each case, I will consider the case-specific factors presented to me and weigh those competing factors against the people’s participatory interest and then determine whether to accept or reject the plea bargain. Because I FIND that the presented justifications for the bargain in this case are insufficient to balance the people’s interest in participating in the criminal justice system, I REJECT the proffered plea agreement.

Wowsa! #morejurytrials?

April 13, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (16)

Sunday, April 08, 2018

George Will commentary assails felon disenfranchisement in Florida

I am very pleased to see this effective commentary by George Will under the headline "There’s no good reason to stop felons from voting." I recommend the short piece in full, and here are parts that struck me as especially effective:

Intelligent and informed people of good will can strenuously disagree about the wisdom of policies that have produced mass incarceration. What is, however, indisputable is that this phenomenon creates an enormous problem of facilitating the reentry into society of released prisoners who were not improved by the experience of incarceration and who face discouraging impediments to employment and other facets of social normality.  In 14 states and the District , released felons automatically recover their civil rights.

Recidivism among Florida’s released felons has been approximately 30 percent for the five years 2011-2015.  Of the 1,952 people whose civil rights were restored, five committed new offenses, an average recidivism rate of 0.4 percent.  This sample is skewed by self-selection — overrepresentation of those who had the financial resources and tenacity to navigate the complex restoration process that each year serves a few hundred of the 1.6 million.  Still, the recidivism numbers are suggestive.

What compelling government interest is served by felon disenfranchisement? Enhanced public safety?  How?  Is it to fine-tune the quality of the electorate?  This is not a legitimate government objective for elected officials to pursue.  A felony conviction is an indelible stain: What intelligent purpose is served by reminding felons — who really do not require reminding — of their past, and by advertising it to their community?  The rule of law requires punishments, but it is not served by punishments that never end and that perpetuate a social stigma and a sense of never fully reentering the community.

April 8, 2018 in Collateral consequences, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (4)

Thursday, April 05, 2018

"Cast into Doubt: Free Will and the Justification for Punishment"

The title of this post is the title of this interesting-looking new paper available via SSRN authored by Stephen Koppel, Mark Robert Fondacaro and Chongmin Na.  Here is the abstract:

Criminal punishment is justified on either retributive or consequential grounds.  The retributive justification is premised on a commonsense view of free will: offenders can freely choose to commit crimes and so deserve blame for their actions.  The consequentialist justification, in contrast, is not necessarily premised on the free will concept, but rather justifies punishment when it is the most cost-effective way of preventing crime.  Science elucidating the mechanistic causes of human behavior has thrown the notion of free will into doubt, leading some to predict a shift in public support away from retribution towards consequentialism.  Past research shows that free will doubt weakens support for retribution, but less is known about its effects on support for consequentialism, or about whether these effects differ across the crime severity spectrum.

In this study, we explore the effects of free will doubt on support for retribution and consequentialism in response to three different categories of crime — drug crime, property crime, and violent crime — which have been shown to evoke varying levels of emotion.  We find clear inconsistencies across the crime spectrum.  For high affect crime, free will doubt weakens support for retribution via blame, and increases support for consequentialism.  For low affect crime, free will doubt weakens support for retribution to an even greater extent, yet also decreases support for consequentialism via blame. These findings suggest that, as science reveals the mechanistic causes of criminal behavior, support for criminal punishment will decrease, especially with respect to less serious crimes.

April 5, 2018 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, April 04, 2018

"The Expansion of Child Pornography Law"

The title of this post is the title of this new essay authored by Carissa Byrne Hessick now available via SSRN.  Here is the abstract:

This symposium essay identifies two dramatic expansions of child pornography law: Prosecutions for possessing images of children who are clothed and not engaged in any sexual activity, and prosecutions for possessing smaller portions of artistic and non-pornographic images.  These prosecutions have expanded the definition of the term child pornography well beyond its initial meaning.  What is more, they signal that child pornography laws are being used to punish people not necessarily because of the nature of the picture they possess, but rather because of conclusions that those individuals are sexually attracted to children.  If law enforcement concludes that a person finds an image of a child to be sexually arousing, then these laws can subject that individual to punishment, even though the image would have been perfectly innocuous had it been possessed by someone else.

April 4, 2018 in Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Thursday, March 29, 2018

"The Excessive Fines Clause: Challenging the Modern Debtors' Prison"

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

In recent years, the use of economic sanctions-statutory fines, surcharges, administrative fees, and restitution-has exploded in courts across the country.  Economic sanctions are imposed for violations as minor as jaywalking and as serious as homicide, and can range from a few dollars to millions.  When a person is unable to immediately pay off economic sanctions, "poverty penalties" are often imposed, including interest and collections fees and probation.  Failure to pay economic sanctions can result in serious consequences, including prohibitions on obtaining or suspensions of driver's and occupational licenses, restrictions on public benefits, and even incarceration.  Even when poverty penalties are not employed, an inability to pay off criminal debt means that the punishment imposed, even for very minor offenses, can effectively be perpetual. Desperate to avoid these repercussions, people go to extremes to pay. In an alarming number of cases people report having to forego basic necessities like food, housing, hygiene, or medicine, in order to pay what little they can, even if just a few dollars at a time.  These and countless other stories of people trapped in persistent debt are becoming ubiquitous, and have raised the specter that current practices amount to modern day debtors' prisons.

Constitutional challenges to such practices have primarily focused on the narrow window of the post-sentencing collections context, relying on a series of Fourteenth Amendment cases prohibiting the automatic conversion of economic sanctions to incarceration where a debtor has no meaningful ability to pay.  While these challenges can provide an important post hoc protection against the use of incarceration as a penalty for the failure to pay, they do not address the financial instability exacerbated by and ongoing threat of incarceration raised by debt from unmanageable economic sanctions.

A separate, albeit underdeveloped, constitutional provision that may be better suited to addressing the debtors' prison crisis lies in the Eighth Amendment's Excessive Fines Clause, which provides protection at sentencing.  To date, the United States Supreme Court has only determined that criminal and civil forfeitures constitute fines.  This Article examines the key concerns underlying those determinations, explicating the Court's interest in treating economic sanctions as fines where they are used by the government to punish-evidenced by a link to prohibited conduct or treatment of economic sanctions like other recognized forms of punishment-as well as the Court's desire that the Clause serve as a bulwark against the risk that the prosecutorial power will be abused due to the revenue generating capacity of economic sanctions.  Applying these core concerns supports the conclusion that common forms of economic sanction (including statutory fines, surcharges, administrative fees, and restitution) constitute fines for purposes of the Clause.

In addition, this Article examines the meaning of excessiveness, arguing that one's ability to pay is relevant to the question of whether a fine is constitutional.  The Court has adopted the Cruel and Unusual Punishments Clause's gross disproportionality test for measuring excessiveness.  Attending to financial circumstances in the excessiveness inquiry is in harmony with key principles animating the proportionality doctrine: equality in sentencing, comparative proportionality between offenses of different seriousness, the expressive value of punishment, concern for the criminogenic effect of and other social harms caused by punishment, and the prohibition on punishments that unreasonably infringe on human dignity.

March 29, 2018 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Judge Jed Rakoff sentences rapper DMX to one year in federal prison for tax fraud

US District Court Judge Jed Rakoff has long been a vocal advocate against mass incarceration and other problems he seeing is the operation of the federal criminal justice system. But that view did not preclude him from thinking he needed to send a notable white-collar criminal to federal prison yesterday as reported in this local article (which provides a nice short review of the parties' sentencing arguments):

Embattled rapper DMX was sentenced Wednesday to one year in prison for tax fraud — but insisted he wasn’t “like a criminal in a comic book” trying to scheme against the government.  DMX, real name Earl Simmons, admitted in November to evading $1.7 million in taxes. He was also given three years of supervised release.

The 47-year-old performer, whose top songs include “Party Up (Up in Here),” stood accused of hiding money from the IRS from 2010 to 2016 — largely by maintaining a “cash lifestyle.” “I knew that taxes needed to be paid,” Simmons said shortly before Manhattan Federal Judge Jed Rakoff handed down his sentence. “I hired people but I didn’t follow up. I guess I really didn’t put too much concern into it.

“I never went to the level of tax evasion where I’d sit down and plot . . . like a criminal in a comic book,” said Simmons, who grew teary at points during the proceeding.

Prosecutors had pushed for Rakoff to hit Simmons with a sentence ranging from four years and nine months up to five years in prison. In their sentencing papers, prosecutors urged Rakoff to "use this sentencing to send the message to this defendant and others that star power does not entitle someone to a free pass, and individuals cannot shirk the duty to pay their fair share of taxes."

Simmons' lawyers, Murray and Stacey Richman, asked Rakoff for a sentence of in-patient rehab. With treatment — and strict supervision — Simmons could keep performing, allowing him to repay his whopping tax debt, they insisted. They also floated the idea Rakoff could appoint a trustee who would oversee Simmons' business dealings — making sure the tax man got paid. They maintained that Simmons' traumatic and impoverished upbringing led him astray as an adult, including toward addiction and bad financial decisions — but that he has a talent to "make beauty out of ugliness."

The Richmans played the music video for Simmons' 1998 song "Slippin'", claiming lyrics such as "If I'm strong enough I'll live long enough to see my kids/Doing something more constructive with their time than bids" indicate his search for redemption through art. "He is the American dream, and sometimes the American dream takes you to court," Stacey Richman said. "He has been able to raise himself from the ghetto."

Rakoff sympathized with Simmons, saying he was another example of how "the sins of the parents are visited upon their children" — but felt prison was necessary to deter would-be tax fraudsters....

Other performers have done time for tax raps.

Former Fugees singer Lauryn Hill got a three-month sentence in federal lockup for not paying taxes on $1.5 million in income from 2005 to 2007.

Fat Joe, whose legal name is Joseph Antonio Cartagena, got four months in federal prison after he didn't file tax returns on more than $3 million in income.

Ja Rule, who is legally named Jeffrey Atkins, received a 28-month sentence for not filing tax returns that ran concurrently with a two-year weapons sentence, according to reports.

March 29, 2018 in Booker in district courts, Celebrity sentencings, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (4)