Wednesday, March 25, 2015
You be the judge: what federal sentence for modern sheriff playing Robin Hood?
In the legend of Robin Hood, the Sheriff of Nottingham is the tale's primary villain. But this sentencing story out of South Carolina raises the question of what federal sentence ought to be given to a local sheriff who was committing fraud as a kind of modern Robin Hood. The press report is headlined "Convicted Williamsburg sheriff asks for sentencing leniency," and here are the details:
The convicted former sheriff of Williamsburg County should be sentenced to less than the three years in prison recommended by federal officials because he succeeded despite a troubled upbringing and is being treated for a painkiller addiction, his lawyer said.
Ex-sheriff Michael Johnson faces a judge Wednesday to learn his fate after a federal jury convicted him in September of mail fraud. Prosecutors said Johnson created hundreds of fake police reports for a friend who ran a credit repair business so people could claim their identities were stolen and get out of credit card debt. The sentencing recommendation for Johnson is 30 months to 37 months in prison, according to court papers filed this week.
Johnson's attorney said that is too harsh for a man with no criminal record who cooperated with authorities. Johnson's request asks for a lesser sentence, but is not specific. Johnson has suffered from depression and anxiety the past four years. He also has migraines, high blood pressure and insomnia, lawyer Deborah Barber said in court papers.
The former sheriff also was raised in a broken home, saw his mother abused by a boyfriend and left at age 17 to relieve her of financial burden, Barber said. "He resided in a poverty-stricken area in Kingstree, South Carolina, with the family not having enough money to adequately survive," Barber wrote....
Johnson joined the Williamsburg County Sheriff's Office in 1997, two years after graduating high school and rose to chief deputy, becoming sheriff in April 2010 when the former sheriff, Kelvin Washington, was named U.S. Marshal for South Carolina.
He is one of nine sheriffs in South Carolina's 46 counties to be charged or investigated while in office since 2010. Seven have pleaded guilty or been convicted, and another died while under investigation. Only two of those sheriffs so far have been sentenced to prison.
Intriguingly, this long earlier article explains some of the details of the fraud, and it suggests that sheriff Johnson may not have made any money from the scheme designed to help people to (falsely) improve their credit rating. I am disinclined to assert that sheriff Johnson is as noble or heroic as Robin Hood, but it does seem like his fraud involved trying to help some folks down on their luck by pulling a fast one on the (big bad monarchy?) credit companies. Given that the federal sentencing guidelines still call for a prison term of at least 2.5 years, I am now wondering what the real Robin Hood might have been facing in a federal fraud guideline range if he were facing sentencing today.
March 25, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack
Tuesday, March 24, 2015
Should prison terms end once criminals seem "too old" to recidivate?
The question in the title of this post is prompted by this intriguing recent New York Times piece headlined "Too Old to Commit Crime?". Here are excerpts:
Dzhokar TsarnaevV is facing the death penalty or life in prison for the Boston Marathon bombing. But what if, instead, the maximum prison sentence were just 21 years? That was the sentence that Anders Behring Breivik received in 2012 after killing 77 people, most of them teenagers attending a summer program, in Norway in 2011. It was the harshest sentence available. That doesn’t mean Mr. Breivik will ever walk free. Judges will be able to sentence him to an unlimited number of fiveyear extensions if he is still deemed a risk to the public in 2033, when he is 53.
The idea of a 21-year sentence for mass murder and terrorism may seem radically lenient in the United States, where life without parole is often presented as a humane alternative to the death penalty. Yet in testimony last week to a congressional task force on reforming the federal prison system, Marc Mauer, the director of the Sentencing Project, an advocacy group, suggested exactly that approach. He made the case for a 20-year cap on federal prison terms with an option for parole boards or judges to add more time if necessary to protect the public. Such a policy would “control costs” in a system that is now 40 percent over capacity, Mr. Mauer told the task force, and would “bring the United States more in line with other industrialized nations.”
This proposal has little chance of becoming law. But a compelling case can be made for it nonetheless. Research by American social scientists shows that all but the most exceptional criminals, even violent ones, mature out of lawbreaking before middle age, meaning that long sentences do little to prevent crime....
Some crimes are simply too physically taxing for an older person to commit. Regardless of why offenders age out of trouble, American sentencing practices are out of whack with the research on criminal careers. Between 1981 and 2010, the average time served for homicide and nonnegligent manslaughter increased threefold, to almost 17 years from five years. Over 10 percent of federal and state inmates, nearly 160,000 people, are serving a life sentence, 10,000 of them convicted of nonviolent offenses. Since 1990, the prison population over the age of 55 has increased by 550 percent, to 144,500 inmates. In part because of this aging population, the state and federal prison systems now spend some $4 billion annually on health care.... [A] sentence that outlasts an offender’s desire or ability to break the law is a drain on taxpayers, with little upside in protecting public safety or improving an inmate’s chances for success after release. Mr. Mauer’s proposal for a 20-year sentence cap, applied retroactively, would free 15 percent of federal prisoners — some 30,000, except for those few whom judges or parole boards might deem unfit to re-enter society.
This is much more aggressive than the Smarter Sentencing Act, a bipartisan proposal in Congress which would lower mandatory minimum sentences only for nonviolent drug crimes. Both the House and Senate versions of the bill keep mandatory minimum sentences of 20 or 25 years for third-time drug offenders, and most of the bill’s provisions would not benefit current inmates. Of course, for many Americans the prison system is not only about preventing crime by getting criminals off the street, but also about punishment. Long sentences send a clear message that certain acts are unacceptable. Some conservatives who support sentencing reform say that Mr. Mauer’s proposal goes too far, offering a one-size-fits-all leniency to even violent offenders.
Mr. Mauer responds that given the immense scale and cost of incarceration, “modest reforms” would be insufficient. “How much punishment is enough?” he asked. “What are we trying to accomplish, and where does redemption come into the picture?”
March 24, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
Monday, March 23, 2015
"A Commentary on Statistical Assessment of Violence Recidivism Risk"
The title of this post is the title of this timely paper by Peter Imrey and A. Philip Dawid now available via SSRN. The piece, as evidenced simply by the abstract, seems quite technical. But it seems that the piece is making an especially important technical point. Here is the abstract:
Increasing integration and availability of data on large groups of persons has been accompanied by proliferation of statistical and other algorithmic prediction tools in banking, insurance, marketing, medicine, and other fields (see e.g., Steyerberg (2009a;b)). Controversy may ensue when such tools are introduced to fields traditionally reliant on individual clinical evaluations. Such controversy has arisen about "actuarial" assessments of violence recidivism risk, i.e., the probability that someone found to have committed a violent act will commit another during a specified period.
Recently Hart et al. (2007a) and subsequent papers from these authors in several reputable journals have claimed to demonstrate that statistical assessments of such risks are inherently too imprecise to be useful, using arguments that would seem to apply to statistical risk prediction quite broadly. This commentary examines these arguments from a technical statistical perspective, and finds them seriously mistaken in many particulars. They should play no role in reasoned discussions of violence recidivism risk assessment.
March 23, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0) | TrackBack
Sunday, March 22, 2015
Might a President Ted Cruz champion "common sense" mandatory minimum sentencing reform?
The question in the title of this post is prompted by this political news from Houston: "Ted Cruz to announce presidential bid Monday." Here are highlights about Senator Cruz's plans:
Senior advisers say Cruz will run as an unabashed conservative eager to mobilize like-minded voters who cannot stomach the choice of the "mushy middle" that he has ridiculed on the stump over the past two months in Iowa, New Hampshire and South Carolina. "Ted is exactly where most Republican voters are," said Mike Needham, who heads the conservative advocacy group Heritage Action for America. "Most people go to Washington and get co-opted. And Ted clearly is somebody that hasn't been."
For various reasons, I am pleased that Senator Cruz is the first GOP candidate to officially throw his hat into the ring and that he will be running as a "unabashed conservative." As explained in this prior post, this unabashed conservative has stated that he believes a commitment to "fairness" and "justice" and "common sense" calls for passage of the Smarter Sentencing Act and other federal reforms which would help avoid "a world of Le Miserables, where a young man finds his entire future taken away by excessive mandatory minimums.
A few recent and older posts on the modern "conservative politics" of federal sentencing reform:
- Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?
- A positive perspective on possible prison reform emerging from Congress
- "Hey, Grandpa: End Mandatory Minimums!"
- Is major federal sentencing reform possible now that Republicans have full control of Congress?
- Shouldn't true fiscal conservatives question a federal program with 600% recent spending growth?
- "Criminal Sentencing Reform: A Conversation among Conservatives"
- Spotlighting that nearly all GOP Prez hopefuls are talking up sentencing reform
Pope Francis categorically condemns death penalty as "inadmissible" in today's world
As reported in this piece from Vatican Radio, which describes itself the "voice of the Pope and the Church in dialogue with the World," Pope Francis spoke about capital punishment during a meeting with members of an international anti-death penalty group. Here are details:
Capital punishment is cruel, inhuman and an offense to the dignity of human life. In today's world, the death penalty is "inadmissible, however serious the crime" that has been committed. That was Pope Francis’ unequivocal message to members of the International Commission against the death penalty who met with him on Friday morning in the Vatican.
In a lengthy letter written in Spanish and addressed to the president of the International Commission against the death penalty, Pope Francis thanks those who work tirelessly for a universal moratorium, with the goal of abolishing the use of capital punishment in countries right across the globe.
Pope Francis makes clear that justice can never be done by killing another human being and he stresses there can be no humane way of carrying out a death sentence. For Christians, he says, all life is sacred because every one of us is created by God, who does not want to punish one murder with another, but rather wishes to see the murderer repent. Even murderers, he went on, do not lose their human dignity and God himself is the guarantor.
Capital punishment, Pope Francis says, is the opposite of divine mercy, which should be the model for our man-made legal systems. Death sentences, he insists, imply cruel and degrading treatment, as well as the torturous anguish of a lengthy waiting period before the execution, which often leads to sickness or insanity.
The Pope ... makes quite clear that the use of capital punishment signifies “a failure” on the part of any State. However serious the crime, he says, an execution “does not bring justice to the victims, but rather encourages revenge” and denies any hope of repentence or reparation for the crime that has been committed.
Friday, March 20, 2015
"Victim's wife: Keep me out of death penalty fight"
The title of this post is the headline of this notable new article out of Philadelphia which highlights how victims often can and will get victimized again by the political debates over the death penalty. Here is how the piece starts:
Since Gov. Wolf declared his moratorium on the death penalty last month, proponents of capital punishment have rallied around one case to push their cause - the scuttled execution of Terrance Williams, a Philadelphia man sentenced to die in 1986 for the beating death of a Germantown church volunteer.
But on Thursday, the widow of Williams' victim had a message for critics of the governor's action: Leave me out of it. In a publicly circulated letter, Mamie Norwood, whose husband, Amos, was killed by Williams in 1984, accused State Rep. Mike Vereb (R., Montgomery) and Philadelphia District Attorney Seth Williams of using her husband's slaying for political gain.
"You have never spoken to me and do not speak for me," Norwood wrote, adding that she had forgiven Terrance Williams long ago and did not want to see him put to death. She added: "Please don't use me . . . to get your name in the news. You should be truly ashamed of yourselves."
Norwood's letter was distributed by a group of Terrance Williams' supporters who run the website www.terrywilliamsclemency.com.
Norwood's letter is available at this link.
Thursday, March 19, 2015
Making the effective case for graduated reentry to reduce incarceration and recidivism
This notable new commentary at Vox, headlined "We don’t need to keep criminals in prison to punish them" and authored by Mark A.R. Kleiman, Angela Hawken and Ross Halperin, is a must-read for would-be criminal justice reformers. Th piece is lengthy (with lots of helpful links), and here are excerpts to whet the appetite:
While it lasts, prison is horrible for the prisoner and expensive for the state. And things often don't get better when it ends: of the people released from prison today, about 60 percent will be back inside within three years.
The transition from prison to the "free world" can be very tough, both for the offender and for the neighborhood he returns to. In the month after getting out, a person released from prison has about a dozen times the mortality rate of people of the same age, race, and sex in the same neighborhood, with the leading causes of death among former inmates being drug overdose, cardiovascular disease, homicide, and suicide.
This shouldn't be a surprise. Consider someone whose conduct earned him (much more rarely "her") a prison cell. Typically, that person went into prison with poor impulse control, weak if any attachment to the legal labor market, few marketable skills, and subpar work habits. More often than not, he's returning to a high-crime neighborhood. Many of his friends on the outside are also criminally active. Maybe, if he's lucky and has been diligent, he's learned something useful in prison. Perhaps he's even picked up a GED. But he hasn't learned much about how to manage himself in freedom because he hasn't had any freedom in the recent past. And he hasn't learned to provide for himself because he's been fed, clothed, and housed at public expense.
Now let him out with $40 in his pocket, sketchy if any identification documents, and no enrollment for basic income support, housing, or health insurance. Even if he has family or friends who can tide him over during the immediate transition, his chances of finding legitimate work in a hurry aren't very good. If he's not working, he has lots of free time to get into trouble and no legal way of supporting himself....
For the transition from prison to life outside to be successful, it needs to be gradual. If someone needed to be locked up yesterday, he shouldn't be completely at liberty today. And he shouldn't be asked to go from utter dependency to total self-sufficiency in one flying leap. He needs both more control and more support. Neither alone is likely to do the job.
Of course, both control and support cost money. But so does prison. The trick is to start the re-entry process before what would otherwise have been the release date, so the money you spend in the community is balanced by the money you're not spending on a cell. The average cost of holding a prisoner comes to about $2,600 per month. At the same time, even very intrusive supervision leaves a released offender freer than he would have been on the inside. So even a program that looks expensive and intrusive compared with ordinary re-entry or parole is cheap and liberating compared with a cellblock....
There's no way to guess in advance how many prisoners would succeed in making the transition: for all the statistical work on risk assessment, looking into the soul remains hard, and looking into the future impossible. It's not even obvious whether the success rate would be higher with men or with women, with younger or older offenders, with those convicted of nonviolent crimes or of violent ones. But there's good reason to think the success rate would be higher for graduated release than for the current approach, and that the costs of the program could be more than recouped from the savings in reduced incarceration, now and in the future. But budget savings aren't the main goal: the greatest benefits would flow to the offenders, to their families, to their neighborhoods, and to those who otherwise would have been the victims of their future crimes.
Can we really get back to a civilized level of incarceration while continuing to push crime rates down? We can't know until we try. Graduated re-entry might work. That's more than can be said for any other proposal now on the table. If we find a version of it that works somewhere, expand it there and try it elsewhere. If not, go back to the drawing board. But sticking with the existing system, and accepting its disastrous results, is not a reasonable choice.
March 19, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (7) | TrackBack
Wednesday, March 18, 2015
Death penalty symbolism and Robert Durst
Everyone interested in pop culture criminal law is now busy talking about the seeming confession of infamous real estate figure Robert Durst during the final episode of the HBO documentary series "The Jinx: The Life and Deaths of Robert Durst." Though I find interesting the debate over the potential meaning and use of Durst's statement that he "killed them all," as a sentencing fan I find even more notable this headline about these headlines about case:
- From NPR: "Robert Durst Charged With Murder, May Face Death Penalty"
- From Reuters: "Satisfaction over prospect of accused US killer Durst facing justice"
Because Durst is aged 71 and California has not executed anyone in nearly a decade, the odds that Durst would be sentenced to death and executed before he dies of natural causes are about the same as the odds that a 16 seed will win the NCAA basketball tournament. But, as in true in so many cases, here a death penalty penalty charge is not really about seeks a true punishment but rather about symbolically sending a message that Durst is among the worst of the worst criminals.
I am always ambivalent about the value of state actors spending lots of time, money and energy on seeking a form of punishment that will never actually be carried out. But the Durst case serves as a great example of why the death penalty (and sometimes other punishments like Bernie Madoff getting 150 years in prison) is often much more about criminal justice symbolism than punishment reality.
"Law & Tactics for a Market-Reality Narcotics Policy"
The title of this post is the title of this notable new article by Mark William Osler now available via SSRN. Here is the abstract:
The War on Drugs seems to be ending, leading to a crucial question: What comes next? Legalization of narcotics (marijuana aside) is unlikely, and the pursuit of broad incarceration to create deterrence or incapacitation has been largely disavowed. However, drug use continues to be a profound social problem that must be confronted.
This article argues for the aggressive use of asset forfeiture to capture cash flow to core sources in order to systemically disrupt narcotics networks. Importantly, such a project would steer police efforts away from capturing people, drugs, or the profits retained by drug dealers and instead target the lifeblood of the narcotics business, which is proceeds flowing back to mass producers, importers, and major wholesalers of drugs.
This tactic would address the continuing narcotics problem without mass incarceration or the problems associated with seizing small amounts of profit through forfeitures. Fortunately, the necessary tools are already embedded in existing federal statutes; all that is left to do is to use them wisely in a new and more effective way.
March 18, 2015 in Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack
Monday, March 16, 2015
New York Times editorial assails death decided "by a single vote" in Alabama and Florida
This new New York Times editorial, headlined "Death Sentences, With or Without a Jury," uses the recent Supreme Court cert grant in Hurst to assail a capital punishment system it views as "warped by injustice and absurdity." Here are excerpts:
In Florida and Alabama, death row inmates are challenging perverse state laws on the jury’s role in capital trials. The Supreme Court, which has been intervening more often in death penalty cases, last week agreed to review the Florida law.
In death penalty trials, juries that reach a guilty verdict are usually required in the trial’s subsequent penalty phase to make factual findings, such as whether the crime was especially heinous, that will determine whether the defendant is sentenced to death.
But Florida lets the judge make these findings, and does not require that the jury be unanimous in voting for a death sentence. After Timothy Lee Hurst was found guilty of a 1998 murder of a coworker in Pensacola, his jury split 7 to 5 in favor of executing him, with no record of whether the majority even agreed on the reason. (Mr. Hurst claims he is intellectually disabled and thus ineligible to be executed.) In other words, Mr. Hurst was effectively condemned by a single vote by an unidentified juror.
Alabama also allows death to be decided by a single vote: that of the judge, who may override a jury verdict of life in prison and replace it with a death sentence, relegating the jury’s status to that of an advisory body. The Supreme Court declined to hear a challenge to the Alabama law in 2013, prompting a sharp dissent from Justice Sonia Sotomayor. She concluded that the state’s judges, who are elected — and who have unilaterally imposed death sentences 101 times after the jury voted for life — “appear to have succumbed to electoral pressures.”
The Alabama law, Justice Sotomayor wrote, undermines “the sanctity of the jury’s role in our system of criminal justice,” and very likely violates the court’s own rulings requiring juries, not judges, to find any fact that would increase a defendant’s sentence. Two new challenges to that law are before the court — one involving a death sentence imposed by a judge after a jury voted 12 to 0 for life — but it hasn’t decided whether to take them up.
This disregard for the jury’s role is all the more offensive given the Supreme Court’s reliance on jury verdicts as a key measure of America’s “evolving standards of decency,” the test it uses to decide whether a punishment is so cruel and unusual that it violates the Constitution. How can those “evolving standards” be accurately measured if the “verdicts” for death are so deeply divided or are in fact imposed by a judge who is rejecting the jury’s call to spare a life?
The Florida and Alabama jury laws are only more proof of the moral disgrace of capital punishment in this country. In Georgia, officials hide their lethal-injection drug protocol behind state-secret laws. Missouri has executed an inmate before the Supreme Court ruled on his final appeal. Texas has been trying for years to kill a man suffering from paranoid schizophrenia.
Prior related posts:
- SCOTUS finally takes up whether Florida's capital system is constitutional in light of Apprendi and Ring
- What is SCOTUS reviewing in Hurst as it considers Florida's capital sentencing process?
Saturday, March 14, 2015
Notable criminal justice commentary from Slate
Slate is already one of my regular daily reads for all sorts of topics, and Slate's regular writers on criminal justice issues (Dahlia Lithwick, Emily Bazelon, William Saletan) always have something interesting to say. And these recent Slate pieces seem like must-reads for criminal justice fans:
UPDATE: Just a few days since I first completed this post, here are some more must-read Slate pieces:
Friday, March 13, 2015
Utah establishes criminal registry for white-collar offenders
Via this New York Times piece, I see that Utah has extended the idea of a criminal registry to fraudsters. Though I have reservations about criminal registries for a variety of reasons, I think this particular kind of registry might make a lot of sense as a recidivism/crime prevention measure. Here is how this fascinating story gets started:
With just a point and a click, you can browse a face book of felons, a new government website that will warn of the danger these criminals pose to society. Only these are not the faces of sex offenders and serial killers. These criminals are mortgage schemers and inside traders, most likely armed with nothing more than an M.B.A. or a law degree.
Their faces will soon appear online courtesy of the Utah Legislature, which on Wednesday approved a measure to build the nation’s first white-collar offender registry, appending a scarlet letter of sorts on the state’s financial felons. The registry — quirky even by the standards of a legislature that this week reinstated firing squads as a method of execution — will be replete with a “a recent photograph” of Utah’s white-collar offenders and, in case they try to run or hide, their “date of birth, height, weight, and eye and hair color.”
“White-collar crime is an epidemic in Utah,” said Sean Reyes, the state’s attorney general who formulated the idea for the registry when he was a defense lawyer, “representing some of these bad guys.” A former mixed martial arts fighter who has a metal plate lodged in his eye socket from a basketball injury, Mr. Reyes noted that while violent crimes were devastating, many “physical wounds heal,” whereas white-collar crimes “can forever deplete your life savings.”
While some Utah lawmakers fear that the registry is overkill, the idea does tap into a vein of populist outrage over financial misdeeds. As much as sex offender registries spread state by state, so too could a white-collar crime registry find favor across the nation, say its supporters.
The legislation’s sponsor in the Utah Senate, Curtis S. Bramble, a Republican, plans to promote the idea through his role as president-elect of the National Conference of State Legislatures, an influential group, saying that “the registry could become a best practices for other states.”
March 13, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack
Tuesday, March 10, 2015
Fascinating press conference introducing federal medical marijuana reform bill, the CARERS Act
I am watching the press conference (streamed here) with presentations by Senators Rand Paul, Cory Booker and Kirsten Gillibrand introducing their new federal medical marijuana reform bill, the CARERS Act. Fascinating stuff.
Senator Booker started by noting veterans' interest in using medical marijuana, Senator Paul spoke of the need for more research and banking problems for state-legal marijuana business, and Senator Gillibrand was the closer by stressing the need for families to have access to high-CBC medicines for children suffering from seizure disorders.
Adding to the power of the press conference is a set of testimonials from a mom eager to have CBC treatments for her daughter (who had a small seizure during the press conference!), and an older woman with MS eager to have access to marijuana to help her sleep. Senator Paul followed up by introducing a father of one of his staffers with MS, who testified from a wheelchair. Senator Booker then introduced a 35-year-old veteran who complained about been deemed a criminal for his medical marijuana use by a country he fought for over six years. Notably, after all the white users/patients advocated for reform, Senator Booker introduced an African-American business owner talking about the problems with having to run a medical marijuana business without access to banking services.
This Drug Policy Alliance press release summarizes what is in the CARERS Act:
The Compassionate Access, Research Expansion and Respect States - CARERS - Act is the first-ever bill in the U.S. Senate to legalize marijuana for medical use and the most comprehensive medical marijuana bill ever introduced in Congress. The CARERS Act will do the following:
Allow states to legalize marijuana for medical use without federal interference
Permit interstate commerce in cannabidiol (CBD) oils
Reschedule marijuana to schedule II
Allow banks to provide checking accounts and other financial services to marijuana dispensaries
Allow Veterans Administration physicians to recommend medical marijuana to veterans
Eliminate barriers to medical marijuana research.
Depressing news that sentencing toughness is doing little to deter child porn offenses
Regular readers know about the severity of some federal and state sentencing schemes for the downloading of child pornography. The federal sentencing guidelines often recommend sentences of a decade or longer just for downloading child porn (though federal judges do not always follow these guidelines). In one notable case from Florida, as reported here, a first offender received an LWOP sentence for downloading illegal images on a laptop. And in Texas a few years ago, as reported here, a child porn downloader received a sentence of 220 years (though probably mostly do to evidence of lots of child molesting).
I have long hoped that these kinds of severe sentences for computer sex offenses would help serve to deter others who might otherwise be inclined to be involved in the harmful and disturbing activity of creating and distributing sexual picture of children. Sadly, though, according to this discouraging new Houston Chronicle article, child pornography still "is increasing fast, authorities say." The article is headlined "Child porn reports soaring with technology upgrades," and here are excerpts:
Every week in the Houston area, FBI agents execute warrants on child pornography charges, said agency spokeswoman Shauna Dunlap. "It's one of our busiest areas," Dunlap said. "We're serving search warrants or arrest warrants across the city and county area, whether for our (Houston Area Cyber Crimes) Task Force or the (Harris County) District Attorney's Office."
On Feb. 13, William Butler Myers of Meadows Place in Fort Bend County was sentenced to nearly 20 years (236 months) in federal prison for attempted production of child pornography involving a 14-year-old girl, U.S. Attorney Kenneth Magidson's office announced. Myers, 43, entered a guilty plea on Nov. 21, 2013. Charges against Myers resulted from evidence found on a cellphone that he took to a repair shop. A shop employee called police after seeing what he thought was child pornography on the phone, officials said.
Cellphone evidence also led to charges against Jason Ryan Bickham, 32, of Orange. He pleaded guilty in September to possession of child pornography and was sentenced Feb. 24 to 10 years in federal prison, U.S. Attorney John M. Bales of the Eastern District of Texas announced last month.
With technology advancing rapidly, federal authorities expect the crime of creating, possessing or distributing pornographic images to increase as well, Dunlap said. "One of the issues and concerns with child pornography is that, once those images are shared, there's a great possibility for the victims to be revictimized each time those images are traded and shared," she said....
Like most crimes, this one cuts across socioeconomic lines. "We've had affluent individuals, those in positions of trust and regular, everyday individuals," Dunlap said. "There's not necessarily any particular stereotype with this crime."
On Thursday, March 12, former Denton High School teacher Gregory Bogomol is scheduled to be sentenced in federal court in Fort Worth after pleading guilty to two counts of producing child pornography. Each count carries a maximum sentence of 30 years in federal prison. Bogomol allegedly used social media applications such as KIK, Grindr, and Pinger to initiate conversations with underage males and to entice boys to produce sexually explicit pictures, authorities said.
Terry Lee Clark of Corpus Christi, who admitted possessing more than 5 million pornographic images, was sentenced Feb. 26 to eight years in federal prison, according to a news release from the office of U.S. Attorney Kenneth Magidson for the Southern District of Texas. Clark pleaded guilty in October to possession of illegal pornograpic images, including about 47,000 involving pre-pubescent females, some under the age of 12, engaging in sexually explicit conduct with adult males, authorities said.
On Feb. 17, a Galveston jury convicted William Cody Thompson of two counts of possession of child pornograpny. He was sentenced the next day to 10 years in Texas state prison on each count, with the sentences to run consecutively. Agents with the Houston Metro Internet Crimes Against Children Task Force conducted an investigation, which led to a 2013 search warrant for Thompson's residence and the discovery of thousands of pictures and videos on multiple computers, officials said.
Since 2010, child pornography reports to the National Center for Missing and Exploited Children's cyper tip line have skyrocketed, said John Shehan, executive director of the agency's Exploited Child Division. "We certainly have an increasing trend," he said, noting that 223,000 reports were received in 2010, compared with 1.1 million in 2014 and 560,000 in the first two months of this year.
Part of the spike is explained by a federal law that requires electronic service providers to make a report to the Cyber Tip Line if they become aware of child pornography images on their systems, Shehan said. "Many companies are proactively looking on their network for child sexual abuse images," he said, which likely means they learn about more images than they would by happenstance.
Also boosting the numbers, Shehan said, is the fact that pictures are easily spread around the globe online, he said. Of this year's half-million reports to the tip line, 92 percent were linked back to IP addresses abroad, he said.
However the number of federal child-exploitation cases brought against defendants between 2009 and Fiscal Year 2014 has hovered around 2,100, dipping to 2,012 in Fiscal Year 2012 and jumping up to 2,331 the next year.
This story confirms what social scientists have long known about deterrence: even a very severe punishment is unlikely to deter if its imposition is neither certain nor swift. This story suggests that there may well be at least 1000 other child porn offenses for every one that gets prosecuted. Even if a jurisdiction were to try imposing a death sentence for child porn offenses (which, of course, the Supreme Court has held to be unconstitutional in the US), such a severe sanction would be very unlikely to deter when there is less and a .1% chance of any offender getting caught.
I have long been concerned about the efficacy of severe child porn sentences in the federal system, and this story heightens my concern. In the end, I think some distinct technology and a kind of economic sanction on tech facilitators of this scourge is now needed far more than still tougher sentences (which may not even be possible) in order to deal with this still growing problem.
Monday, March 09, 2015
Right on Crime poll reports most Texans want to "spend more money on effective treatment programs [rather than] on our prison system"
Last week, Bill Otis over at Crime & Consequences in this post wondered what the general public thinks about Attorney General Eric Holder's advocacy for "smart on crime" reforms. Bill there asks:
What is the electorate's view of the current state of crime and punishment in America? Does the public agree with the Attorney General that we have too many people in prison for too long, or does it think we aren't doing enough to keep people who commit crime off the street? To my knowledge, this question has never been polled by any respected organization.
I am unsure if Bill would consider the Texas Public Policy Foundation or Right on Crime to be a "respected organization," but today brings the release of a new poll from these sources that suggests that Texans strongly support the state's own "smart on crime" reforms that have served as something of a model for AG Holder's own advocacy for sentencing reform. This press release, titled "New Poll Shows Voters Strongly Support New Justice Reforms in Texas," provides the details, and here are excerpts from it:
A new poll released today by Right on Crime, the nation’s leading conservative public policy campaign for criminal justice reform, shows voters strongly support criminal justice reforms in Texas. The poll conducted by Wilson Perkins Allen Opinion Research for the Texas Public Policy Foundation found that the vast majority of likely Texas voters want to hold more nonviolent offenders accountable in communities, make penalties proportionate to the crime, and ensure those leaving prison spend part of their sentence-under community supervision....
The poll was conducted by Wilson Perkins Allen Opinion Research from February 24-26, 2015. The study has a sample size of 1000 likely voters, with a margin of error of ±3.1%. Some significant findings from the survey, include:
• 73% of voters in Texas strongly support reforms that would allow non-violent drug offenders found guilty of possession to be sent to a drug treatment program instead of jail.
• Voters agree that we should spend more money on effective treatment programs (61%) rather than spending more money on our prison system (26%)....
“Texans are clearly demanding a different solution to the state’s criminal justice problems, especially when it comes to nonviolent offenders,” said Right on Crime Policy Director Marc Levin. “The primary reason to adopt these policies is that they are the most cost-effective way to fight crime, but it is reassuring to see that average Texans recognize this as well.”
March 9, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Sunday, March 08, 2015
Stirring (sentencing) civil rights sentiments in Selma speech
The events in Selma, Alabama a half century ago has led to a modern weekend of discussion and reflection on the achievements and work still to be done in the never-ending struggle for civil rights for all. President Obama, whom even his toughest critics will admit can give a good speech, spoke to these matters in a speech at an historic location in Selma. The full text of the speech is worth a read, and these sentiments from the text of President Obama's remarks which have obvious sentencing significance:
This is work for all Americans, and not just some. Not just whites. Not just blacks. If we want to honor the courage of those who marched that day, then all of us are called to possess their moral imagination. All of us will need to feel, as they did, the fierce urgency of now. All of us need to recognize, as they did, that change depends on our actions, our attitudes, the things we teach our children. And if we make such effort, no matter how hard it may seem, laws can be passed, and consciences can be stirred, and consensus can be built.
With such effort, we can make sure our criminal justice system serves all and not just some. Together, we can raise the level of mutual trust that policing is built on — the idea that police officers are members of the communities they risk their lives to protect, and citizens in Ferguson and New York and Cleveland just want the same thing young people here marched for — the protection of the law. Together, we can address unfair sentencing, and overcrowded prisons, and the stunted circumstances that rob too many boys of the chance to become men, and rob the nation of too many men who could be good dads, and workers, and neighbors.
- Should criminal justice reform be the new civil rights movement?
- Reflecting on race and criminal justice realities to honor MLK's legacy
- NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
- Fittingly for MLK day, Prez Obama laments class and race disparities from pot prohibition
- Do (and should) marijuana reform advocates consider themselves civil rights activists like MLK?
- MLK marijuana mash-up: "I Have A Dream..." we are free at last from pot prohibition
Saturday, March 07, 2015
California voters through Prop 47 help fix prison crowding problems plaguing state for decades
Prison overcrowding has been a persistent problem in California for decades, driven in part by tough-on-crime repeat offender sentencing laws passed in the state in the early 1990s. Governors and legislative leaders from both political parties have long understood the critical need to address prison overcrowding problems: e.g., in 2006 as noted here and here, Governor Schwarzenegger issued a proclamation calling the state's legislature into special summer session starting to address prison crowding issues. But, until the US Supreme Court finally affirmed a special federal court order requiring reductions in the prison population, California's political leaders could not agree on laws to address these pressing problems.
I provide all this back-story, which should be familiar to those who follow California crime-and-punishment issues closely, because this new local article about the prison impact of Prop 47 in the state highlights that voters apparently figured out in one election how to address prison crowing problems in a significant way. The piece is headlined "California prisons have released 2,700 inmates under Prop. 47," and here are excerpts from the piece:
California’s prisons have released 2,700 inmates after their felonies were reduced to misdemeanors under a ballot measure that voters approved in November, easing punishment for some property and drug crimes.
The mass inmate release over the past four months under Proposition 47 has resolved one of the state’s most ingrained problems: prison overcrowding, state prisons chief Jeffrey Beard told a Senate committee at a legislative hearing Thursday. Prop. 47 has allowed the state to comply with a court-ordered inmate reduction mandate a year ahead of schedule, Beard said.
But law enforcement leaders say they’ve already seen an increase in crime, and they believe it’s because of Prop. 47. “The good news is we’ve addressed our jail overcrowding situation in California, which wasn’t acceptable to anybody,” said San Francisco Police Chief Greg Suhr in a phone interview. “The thing we are grappling with is the tremendous rise in property crime.”
Prop. 47 allows inmates serving sentences for crimes affected by the reduced penalties to apply to be resentenced and released early. Those crimes include shoplifting, grand theft and writing bad checks, among others. About 150 inmates a week are being released under the relaxed laws. Initially, 250 to 300 inmates a week were being let out....
Prisoners released under Prop. 47 are required to be on parole for one year unless a judge decides otherwise. California now has 112,500 inmates in its prisons, which is 1,300 inmates below the final cap the state was required to meet by February 2016....
In San Francisco, Suhr said burglaries are up 20 percent, larceny and theft up 40 percent, auto theft is up more than 55 percent, between 2010 and 2014. Suhr said those crimes shot up largely due to prison realignment, Gov. Jerry Brown’s program that changed sentencing, sending thousands of convicted felons to county jail or probation instead of state prison. Suhr said auto burglaries are up quite a bit this year, and he believes it’s because of the Prop. 47 release.
Last year, violent crime and property offenses in San Francisco were down overall, according to end-of-year data released by the Police Department last month. “This situation is not unique to San Francisco,” Suhr said. “I don’t think this is something we can’t figure out, but there is a new normal for property theft we have to figure out.”
Prop. 47 scrapped felony penalties for possession of most illegal drugs, such as methamphetamine, cocaine and heroin, as well as for property crimes in which the loss was $950 or less. Prior to the measure, the threshold for misdemeanor property crimes was $450. Those crimes include forgery, check fraud, petty theft, shoplifting and receiving stolen property.
Defendants in those cases could still be charged with felonies if they had a previous conviction for specified serious or violent crimes or sex offenses. “There are still consequences,” Anderson said. “Anyone convicted of a misdemeanor can face a year in county jail.”
Each year, 40,000 people in California are convicted of crimes covered by Prop. 47, according to the nonpartisan Legislative Analyst’s Office, which projected the state will save $100 million to $200 million beginning next fiscal year from the measure. Most of that money is slated for mental health and substance abuse programs.
I think it will likely take at least a few more years to sensibly measure and understand even the short-term impact of Prop 47 and other legal reforms in California on crime rates. But I suspect that, economic savings aside, most California voters and victims could tolerate an increase in property crime if it is accompanied by a decrease in violent crime. And I have long believe it is important to reduce the number of nonviolent offenders in prison so that there is more room for the violent ones.
Thanks to California voters passing Prop 47, the state now finally has 1,300 spare prison beds available for the confinement of the most serious and dangerous offenders. in addition, it has many millions of tax dollar to devote to programming to reduce crime and recidivism among those at great risk based on substance abuse. I am hopeful (though not especially optimistic) that California officials will allocate all these extra resources to programs with a proven track record in helping to drive down violent crimes (which I believe are already at record low levels in California).
Some prior related posts on California's Prop 47 and its early impact:
- Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
- Notable pitch for California Prop 47 based in mental health concerns
- California sentencing reform initiative Prop 47 wins big getting almost 60% support
- Impact of California's Prop 47 already being felt ... by defense attorneys and police
- Intriguing review of early impact of California's Prop 47 reducing offense seriousness
- Early report on the early impact of Proposition 47 in California
March 7, 2015 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Thursday, March 05, 2015
Should there be a presumptive incarceration "retirement age" to deal with the graying of prisons?
The question in the title of this post is my latest provocative (but very serious) thought about how to deal with the aging US prison population and the costs that incarcerating the elderly places on taxpayers. This thinking is prompted today by this new commentary from New York titled "Address the Graying of Prisons," which makes these points:
In New York, roughly 17 percent of the state's prison population is elderly. By 2030, the aging are expected to account for one third of the prison population. This large-scale incarceration of the elderly is enormously expensive. The United States spends over $16 billion annually on incarceration for individuals aged 50 and older — approximately double the cost of incarcerating a younger person.
But cost is not the only reason to address this crisis. Prisons were not designed to meet the basic needs of elderly individuals. Wheelchair inaccessibility and bunk beds make daily life difficult for people with mobility impairment; cognitive impairments and hearing loss exacerbate the challenges. When the health ward proves incapable of providing care, prisoners must be cared for at an outside hospital — with expensive around-the-clock guards.
Weigh this against the following fact: many "long-termers" are so old, sick, and frail that they pose virtually no safety risk to the public, with a national recidivism rate of only 4 percent for those over 65.
But, if we release more of the aging, as we should (of the 2,730 requests for compassionate release in New York between 1992-2002, only 381 were granted), we will need to address the dearth of community-based services to support them. The majority of those released after serving long sentences face fading social and family networks, a struggle to access health care and housing, and a lack of skills required to live independently. Nursing homes often won't take them, they are ineligible for Medicare while on parole, and many haven't paid enough into Social Security to receive benefits....
And the solution cannot be left only to those of us in criminal justice and corrections. We need the fields of gerontology, mental health treatment and senior services, working together to develop better solutions to the complex, multifaceted problems faced by aging formerly incarcerated individuals....
Here in New York, the Osborne Association will soon begin a pilot project to provide discharge planning and case management support for elders released to New York City. It is a start. But ultimately, any systemic and sustained change is contingent upon our collective willingness to deal with the looming crisis of a graying prison population in ways that reduce costs and improve lives while recognizing the inherent dignity of all people.
Given that the recidivism rate for those over 65 is so low (and I suspect especially lower for elderly prisoners without a long criminal record and not previously involved in serious sex or drug offenses), why not a national policy that any and all prisoners who have already served a certain number of years in prison and reach 65 ought to be presumptively considered for immediate parole? We could have data-driven risk-assessment instruments that help officials decide which older offenders are likely to pose no real safety risks at their old ages.
Among other benefits, a national "presumptive prison release at 65 scheme" could and would bring all jurisdictions in compliance with the Eighth Amendment rules set forth in Graham and Miller. In addition, both offenders and victims (and lawyers and judges) could/would all know that "life" sentences really mean serving for sure in prison until the offender is 65 at which point the offender would have a chance to seek release. And victims and others could plan and gear up to explain why they would oppose or support release at that date certain.
Especially in light of improving life expectancies, even for those imprisoned, I could image tweaking this proposal to set the presumptive prison retirement age at 70 or even 75. But, whatever the selected retirement age, I think our sentencing and prison systems might be improved by having some national presumptive norms about being "too old to jail." Indeed, just as many employers and employees believe it is not just or efficient to expect elderly individuals to work full-time until they drop dead, I suspect many prison officials and prisoners may believe it is not just or efficient to expect elderly individuals to remain imprisoned full-time until they drop dead.
March 5, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (16) | TrackBack
Wednesday, March 04, 2015
"Do the Koch Brothers Really Care About Criminal-Justice Reform?"
The title of this post is the headline of this notable new Atlantic piece by Molly Ball exploring what to make of the recent emphasis on criminal justice reform coming from politically-savvy billionaires. Here are excerpts:
Here is the thing the Koch brothers wish their critics understood: They just want to help people. "Everything we do is designed to help people improve their lives, whether you're talking about our business or our philanthropy," Mark Holden, the senior vice president and general counsel for Koch Industries, told me recently from his office in Wichita, where the multibillion-dollar international manufacturing conglomerate that Charles and David Koch inherited from their father is headquartered. "We think a free society, consistent with classical liberalism and individual liberties, is the key to success for everyone, and that's what drives a lot of our activities. And criminal-justice reform is good for all of us — the rich, the poor, and everyone else."
Though the Kochs are best known — and, to liberals, notorious — for the massive amounts of money they pour into politics, they have lately been calling attention to a less polarizing crusade: an attempt to address what they term "the overcriminalization of America." But not everyone is convinced that their efforts are quite so sincere.
Critics such as Robert Greenwald, director of the documentary Koch Brothers Exposed, suspect that the push to roll back the criminal code is really just the brothers' deregulatory agenda by another name. Indeed, Charles Koch, the company's chairman and CEO, has said he became interested in criminal-justice reform after a grand jury's 1995 indictment of a Koch refinery in Texas for 97 felony violations of environmental law. The company spent six years fighting the charges and eventually settled with the government for $10 million. Seen in this light, the criminal-justice pitch is just another attempt to manipulate the political process to advance the company's financial interests. That's the view of the liberal group American Bridge, which maintains the anti-Koch "Real Koch Facts" website. "Their own bottom line isn't just an important factor in their activity, it's the only thing," a spokesman for the group, Ben Ray, told me.
This is the question that has always swirled around the Kochs and their political efforts — the massive juggernaut of funding for conservative activism and candidates that critics dub the "Kochtopus": Are the brothers sincere ideologues dedicated to a libertarian vision for America? Or are they simply trying to tilt the political system to favor themselves and their companies?
Various tentacles of the Kochtopus have been involved in criminal-justice issues for about a decade; during that time, Charles Koch has quietly made contributions amounting to seven figures to the National Association of Criminal Defense Lawyers, money that has been used to provide lawyers for poor defendants. In 2011, the group honored Koch Industries with its annual Defender of Justice award. "They are in complete agreement with us on the fundamental policy — to make the Sixth Amendment a reality for every person in the country," said the association's executive director, Norman Reimer.
But the Kochs' advocacy has become more vocal in recent months, from public statements to new partnerships with such groups as Families Against Mandatory Minimums, the American Civil Liberties Union, and even the liberal Center for American Progress. The bid for more attention for the reform effort has received overwhelmingly positive attention, and coincides with a new PR push to show Koch Industries in a friendlier light, including a "We Are Koch" national television campaign that casts the company as heartland job creators — prompting the Kochs' critics to suspect a whitewash. After all, the investment in criminal-justice reform pales in comparison to the hundreds of millions the Kochs and their donor network have spent electing Republicans, many of whom don't share their views on civil liberties, Greenwald noted. "Certainly the scales tip against the impact of this, except from the press point of view," he said of the reform push.
And yet the Kochs have found many willing partners on the left for this effort, even among their erstwhile critics. In 2011, the civil-rights activist and former Obama administration adviser Van Jones cited the Kochs as emblematic of the "economic tyranny" plaguing America, declaring, "We will not live on a national plantation run by the Koch brothers." He appears in the Koch Brothers Exposed (tagline: "The 1% at its very worst"). But Jones has welcomed the Kochs' support for his new Cut50 project, which aims to halve the prison population over the next decade. At a recent panel discussion in Washington, he sat next to Holden and gave him a hug. Koch Industries has agreed to participate in an upcoming conference Jones is sponsoring on prison reform. When I asked Jones if it made him uncomfortable to team up with people he's previously depicted as villains, he responded, "When you've got more than 2 million people behind bars, I'll fight alongside anybody to change those numbers."...
To allies like Jones, it doesn't matter whether the Kochs are acting in good faith as long as their assistance stands to help the cause. In a neat illustration of the way this issue crosses partisan lines, the ACLU's campaign against mass incarceration is supported by both the Kochs and liberal financier George Soros's Open Society Foundation. Anthony Romero, the ACLU's executive director, acknowledged that some of the group's liberal members aren't thrilled about the Koch partnership: "There's always some unhappiness whenever you work with, quote-unquote, the enemy," he told me. But particularly with Republicans in control of Congress, he said, validation from the likes of the Kochs is the key to moving the issue forward. "Having the Koch brothers involved fundamentally changes the landscape. It gives legitimacy to this issue as a proper field of inquiry for Republican political leaders," he said.
The Kochs' activism fits within a broader trend on the right. Where once Republicans could reliably be stereotyped as tough-on-crime and Democrats as squishy bleeding hearts, recent years have seen many in the GOP question the old dogma of lock-'em-up, spurred by the party's increasingly libertarian bent and a desire to control spiraling prison costs. The 2012 Republican Party platform discarded its old plank endorsing the War on Drugs for one that emphasized prisoner reentry and rehabilitation; at the 2014 Conservative Political Action Conference, then-Texas Governor Rick Perry headlined a criminal justice panel at which he urged, "Shut prisons down. Save that money." As The Nation noted approvingly, Perry "has become one of the more aggressive prison reformers in the country," and he's been joined by Republican governors or former governors in Pennsylvania, Ohio, and New Jersey....
Holden, the Koch counsel, is a spike-haired Massachusetts native who once worked as a jail guard—seeing youths from his blue-collar neighborhood on the other side of the bars, he says, made a deep impression. He takes issue with the notion that the Kochs only want to pad their own pockets, pointing out that they take many positions "contrary to our short-term economic self-interest."
Some prior related posts on Koch family efforts in support of criminal justice reform:
- Koch Industries give "major grant" to NACDL to help with indigent defense
- Highlighting that George Soros and the Koch Brothers agree on the need for criminal justice reform
- Another sign of the modern sentencing times: notable sponsor for "How the Criminal Justice System Impacts Well-Being"
- ACLU to devote $50 million to political efforts to attack mass incarceration
- Big talk from Charles Koch about big (money) criminal justice reform efforts
- Imagining a SuperBowl party with the Koch brothers, Al Franken, Rob Portman, David Keene, Piper Kerman and Van Jones
- A test for the Kochs' influence: seeking justice and freedom for Weldon Angelos
- "Inside The Koch Campaign To Reform Criminal Justice"
Tuesday, March 03, 2015
"Fishy SOX: Overcriminalization's New Harm Paradigm"
The title of this post is the title of this new paper by Todd Haugh available via SSRN. The piece argues that the recently decided Yates case is more consequential than the standard fish shory. Here is the abstract:
The harms of overcriminalization are usually thought of in a particular way—that the proliferation of criminal laws leads to increasing and inconsistent criminal enforcement and adjudication. For example, an offender commits an unethical or illegal act and, because of the overwhelming depth and breadth of the criminal law, becomes subject to too much prosecutorial discretion and faces disparate enforcement or punishment. But there is an additional, possibly more pernicious, harm of overcriminalization.
Drawing from the fields of criminology and behavioral ethics, this Article makes the case that overcriminalization actually increases the commission of criminal acts themselves, particularly by white collar offenders. This occurs because overcriminalization, by delegitimatizing the criminal law, fuels offender rationalizations. Rationalizations are part of the psychological process necessary for the commission of crime—they allow offenders to square their self-perception as “good people” with the illegal behavior they are contemplating, thereby allowing the behavior to go forward. Overcriminalization, then, is more than a post-act concern. It is inherently criminogenic because it facilitates some of the most prevalent and powerful rationalizations used by would-be offenders. Put simply, overcriminalization is fostering the very conduct it seeks to eliminate. This phenomenon is on display in the recently argued Supreme Court case Yates v. United States. Using Yates as a backdrop, this Article presents a new paradigm of overcriminalization and its harms.