Friday, May 08, 2015

"We clearly need criminal-justice reform" says GOP Prez candidate Carly Fiorina

This Des Moines Register article (and video) details some notable new comments on criminal justice reform and drug policy from a notable new GOP Prez candidate.  Here are excerpts: 

The nation should stop overreacting to illegal drug use and stop doling out jail sentences that are way too long, Republican presidential candidate Carly Fiorina said in Iowa on Thursday.

"We know that we don't spend enough money on the treatment of drug use," said Fiorina, former chief executive of Hewlett-Packard. "When you criminalize drug abuse, you're actually not treating it. We had a daughter who died of addictions, so this lands very close to home for me." Fiorina's daughter Lori, a drug and alcohol addict, died in 2009.

The "three strikes and you're out" law doesn't work well, and all the drug laws affect African-Americans more than others, Fiorina told The Des Moines Register's editorial board during an hourlong meeting.

"I don't think that overreacting to illegal drug use is the answer," said Fiorina, who officially entered the 2016 race on Monday and is the only woman in the GOP field. She has never held elected office, but ran unsuccessfully for U.S. senator in California.

Asked whether she favors decriminalizing marijuana, Fiorina answered: "No, I do not think we should legalize marijuana."...

Asked whether, as president, she'd direct the U.S. attorney general to enforce federal drug laws in states such as Colorado, Alaska, Washington and Oregon, Fiorina said she wouldn't. "I believe in states' rights," she said. "They're within their rights to legalize marijuana, and they're conducting an experiment I hope the rest of the nation is looking closely at."

May 8, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Senator Grassley's home-state paper tells him to stop blocking federal sentencing reforms

This new editorial from the Des Moines Register, headlined "Grassley should not block sentencing reforms," highlights that some notable folks are frustrated by Senator Charles Grassley's apparent unwillingness to move forward significantly with federal sentencing reforms proposed by his colleagues. Here are excerpts:

Amid hysteria over growing use of illegal drugs 30 years ago, Congress passed tough new criminal laws carrying long mandatory prison sentences. Regardless of whether mandatory sentences had any effect on drug abuse, they have contributed to a 500 percent increase in the federal prison population and a 600 percent increase in federal prison spending.

Besides filling prisons and imprisoning a generation of largely minority males from inner cities, these one-size-fits-all sentences tie the hands of judges who should tailor penalties to the unique circumstances of individual defendants.  And this obsession with criminalizing drug use has diverted resources that instead should be used to help people overcome their addictions.

Something extraordinary has happened recently, however: A consensus has emerged that this nation has put far too many people behind bars, and in the process it has created an unemployable underclass with criminal records.  That consensus includes a remarkable cross-section of politicians from both ends of the political spectrum, along with religious leaders, corporate executives and opinion leaders.

While there is growing bipartisan support in Congress for changing the mandatory-minimum sentencing law, one potential stumbling block remains stubbornly in place: U.S. Sen. Charles Grassley, who as chairman of the Senate Judiciary Committee is in a position to allow federal sentencing reforms to move forward.

Grassley’s rhetoric has not encouraged optimism.  He was dismissive and defensive when a “Smarter Sentencing Act” was introduced in March with the support of senators ranging from Republicans Ted Cruz of Texas and Rand Paul of Kentucky to Democrats Dick Durban of Illinois and Patrick Leahy of Vermont.  He referred to supporters of the sentencing reform bill in a floor speech as the “leniency industrial complex.”

Although he recently seemed to soften his tone, saying he is “ready to address some of these issues,” Grassley has ruled out any across-the-board cut in mandatory minimum sentences.  Three Iowa bishops in a guest opinion published by the Register May 1 called on him to support sentencing reform, but he promptly responded with an opinion piece that amounted to a full-throated defense of mandatory minimum sentences.

The argument in favor of mandatory sentences is that the prospect of spending decades in prison gives prosecutors leverage to get lower-tiered dealers to produce evidence against “drug kingpins.”  But this gives prosecutors enormous power to force defendants to plead guilty, and with no prior involvement of a judge in open court.

Despite the assertion that mandatory sentences are aimed at putting away drug lords, “offenders most often subject to mandatory minimum penalties at the time of sentencing were street-level dealers — many levels down from kingpins and organizers,” according to research by the U.S. Sentencing Commission....

This nation’s war on drugs focused on criminal punishment instead of treatment has been a complete failure.  At long last there is growing support for changing that.  Iowa’s senior senator should not stand in the way.

Some recent related posts:

May 8, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, May 06, 2015

Now what for Frank Freshwaters, captured 56 years after walking away from Ohio honor camp in 1959?

This lengthy Washington Post article provide these amazing details of the real-life (and ready-for-TV) tale of a recently-captured fugitive who was been on the lam since the Eisenhower administration:

For a week, U.S. marshals staked out the trailer park at the swampy edge of the world. They watched as an old man with a white ponytail, glasses and beard slowly shuffled around his Melbourne, Fla., mobile home. The name on the mailbox said William Harold Cox, but the marshals knew better. After seven days of surveillance, they confronted Cox with a mug shot of a much younger man, dated Feb. 26, 1959.

“He said he hadn’t seen that guy in a long time,” said Maj. Tod Goodyear of the Brevard County Sheriff’s Office, which assisted in the stakeout. “Then he admitted it and basically said, ‘You got me.'”

As the marshals suspected, the old man was actually Frank Freshwaters, a felon on the lam for 56 years. His arrest on Monday brings to an end a half-century saga that reads like a Hollywood script, complete with a deadly crime, dramatic prison escape and a cunning trap to catch a wanted fugitive. The tale even includes a tie-in to the movie it already resembles: “The Shawshank Redemption.”

Freshwaters’s story is one of spurned second chances. Back in the summer of 1957, he was a 20-year-old kid with a full head of dark hair and a lead foot. One night in July, he was speeding through Ohio when he hit and killed a pedestrian. Freshwaters was sentenced to up to 20 years in prison only to have the sentence suspended, according to the Associated Press.

But Freshwaters squandered his good fortune. He violated probation by climbing back into the driver’s seat and was locked up in February 1959 in the Ohio State Reformatory. It would prove to be a fitting setting for Freshwaters. After its closing in 1990, the reformatory would be used as a set for “The Shawshank Redemption,” a 1994 movie about a wrongfully convicted man who escapes from prison.

Freshwaters never escaped from the reformatory, however. Instead, he secured a transfer to a nearby “honor camp,” according to the AP. It was from there that Freshwaters disappeared on Sept. 30, 1959.

The 22-year-old didn’t disappear without a trace, however. In 1975, he was arrested in Charleston, W.Va., after allegedly threatening his ex-wife. He was found hiding under a sink in his house, the AP reported. At the time, investigators said Freshwaters had fled to Florida and obtained identification and a Social Security number under the alias William Harold Cox. Then he moved to West Virginia, where he drove a mobile library for the state government and worked as a trucker.

But Freshwaters caught a second break. The governor of West Virginia refused to extradite him to Ohio. Freshwaters was freed from jail and disappeared once again.

It now appears as if he made his way down to Florida, where he continued to live under his alias, even receiving Social Security checks. Back in Ohio, meanwhile, his file gathered dust until earlier this year, when a deputy marshal reopened the 56-year-old case....

Authorities took the senior citizen into custody. During a court appearance on Tuesday, a wheelchair-bound Freshwaters waived extradition, freeing the way for him to return to Ohio and finish the up-to-18 years remaining on his manslaughter sentence. Barring another escape, he could be as old as 97 upon his release.

As far as second lives go, Freshwaters’s Florida hideout was no beachfront home in Zihuatanejo, Mexico, the location where the wrongfully convicted character Andy Dufresne settles down after escaping from Shawshank. But it was far better than an Ohio prison.

The kind reader who sent me the link to this account of the Freshwaters' story added this query: "So is it really worth it for the the state of Ohio to incarcerate an ill 79 year old rehabilitated felon for the rest of his life?"  

May 6, 2015 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (7) | TrackBack

Tuesday, May 05, 2015

"What can one prosecutor do about the mass incarceration of African-Americans?"

The question in the title of this post is the subheadline of this lengthy and timely New Yorker article authored by Jeffrey Toobin.  For many reasons (as perhaps the highlights below suggest), the full article is a must-read:

Like many people in the criminal-justice system, John Chisholm, the District Attorney in Milwaukee County, has been concerned for a long time about the racial imbalance in American prisons.  The issue is especially salient in Wisconsin, where African-Americans constitute only six per cent of the population but thirty-seven per cent of those in state prison. According to a study from the University of Wisconsin-Milwaukee, as of 2010 thirteen per cent of the state’s African-American men of working age were behind bars — nearly double the national average, of 6.7 per cent.  The figures were especially stark for Milwaukee County, where more than half of African-American men in their thirties had served time in state prison.  How, Chisholm wondered, did the work of his own office contribute to these numbers?  Could a D.A. do anything to change them?

The recent spate of deaths of unarmed African-Americans at the hands of police officers has brought renewed attention to racial inequality in criminal justice, but in the U.S. legal system prosecutors may wield even more power than cops.  Prosecutors decide whether to bring a case or drop charges against a defendant; charge a misdemeanor or a felony; demand a prison sentence or accept probation.  Most cases are resolved through plea bargains, where prosecutors, not judges, negotiate whether and for how long a defendant goes to prison.  And prosecutors make these judgments almost entirely outside public scrutiny.

Chisholm decided to let independent researchers examine how he used his prosecutorial discretion.  In 2007, when he took office, the Vera Institute of Justice, a research and policy group based in New York City, had just begun studying the racial implications of the work of the Milwaukee County District Attorney’s office.  Over several years, Chisholm allowed the researchers to question his staff members and look at their files. The conclusions were disturbing.  According to the Vera study, prosecutors in Milwaukee declined to prosecute forty-one per cent of whites arrested for possession of drug paraphernalia, compared with twenty-seven per cent of blacks; in cases involving prostitution, black female defendants were likelier to be charged than white defendants; in cases that involved resisting or obstructing an officer, most of the defendants charged were black (seventy-seven per cent), male (seventy-nine per cent), and already in custody (eighty per cent of blacks versus sixty-six per cent of whites).

Chisholm decided that his office would undertake initiatives to try to send fewer people to prison while maintaining public safety.  “For a long time, prosecutors have defined themselves through conviction rates and winning the big cases with the big sentences,” Nicholas Turner, the president of the Vera Institute, told me.  “But the evidence is certainly tipping that the attainment of safety and justice requires more than just putting people in prison for a long time.  Prosecutors have to redefine their proper role in a new era.  Chisholm stuck his neck out there and started saying that prosecutors should also be judged by their success in reducing mass incarceration and achieving racial equality.” Chisholm’s efforts have drawn attention around the country....

Chisholm reflects a growing national sentiment that the criminal-justice system has failed African-Americans.  The events in Baltimore last week drew, at least in part, on a sense there that black people have paid an undue price for the crackdown on crime. Since 1980, Maryland’s prison population has tripled, to about twenty-one thousand, and, as in Wisconsin, there is a distressing racial disparity among inmates. The population of Maryland is about thirty per cent black; the prisons and local jails are more than seventy per cent black....

Chisholm decided to move to what he calls an evidence-driven public-health model. “What’s the most effective way to keep a community healthy?” he asked. “You protect people in the first place.  But then what do you do with the people who are arrested?” There are two basic models of prosecutorial philosophy.  “In one, you are a case processor,” he said.  “You take what is brought to you by law-enforcement agencies, and you move those cases fairly and efficiently through the system.  But if you want to make a difference you have to do more than process cases.”

So Chisholm began stationing prosecutors in neighborhoods around Milwaukee.  “If people view prosecutors as just the guys in the courthouse, who are concerned only with getting convictions, then you are creating a barrier,” he said.  He and his team started asking themselves in every instance why they were bringing that case.  “In those that were seen as minor, it was the least experienced people who were deciding whether to bring them.  And these people saw that we had generally brought those cases in the past, so they went ahead with them again. But we started to ask, ‘Why are we charging these people with crimes at all?’ ”

May 5, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Oklahoma Gov signs "safety valve" legislation giving judges more sentencing discretion

As noted in this prior post, a few month ago the Oklahoma House passed by a significant margin a state Justice Safety Valve Act authorizing state judges to give sentences below otherwise-applicable mandatory minimums.  Now, as effectively reported via this FreedomWorks posting, this notable sentencing reform has become law.  The piece is headlined "Oklahoma becomes the latest Republican state to enact meaningful justice reforms," and here are the details (with links from the original).

Oklahoma Gov. Mary Fallin signed a major bill into law allowing judges to sentence nonviolent offenders below mandatory minimum sentences, a big government, one-size-fits-all policy that costs taxpayers big bucks....

Introduced in February by state Rep. Pam Peterson (R-Tulsa), the Justice Safety Valve Act, HB 1518, is aimed at reducing the rate of incarceration in the Oklahoma, which is among the highest in the United States. The bill allows sentences below mandatory minimums if a judge determines, based on a risk assessment, that a nonviolent offender is not a public safety risk. The bill would allow the state to save much-needed bed space for dangerous criminals.

"Our prison bed space is being taken up with people who don’t need to be there," Peterson told NewsOK.com in February. "These people are breaking the law, but I think we’ve gone to the point now where we need that space for violent offenders and are filling it up with too many nonviolent offenders."

"The courts' hands are often tied because of these mandatory minimums," she said. “Longer sentences do not equate to public safety.”

HB 1518 passed both chambers of the Republican-controlled Oklahoma State Legislature with relative ease. The House approved the bill in March by a 76 to 16 vote. The Senate followed suit in late April, passing the bill in a 31 to 13 vote.  Fallin, a Republican, signed the bill on Monday.

In her State of the State address delivered in February, Fallin urged lawmakers to get "smart on crime," offering support for alternatives to incarceration for nonviolent offenders. Incarceration, she explained, actually increases the likelihood that an offender will continue a cycle of crime.

"Personal and community safety remain top priorities, and violent criminals will continue to be incarcerated. But the fact is, one in eleven Oklahomans serve time in prison at some point in their lives. Many of our current inmates are first time, nonviolent offenders with drug abuse and alcohol problems. Many also have mental health issues they need treatment for," said Fallin. "For some of these offenders, long sentences in state penitentiaries increase their likelihood of escalated criminal behavior.

"Oklahoma must ramp up its 'smart on crime' policies, including the Justice Reinvestment Initiative, designed to intervene for low-risk, nonviolent offenders and more readily offer alternatives such as drug-courts, veterans courts and mental health courts," she continued. "Implementation of coordinated 'smart on crime' efforts between state and local governments and tribal nations has demonstrated significant cost savings and improved outcomes for offenders and public safety."...

"It costs the state around $19,000 a year to house an inmate, but only $5,000 a year to send an addict through drug court and on to treatment," Fallin explained. "In addition to being less expensive, it’s also more effective; the recidivism rate for offenders sent to drug court is just one-fourth of the rate for those sent to prison."

The Justice Safety Valve Act will take effect on November 1.

May 5, 2015 in Criminal Sentences Alternatives, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

"What are We Hoping for? Defining Purpose in Deterrence-Based Correctional Programs"

The title of this post is the title of this important and timely new paper by Cecelia Klingele now available via SSRN. Here is the abstract:

One of the most popular program models in criminal justice today is that popularized by Hawaii Opportunity Probation with Enforcement (HOPE). HOPE and other programs like it grow out of research suggesting that the most effective way to prevent violations of conditions of supervision is to more accurately detect them, respond to them immediately, and impose consistent and predictable sanctions for every detected violation. Proponents of these programs assert that they not only change behavior for the better, but that they increase the legitimacy of probation by addressing violations as they occur.

Even if program compliance rates are as high as supporters claim, serious questions remain about whether these programs, while advancing compliance, may undermine the larger goal of promoting desistance from crime. Anecdotal evidence suggests that both the conditions and sanctions imposed on program participants are often significantly more severe than the model itself requires, and are sometimes at odds with encouraging behavior that is known to foster desistance. This Essay argues that system actors have an obligation to consider the purpose of correctional intervention when evaluating program "success."

May 5, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0) | TrackBack

Sunday, May 03, 2015

“Catching American Sex Offenders Overseas: A proposal for a federal international mandated reporting law”

The title of this post is the title of this notable new law review article authored by Basyle Tchividjian, which I just came across.  Here is an excerpt from the end of the piece's introduction:

In Asia alone, over 62,000 Americans visit each year for the purpose of sexually victimizing children.4 These numbers do not include other parts of the world, nor the United States citizens who reside overseas and sexually abuse children. This considerable problem requires a bold and practical response that has proven to be effective in the United States. It is time that federal law catch up to the states and mandate its citizens who are overseas to report Americans who are suspected of sexually abusing children in foreign countries.

Section II of this Article provides a brief foundational history of mandated reporting laws in the United States.  Section III outlines the increased involvement of the federal government in promoting mandated reporting laws.  Section IV summarizes the modern state of mandated reporting, and Section V analyzes the effectiveness of the current law. Section VI shifts the focus to the growing problem of United States citizens sexually victimizing children in foreign countries.  Section VII introduces and analyzes the PROTECT Act, exposing a significant gap in the ability to enforce this federal law.  Section VIII proposes a federal international mandated reporting law that will help close the gap and allow the PROTECT Act to achieve its objective of identifying and prosecuting United States citizens who sexually abuse children overseas. 

May 3, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, May 01, 2015

Iowa faith leaders urge Senator Grassley to move forward with drug sentencing reforms

2015-SKO-Website-Flyer-3_12_151Last week, US Senator Charles Grassley spoke at the Iowa Faith & Freedom Coalition Forum, and the Faith & Freedom Coalition asserts here that its beliefs are rooted in the view "that the greatness of America lies not in the federal government but in the character of our people — the simple virtues of faith, hard work, marriage, family, personal responsibility, and helping the least among us." If Senator Grassley really shares this view, I would expect him to be significantly moved by this new Des Moines Register op-ed authored by clergy members headlined "Bishops call on Grassley to reform sentencing." Here are excerpts:

As bishops and as Christians, we are called to love and serve all people, share compassion and aid God's most vulnerable children. That is why we were among 130 of Iowa's faith leaders who last week signed a letter [available here] delivered to Iowa Sen. Chuck Grassley, the leader of the U.S. Senate Judiciary Committee. The letter advocates for sentencing reforms that affect men and women in federal prison for non-violent drug offenses.

We abhor the damage and death caused by addictive drugs. Too many Iowa families are in pain because of drug addiction, particularly from heroin. We seek to aid these families and the addicted, by supporting broader access to drug treatment, counseling and medical care. Incarceration is not an appropriate treatment for curing drug addiction.

We believe in accountability for the men and women responsible for selling illegal drugs. Those who are addicted themselves and sell drugs to support their habit should also have access to rehabilitative services. Punishment for distributing drugs is necessary; however, where we seek to influence our elected leaders is in how much punishment is justified.

Under federal law, people convicted of drug offenses are subject to strict mandatory minimum sentences based largely on the quantity of drugs possessed by the defendant. Judges have limited discretion to sentence below a mandatory sentence, even when evidence supports doing so.

For example, Mason City native Mandy Martinson received a mandatory 10-year drug sentence in 2004 for her affiliation with a boyfriend who sold marijuana and methamphetamine. She received an additional five years because two firearms were found in their home. At her sentencing hearing, the judge stated that "the evidence demonstrated that [Martinson] was involved due to her drug dependency and her relationship with [her boyfriend] and that she was largely subject to his direction and control. ... Upon obtaining reasonable drug treatment and counseling and in the wake of what she is facing now, the Court does not have any particular concern that Ms. Martinson will commit crimes in the future." Despite the judge's assessment, he had no choice but to sentence her to 15 years in federal prison.

Martinson remains in prison today, but we believe she has been in prison long enough. She is joined by nearly 100,000 people — most of whom are non-violent — serving excessive sentences in federal prisons for drug offenses. We recognize no simple solutions exist when it comes to protecting liberty and public safety, and crime demands accountability. However, a "lock em' up and throw away the key" philosophy actually undermines both of these values. Mandatory minimum sentences do not allow for consideration of an individual's experiences that led them to crime, nor to consider their age, mental capacity, or ability to learn their lesson and redeem themselves....

As many of chaplains and prison ministry volunteers know, prison overcrowding makes it difficult to operate effective faith-based and other rehabilitation programs that are proven to reduce recidivism and make our communities safer. Finally, there is an intangible expense paid by family members, particularly children, who must cope with the pain and burden of having a loved one incarcerated for far too long. Among the saddest of statistics is that some 10 million young people have had a mother or father — or both — spend time behind bars at some point in their lives.

As Iowans, we are privileged to have Senator Grassley hold unique influence in the trajectory of America's sentencing policy. We hope he will use this authority to enact drug sentencing reforms that are more appropriate, will reduce the prison population and take into account the complicated factors that lead people to sell drugs.

In the meantime, we pray for the thousands of Iowans still behind bars, their families and the many thousands more who will be subject to extreme sentencing policies in years to come if lawmakers choose not to act. Those prayers and our advocacy efforts are the best things we can do for them. Now it is time for our elected leaders to do their part.

I strongly share the view that "the greatness of America lies not in the federal government but in the ... people" and that the "virtues of faith, hard work, marriage, family, personal responsibility, and helping the least among us" should inspire the work of all government officials. To that end, if Senator Grassley is truly committed to these virtues, I hope he takes to heart the advice given by these faith leaders to move forward ASAP on "drug sentencing reforms that are more appropriate, will reduce the prison population and take into account the complicated factors that lead people to sell drugs."

Notably, as highlighted in this recent post about recent criminal justice reform essays from GOP leaders, a large number of leading GOP candidates seeking to become president seem to share the view that federal drug sentencing needs to be reformed ASAP.  Senator Ted Cruz, for example, has said this is simply a matter of common sense.  If that is true, I am not sure what Senator Cruz would call Senator Grassley's seemingly steadfast opposition to various drug sentencing reforms proposals that have garner lots of support from lots of different quarters.

Some recent related posts:

May 1, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, April 30, 2015

New proposal for National Criminal Justice Commission garnering notable support

HeaderimageThis official press release from the office of Senator Lindsay Graham highlights a notable new federal bill to create a notable new federal commission with a notable mission that already has some notable supports. Here are excerpts from the press release:

U.S. Senator Lindsey Graham (R-South Carolina) has cosponsored the National Criminal Justice Commission Act of 2015, bipartisan legislation that would create a National Criminal Justice Commission to review the criminal justice system from top to bottom and propose reforms to address serious issues facing our nation's criminal justice system.

The legislation would establish a 14-member, bipartisan National Criminal Justice Commission charged with completing an 18-month, comprehensive review of the national criminal justice system, including federal, state, local, and tribal criminal justice systems, and with issuing recommendations for changes in oversight, policies, practices and laws to reduce crime, increase public safety, and promote confidence in the criminal justice system. The Commission would be made up of Presidential and Congressional appointees, including experts on law enforcement, criminal justice, victims' rights, civil liberties, and social services.

"This is a long overdue measure," said Graham, Chairman of the Judiciary Committee's Crime and Terrorism Subcommittee. "The men and women representing law enforcement understand the need for this legislation, and I appreciate them pushing Congress to move forward on this important issue. I think the nation will be better off with this essential top-to-bottom review of the most pressing issues facing our nation's criminal justice system."...

The National Criminal Justice Commission Act of 2015 is supported by a broad coalition of criminal justice organizations, including law enforcement, crime victims, and criminal justice reform advocates.

Endorsements for the National Criminal Justice Commission Act of 2015 include:

Jonathan F. Thompson, Executive Director and CEO of the National Sheriffs' Association said: "The National Sheriffs' Association applauds Senators Peters, Graham and Cornyn for introducing this bill to establish a National Criminal Justice Commission. We believe it is in the best interest of the nation to have a transparent system going forward."...

Association of Prosecuting Attorneys President and CEO David LaBahn said:

"The Association of Prosecuting Attorneys - the only national prosecutors association to represent and support prosecutors and their deputies at the local, county, state and federal level - strongly supports the introduction of the National Criminal Justice Commission Act. It has been 50 years since there was a holistic review of the national criminal system and this effort is long overdue. We applaud Senators Peters, Graham and Cornyn for the introduction of this crucial legislation."

April 30, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, April 28, 2015

"Solutions: American Leaders Speak Out on Criminal Justice" (with some notable omissions)

The first part of the title of this post is the title of this fascinating new publication released today by the Brennan Center for Justice.  Here is how the 164-page text is described in an e-mail I received this morning:

In a remarkable cross-ideological effort, this book includes essays by public figures and experts who will play a leading role in the nation’s debate over the coming year.  The book contains original essays by Joseph R. Biden, Jr., Cory Booker, Chris Christie, Hillary Rodham Clinton, Ted Cruz, Mike Huckabee, Cathy L. Lanier, Martin O’Malley, Janet Napolitano, Rand Paul, Rick Perry, Marco Rubio, Bryan Stevenson, Scott Walker, and Jim Webb, among others.

In his foreword, former President William J. Clinton writes, “There is one area where we have a genuine chance at bipartisan cooperation: the over-imprisonment of people who did not commit serious crimes.  The drop in violence and crime in America has been an extraordinary national achievement.  But plainly, our nation has too many people in prison and for too long — we have overshot the mark.”

This book offers a first-of-its-kind preview of the solutions likely to be debated in the lead up to 2016. There is striking consensus around one idea: the need to reduce mass incarceration.  Solutions range from releasing low-level offenders waiting for trial to using federal grants to change police practices … from eliminating prison for low-level drug crimes to increasing mental health treatment.

This effort, spearheaded by our Justice Program director Inimai Chettiar, aims to elevate ending mass incarceration as a vital national issue in need of urgent attention. We look forward to your partnership in the months ahead — as these reforms are debated before the nation.

I am very interested in seeing what everyone in this new publication has to say, and I suspect the words of the presidential candidates in this collection will prove especially important in the months ahead. In short, this is must-read, perhaps especially as sad, harmful and disturbing events continue to unfold in Baltimore this week.

That all said, I must state that I am a bit put off by the fact that Bill Clinton authors the foreword without noting his own significant role in helping to encourage the adoption and preservation of, in his words, the "too many laws [that were] overly broad instead of appropriately tailored [which has resulted in] some [who] are in prison who shouldn’t be, others [who] are in for too long, and without a plan to educate, train, and reintegrate them into our communities." Relatedly, I am deeply disappointed that none of the other three living Presidents, all of whom have long and notable criminal justice track records (especially both President Bushes) are included in this important collection of "American Leaders" speaking out.

Particularly notable and disconcerting is the absence of anything in this collection by our most recent in former President, George W. Bush, especially in light of Bill Clinton's justifiable concerns about the importance of efforts to "educate, train, and reintegrate [former offenders] into our communities." As often highlighted on this blog (and in too few other places), President George W. called America "the land of second chance" in his 2004 State of the Union address while spotlighting prisoner re-entry issues and proposing "a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups."

In his important 2004 SotU speech, President Bush compelling advocated that "when the gates of the prison open, the path ahead should lead to a better life."  But now, more than a decade later, and thanks largely to the failings of both Congress and President Bush's successor in the Oval Office, there is still far too little attention given to the needs and challenges of former offenders.  President Bush highlighted 11 years ago that persons released from prison each year represented  "another group of Americans in need of help," but it seems only now have a number of other "American Leaders" gotten the message. 

April 28, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"Going Retro: Abolition for All"

The title of this post is the headline of this notable new and timely article authored by Kevin Barry now available via SSRN. Here is the abstract:

The opening of the twenty-first century has seen a flurry of death penalty repeals. This development is encouraging, but only partly so.  Amidst the cheers for abolition, there is an unfairness of the highest order: the maintenance of the death penalty for some, but not others, for no other reason than the date of their crimes.  State legislatures are repealing the death penalty prospectively only, and these states’ executive branches are leaving their prisoners on death row.  In New Mexico and Connecticut, a total of thirteen prisoners remain on death row after those states abolished the death penalty.

Some states, however, are “going retro.”  In 2012, California’s Proposition 34 would have applied retroactively, reducing over 700 death row prisoners’ sentences to life without parole (“LWOP”).  More states should attempt to pass retroactive death penalty repeals, but they are not doing so, for two reasons.  The first is political: legislators are not pursuing retroactive legislation because they do not have the votes.  The second reason is legal: legislators are not pursuing retroactive legislation because they believe that the separation of powers and state constitutional prohibitions on retroactive laws forbid it. These arguments are reasonable ones, and they reach far beyond the death penalty sphere — to retroactive crack sentencing laws and retroactive juvenile LWOP sentencing laws, among others.

This Article argues that neither the separation of powers nor state constitutional prohibitions on retroactive laws prohibits states from retroactively repealing their death penalties. While politics may prevent legislatures from pursuing retroactive repeal of the death penalty, the law should not.  As California’s 2012 repeal bill makes clear, “fairness, equality, and uniformity” demand retroactivity.  They demand abolition for all.

April 28, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, April 27, 2015

Interesting analysis of "Watersheds" in state collateral retroactivity review

Especially with the Supreme Court finally taking up the retroactivity of its 2012 Eighth Amendment ruling in Miller, I have been giving extra thought to the Supreme Court's Teague doctrine and jurisprudence.  Consequently, I found this new article on SSRN titled simply "Watersheds" of particular interest. The piece is authored by Dov Fox and Alex Stein, and here is the abstract:

Watershed doctrine governs the conditions under which a prisoner who has exhausted his appeals is entitled to retrial or even release based on a change in the rules of constitutional criminal procedure. Newly announced due process rules unavailable to him at trial or on direct review can provide a constitutional basis to reopen his guilty verdict or punishment.  The Supreme Court, however, has imposed strikingly demanding requirements for backdating any such rule to a finalized conviction or sentence.  It has since Teague v. Lane held that no new due process rule applies retroactively unless it is a “watershed” protection that profoundly enhances not only the accuracy of convictions across the board but also “our very understanding of the bedrock procedural elements.”

In the twenty-five years since Teague, the Court has explicitly refused to confer this watershed status on even a single new rule of criminal procedure among the dozens of major protections that it has announced.  Unsurprisingly, scholarly consensus casts watershed doctrine as exceptional, obscure, and insignificant.

This Essay breaks new ground in the law of retroactivity.  We use the “dynamic concentration” model of game theory to identify the important and unrecognized role that watershed doctrine plays in counteracting the structural undersupply of constitutional due process rules.  The Supreme Court maintains too small a caseload to scrutinize every state court decision or specify each demand of criminal procedure.  The Court’s inability to review more than a fraction of due process violations or to detail more than a fraction of due process directives ill equips it to rein in the punitive tendencies of state judges who owe their jobs to constituencies that tend to value crime prevention more than defendants’ rights.

Watershed doctrine mitigates this enforcement problem by creating an extreme, if low-probability, threat of repealing scores of finalized convictions.  By issuing a single new watershed rule, the Court can mandate sweeping retrials or release of state prisoners into the public.  This existential threat motivates state courts to venture beyond existing precedents and align the due process practices in their states with the potentially farther-reaching protections the Supreme Court might make retroactive in the future.  The watershed doctrine accordingly incentivizes state courts to sustain a constitutional safe harbor for state criminal procedures.

Confirmation of this enforcement theory comes from our comprehensive study of all 338 watershed decisions that state courts have issued over that doctrine’s quarter of a century between 1989 and 2014.  We find that a conspicuous proportion of these decisions — more than one in ten — demonstrably inflates the retroactivity rights of criminal defendants and that not one of these cases fails to accord watershed status to a rule that might qualify.

April 27, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Is US push for sentencing reform progressive enough to embrace progressive "day fines"?

The question in the title of this post is prompted by this notable New York Times article about fine punishment for speeding in Finland.  The piece is headlined "Speeding in Finland Can Cost a Fortune, if You Already Have One," and here are excerpts:

Getting a speeding ticket is not a feel­good moment for anyone. But consider Reima Kuisla, a Finnish businessman.  He was recently fined 54,024 euros (about $58,000) for traveling a modest, if illegal, 64 miles per hour in a 50 m.p.h. zone.  And no, the 54,024 euros did not turn out to be a typo, or a mistake of any kind.

Mr. Kuisla is a millionaire, and in Finland the fines for more serious speeding infractions are calculated according to income.  The thinking here is that if it stings for the little guy, it should sting for the big guy, too.  The ticket had its desired effect. Mr. Kuisla, 61, took to Facebook last month with 12 furious posts in which he included a picture of his speeding ticket and a picture of what 54,024 euros could buy if it were not going to the state coffers — a new Mercedes.  He said he was seriously considering leaving Finland altogether....

The Nordic countries have long had a strong egalitarian streak, embracing progressive taxation and high levels of social spending.  Perhaps less well known is that they also practice progressive punishment, when it comes to certain fines.  A rich person, many citizens here believe, should pay more for the same offense if justice is to be served. The question is: How much more?...

At the University of Helsinki, Jussi Lahti, 35, a graduate student in geography, said that he could understand why Mr. Kuisla was upset, but that he considered the principle of an equal percentage fair. And, he added, Mr. Kuisla “had a choice when he decided to speed.”

The size of Mr. Kuisla’s ticket nonetheless drew considerable attention here as television shows and newspapers debated the merits of Finland’s system, which uses a complex formula based on income to calculate an individual’s fines.  Some wondered whether the government should stop imposing such fines for infractions at relatively low speeds. Some suggested that a fine so big was really a form of taxation.  But the idea that the rich should pay heavier fines did not seem to be much in question. “It is an old system,” said Pasi Kemppainen, chief superintendent at the National Police Board. “It may lead to high fines, but only for people who can afford it.”

In fact, the Finnish “day fine” system, also in use in some other Scandinavian countries, dates to the 1920s, when fines based on income were instituted for all manner of lesser crimes, such as petty theft and assault, and helped greatly reduce the prison population. The fines are calculated based on half an offender’s daily net income, with some consideration for the number of children under his or her roof and a deduction deemed to be enough to cover basic living expenses, currently 255 euros per month.

Then, that figure is multiplied by the number of days of income the offender should lose, according to the severity of the offense.  Mr. Kuisla, a betting man who parlayed his winnings into a real estate empire, was clocked speeding near the Seinajoki airport.  Given the speed he was going, Mr. Kuisla was assessed eight days.  His fine was then calculated from his 2013 income, 6,559,742 euros, or more than $7 million at current exchange rates.

Someone committing a similar offense and earning about 50,000 euros a year, or $54,000, none of it capital gains, and with no young children, would get a fine of about 345 euros, or about $370.  Someone earning 300,000 euros ($322,000), would have to pay about 1,480 euros ($1,590).  When the “day fine system” was devised for petty crimes, Finland did not even have any speed limits on its roads. Those did not arrive until the 1970s....

Until he was issued the speeding ticket, Mr. Kuisla used his Facebook page largely to post pictures of his winning horses or the lobbies and bars of the hotels he owns.  But the ticket seemed to focus his attention on Finnish policies that he said discouraged entrepreneurs, apparently a reference to the country’s progressive tax system and its high inheritance taxes. High earners can face an income tax rate of more than 50 percent.  “Finland is now an impossible country to live in for people with a large income and wealth!” he posted on March 2.

But online comments in newspapers suggested a strong showing for the other side. “This says a lot about the times when the stinkingly rich can’t even take their fines for crimes, but are immediately moving out of the country.  Farewell, we won’t miss you,” said one post in The Helsingin Sanomat, a daily newspaper and website....

Mr. Kuisla’s $58,000 ticket is not even the most severe speeding ticket issued in recent years.  According to another daily newspaper, Ilkka, Mr. Kuisla himself got an even bigger fine in 2013 when he was going about 76 m.p.h. in a 50 m.p.h. zone.  That ticket was for 63,448 euros, about $83,769 at the time.  Bigger yet was the ticket issued to a 44-­year-­old Nokia executive in 2002, when he was caught blowing through Helsinki on his Harley motorcycle and was hit with a $103,600 fine, based on a $12.5 million yearly income.  

Both tickets were appealed and in the end reduced.  Usually, appeals are based on financial issues, such as a one­-time sale of stock that year. But judges have great leeway, experts said. Mr. Kuisla ended up paying 5,346 euros for the 2013 ticket.

Long-time readers know that I am a huge fan of economic sanctions, and I have long thought that the Scandinavian "day fine" approach to punishment for lower-level crimes to be much more fair and effective than short terms of incarceration. I think it is fair to claim (and perhaps complain) that these kinds of day fine operate more like taxes than like traditional punishments; whatever label is attached, I suspect that defendants (especially rich ones) drive much more carefully in jurisdictions where an infraction is likely to have a real financial bite. Among other potential benefits, a "day fine" approach to certain lower-level "quality of life" offenses might prompt law enforcement to concentrate more of their policing resources in richer rather than poorer neighborhoods.

Perhaps needless to say, I doubt the billionaires who support sentencing reform in the US on both the left (George Soros) and the right (the Koch brothers) are likely to get behind a progressive "day fine" approach to devising effective alternatives to prison. But maybe all the folks now protesting police abuses in Baltimore and elsewhere might consider urging police department to adopt such an approach to police discipline (with the monies, I would urge, going to victim restitution funds).

April 27, 2015 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (4) | TrackBack

Sunday, April 26, 2015

Arguments against death penalty abolition prevail in great Intelligence Squared debate

DownloadI have long been a fan of the Intelligence Squared debate series, which I often hear on my local NPR station (and which too often leads me to stay in my car longer than I had intended).  I was especially excited when I learned that the series was finally going to focus on the death penalty.  The live debate took place earlier this month, and this NPR link provides access to the 50-minute audio recording, as well as this account of the event (with my emphasis added):

The death penalty is legal in more than 30 states, but the long-controversial practice has come under renewed scrutiny after a series of botched executions in several states last year.

Opponents of capital punishment argue that the death penalty undermines the fair administration of justice, as wealth, geography, race and quality of legal representation all come into play, with uneven results.

But proponents of the death penalty believe capital punishment serves a moral and social purpose in American society. They argue that while the administration of the penalty is not perfect, improvements can be made in the justice system to address some opponents' concerns without doing away with the punishment altogether. Some people deserve to die, they say, for committing certain types of crime.

Two teams faced off over these questions in the latest event from Intelligence Squared U.S., debating the motion, "Abolish The Death Penalty." In these Oxford-style debates, the team that sways the most people to its side by the end is the winner.

Before the debate, 49 percent of the audience at the Kaufman Music Center in New York voted in favor of the motion, while 17 percent were opposed and 34 percent were undecided. After the event, 54 percent agreed with the motion and 40 percent disagreed, making the team arguing against abolishing the death penalty the winners of the debate.

For The Motion

Diann Rust-Tierney became the executive director of the National Coalition to Abolish the Death Penalty in 2004. With 30 years of experience in public policy and litigation advocacy, she manages the operations of NCADP and directs programs for the organization and its 100 affiliate organizations....

Barry Scheck is the co-founder and co-director, with Peter Neufeld, of the Innocence Project and a professor at the Cardozo School of Law. Known for landmark litigation that has set standards for forensic applications of DNA technology, he and Neufeld have shaped the course of case law nationwide, leading to an influential study by the National Academy of Sciences, as well as important state and federal legislation....

Against The Motion

Robert Blecker is a professor at New York Law School, a nationally known expert on the death penalty and the subject of the documentary Robert Blecker Wants Me Dead. After a brief stint prosecuting corruption as a New York special assistant attorney general, he joined New York Law School, where he teaches constitutional history and criminal law, and co-teaches death penalty jurisprudence with leading opponents....

Kent Scheidegger has been the legal director of the Criminal Justice Legal Foundation since 1986. A nonprofit, public interest law organization, CJLF's purpose is to assure that people who are guilty of committing crimes receive swift and certain punishment in an orderly and constitutional manner. Scheidegger has written over 150 briefs in U.S. Supreme Court cases....

I think it is fair to assert that both sides in this debate had a "dream team" arguing, and I also think it is very notable that an audience in New York City by its votes determined, essentially, that arguments against abolition of the death penalty are more compelling than argument for abolition. For that reason (and many others), anyone interested in the death penalty should find 50 minutes to listen to this terrific IS debate.

April 26, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9) | TrackBack

Wednesday, April 22, 2015

Is there a "growing movement against death penalty – on the right"?

The question in the title of this post is prompted by this notable new press article with this full headline: "Nebraska highlights growing movement against death penalty – on the right: Seventeen Republican lawmakers seek abolition of capital punishment in the state as Christians, conservatives and libertarians band together for change." Here are excerpts:

A growing coalition of Christian, fiscally conservative and libertarian lawmakers are pushing to repeal the death penalty in some of America’s reddest states. And after years of working against state-sponsored executions, historically a Democratic platform, some conservatives say they believe the efforts are gaining traction.

The push for reform was on full display last week in Nebraska, as 17 Republican lawmakers in the one-house legislature advocated for passage of abolition bill LB268. “I know many of you, when you went door to door, you said to the constituent you talked to: ‘You send me to Lincoln, [Nebraska,] and when I get down there I’m going to find government programs that don’t work, and I’m going to get rid of them,’” Senator Colby Coash told fellow lawmakers. “And that’s exactly what LB268 does … We can get justice without this method.”

The bill passed its first hurdle with a 30 to 12 vote in favor of repeal, potentially enough to override Republican governor Pete Ricketts’ veto threat. Two more successful votes are needed to send the bill to the governor’s desk, and there is strong opposition, including filibuster threats, to overcome. Still, conservative advocates said they believe it is one of the most promising developments in decades.

“We’re probably in the best position we’ve been in since the bill passed in 1979,” said Stacy Anderson, the conservative executive director of Nebraskans for Alternatives to the Death Penalty, about the last time the state’s legislature passed an abolition bill. “From the conservative standpoint, the death penalty fails on all of our core values.”...

Republicans are still the most likely group to support capital punishment, with 77% in support of the death penalty. Still, conservative activists point to the 10% decrease in Republican support over 20 years, growing support for life without parole as an alternative to the death penalty, and the issue’s low priority ranking among voters.

The most widely cited reasons for opposing the death penalty seem in line with some of the most fervent strains of American Republicanism: fiscal conservatism, pro-life principles and small government ideals. And with increasing scrutiny on states that continue to execute prisoners despite a shortage of lethal injection drugs, the issue appears poised to continue to attract attention.

“It’s a government program that risks innocent life, costs more than the alternative, and is certainly not about limited government,” said Marc Hyden, an outreach specialist with Conservatives Concerned About the Death Penalty. “When I’m first speaking, I think conservatives give me kind of a weird look,” said Hyden. “But about halfway through the presentation, it starts clicking with them – that this is a program that just doesn’t mesh with conservative ideals.”

The campaign has seen growing interest in red states such as Georgia, Kentucky, Kansas and Tennessee, both Hyden and abolitionists said.

In Montana, a fiercely conservative state, a death penalty abolition bill made it out of the House judiciary committee for the first time perhaps ever, according to death penalty abolition advocates there. “I was shocked,” Moore told the Missoulian. “I didn’t expect it to come out of committee.” At the time that the bill passed to the floor, a stunned Moore described it as having “a tiger by the tail”. The abolition bill failed in a vote on the house floor, but many see its progress out of the judiciary committee as nothing short of stunning. “We were very excited,” said Jennifer Kirby about the bill’s progress. “It’s about time.”

April 22, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, April 20, 2015

Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?

As highlighted by this new AP article, headlined "Bombing trial enters penalty phase amid life or death debate,"the real legal intrigue surrounding the capital trial of the Boston Marathon bombing is about to begin:

The guilt phase of Boston Marathon bomber Dzhokhar Tsarnaev's trial was considered a slam dunk for prosecutors, especially after his lawyers bluntly admitted during opening statements that he participated in the deadly 2013 attack. But the outcome of the next phase of the trial is much more difficult to predict. The same jury must decide whether Tsarnaev, 21, should be put to death or spend the rest of his life in prison. The penalty phase begins Tuesday in U.S. District Court.

Debate over whether Tsarnaev should get the death penalty intensified recently after the parents of Martin Richard, an 8-year-old boy who was killed in the bombings, urged federal authorities to consider taking death off the table in exchange for Tsarnaev spending the rest of his life in prison and giving up his rights to appeal....

A married couple who lost limbs in the attack also asked the U.S. Justice Department not to pursue the death penalty. "If there is anyone who deserves the ultimate punishment, it is the defendant. However, we must overcome the impulse for vengeance," Jessica Kensky and Patrick Downes said in a statement to the Globe Sunday....

Others have said they favor the death penalty for Tsarnaev. Liz Norden, whose two adult sons each lost a leg in the bombings, said nothing short of execution is warranted. "He destroyed so many families that day," she said. "I want the ultimate justice."

Legal experts differ on whether the pleas from victims will persuade the federal government to drop its bid for the death penalty. "If the Justice Department seriously takes into consideration the feelings of the family members in this case, they have every justification to take death off the table," said Robert Dunham, executive director of the Death Penalty Information Center.

But New York Law School professor Robert Blecker said the Justice Department has to consider the larger question of denouncing terrorism. "They'll go forward with it. It will not change the decision. Denunciation is a legitimate purpose," Blecker said....

During the penalty phase, the defense will continue to portray Tsarnaev's brother, Tamerlan, 26, as a domineering follower of radical Islam who convinced his then 19-year-old brother that America had to be punished for its wars in Muslim countries. Tamerlan died four days after the bombings when he was shot during a firefight with police and run over by Dzhokhar during a getaway attempt.

Prosecutors are expected to emphasize the brutality of the bombings by calling more survivors to testify. During the first phase, several survivors testified about devastating injuries, including lost limbs....

If even one juror votes against the death penalty, Tsarnaev will get a life sentence.

April 20, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (7) | TrackBack

"Local Cook County Prosecutors To Focus On Treatment Over Prison For Small-Time Drug Cases"

The title of this post is the headline of this notable local news story emerging today from Chicago.  Here are the details:

Cook County prosecutors were set to announce major changes in how they prosecute low-level drug cases, including sending more nonviolent drug offenders to treatment, rather than prison.

State’s Attorney Anita Alvarez was scheduled to announce reforms to how her office handles minor drug cases, including dismissal of all future misdemeanor marijuana cases. The move also is expected to cover how prosecutors handle cases involving small amounts of other drugs; including ecstasy, cocaine, and heroin. The program would be focused on defendants with less than three arrests or citations for misdemeanor drug charges.

The announcement comes on April 20, also known as “4-20” day, in reference to a term used by marijuana smokers as slang for “lighting up,” but officials said the timing of the announcement and the date were only coincidental.

Alvarez was expected to detail the new drug prosecution strategy Monday morning, as part of an effort to keep nonviolent repeat drug offenders out of jail, and instead treat such cases as a public health issue. A spokeswoman for Alvarez’s office said, defendants currently facing a Class 4 felony drug possession charge could be sentenced to up to 3 years in prison, and a $25,000 fine. Her proposed changes to drug prosecutions would mean those same defendants would be sent to treatment programs instead of prison.

The move could free up prosecutor and law enforcement resources. In Cook County, such Class 4 felony drug cases made up 25 percent of all felony prosecutions last year. It was not immediately clear when the reforms would go into effect, but the changes would not affect pending cases already in the system.

April 20, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Intricate federal criminal law statutory questions on SCOTUS docket this week

Most casual Supreme Court fans are surely looking ahead to next week's oral arguments in the same-sex-marriage and lethal injection cases.  But this week brings two other exciting and intricate cases before SCOTUS for federal criminal justice fans, as these SCOTUSblog brief summarizes reveal: 

Johnson v. US, No. 13-7120: Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act [and whether ACCA's residual clause is unconstitutionally vague].

McFadden v. US, No. 14-378: Whether, to convict a defendant of distribution of a controlled substance analogue -- a substance with a chemical structure that is “substantially similar" to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) -- the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.

Regular readers know that the Johnson case is getting a second argument this week after SCOTUS asked the parties to brief the constitutional issue it raised on its own after the first oral argument. And helpful Rory Little via SCOTUSblog provides these informative new posts with more on what can be expected in this week's arguments:

In addition, Garrett Epps has this extended new Atlantic piece discussing both Johnson and McFadden headlined "Too Vague to Be Constitutional: Two indecipherable criminal laws passed in the 1980s now face scrutiny at the Supreme Court."

April 20, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, April 15, 2015

"Database Infamia: Exit from the Sex Offender Registries"

The title of this post is the title of this notable new article by Wayne Logan available via SSRN. Here is the abstract:

Since originating in the early-mid 1990s, sex offender registration and community notification laws have swept the country, now affecting the lives of hundreds of thousands of individuals. The laws require that individuals provide, update and at least annually verify personal identifying information, which governments make publicly available via the Internet and other means.  Typically retrospective in their reach, and sweeping in their breadth, the laws can target individuals for their lifetimes, imposing multiple hardships.

This symposium contribution surveys the extent to which states now afford registrants an opportunity to secure relief from registration and community notification and examines the important legal and policy ramifications of the limited exit options made available.

April 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

"Trending Now: The Use of Social Media Websites in Public Shaming Punishments"

The title of this post is the title of this intriguing new piece authored by Lauren Michelle Goldman now available via SSRN. Here is the abstract:

This Note proposes that a social media shaming sanction might be an effective addition to the menu of public shaming punishments the judiciary already offers.  Section II of this Note lays the foundation of shaming punishments in America, giving an overview of their history and development.  Section III discusses the Ninth Circuit’s recent decision in Gementera, in which the court upheld a modern-day public shaming punishment, as well as other select cases that have upheld public shaming punishments that involve print media.

Section IV outlines the current scholarly debate surrounding the use of public shaming punishments.  Section V gives an overview of the presence of social media and Internet usage in today’s society, discusses a new trend among parents in which parents have begun to utilize social media to punish their children, and evaluates public shaming punishments via social media websites from the vantage point of various criminal law theories.  Finally, Section VI advocates for the inclusion of online social media public shaming punishments into the judiciary’s already expansive list of sentencing options, but with some limitations and guidelines.

April 15, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, April 14, 2015

Interesting recent Buckeye death penalty headlines (despite extended extended moratorium)

After Ohio Governor (and future GOP Prez candidate?) John Kasich and other executive officials put off all Ohio executions for the entire 2015 calendar year, I figured Ohio would not be make all that much death penalty news until at least 2016.  But, as these recent local headlines help highlight, an executive branch moratorium on executions does not stop others from taking about the death penalty in the Buckeye state:

April 14, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Senator Grassley again expresses interest in talking about federal criminal justice reform

Senator Charles Grassley is right now arguably the most significant and most important player in all on-going debates over federal sentencing and criminal justice reform.  As Chair of the Senate Judiciary Committee, Senator Grassley can (and seems eager to) block the advancement of any and every federal criminal justice reform bill that he does not personally favor.  

Consequently, even if the vast majority of Senators strongly support significant reforms to federal mandatory minimum sentencing provisions or to federal marijuana provisions, Senator Grassley can ensure— at least until 2017, and perhaps after that if the GOP retains control of the Senate — that federal reform bills do not even get a committee hearing, let alone a committee vote.   Indeed, even if the vast majority of 300 million Americans, and even if the vast majority of the 718,215 Iowans who voted for Senator Grassley in 2010, would strongly favor a reform bill, the bill is likely DOA if Senator Grassley himself is not keen on the bill's particulars.  Frustratingly, that is how our democracy now functions.

Bill Otis, whom I believe has Senator Grassley's ear and with whom he shares many sentencing views, predicted after the 2014 election that Senator Grassley's position as Judiciary Chair all but ensured that there would be almost no chance of significant federal sentencing reform until at least 2017.  But this new piece in Roll Call, headlined "Grassley Resistant to Criminal Justice Overhaul, but Says He’s Willing to Talk,"  provides at least of glimmer of hope that this old Senate dog might be open to some new sentencing tricks.  Here is an excerpt:

Grassley has made no bones about his passionate opposition to reducing mandatory minimum prison sentences, as proposed by Republican Sen. Mike Lee of Utah and Senate Minority Whip Richard J. Durbin of Illinois in the so-called Smarter Sentencing Act (S 1410). On the floor, Grassley has called rolling back such fixed sentences “dangerous,” “ill-conceived” and “indefensible.” Last year, he tried to gut a version of the bipartisan bill, which the Obama administration backs, with an amendment in committee.

Even so, Grassley told CQ Roll Call that he’s ready to start looking for common ground with the bill’s supporters. What’s been missing, he adds, is an invitation — from Obama, from the senators sponsoring the bill, from their staffs — from anyone willing to start a conversation. “First of all, nobody’s asked me even though for three months, including my speech last week, I said I would be glad to meet people about what we could possibly do because I’m open to some reform,” Grassley says.

Juvenile justice is among his top legislative priorities, and he has said he plans to co-sponsor a bill with Rhode Island Democrat Sheldon Whitehouse to reauthorize the 1974 Juvenile Justice and Delinquency Prevention Act. That law has not been reauthorized since 2002.

Grassley says he thinks there could be some reductions in mandatory minimums, but at the same time he wants to see increases in minimum sentences in other areas, such as child pornography and white-collar crime. He has also cited the need to prevent abuses in the forfeiture of civil assets, and to ensure that offenders receive fair representation. “It may just be time” to start criminal justice talks, Grassley says.

Long story short: anyone and everyone seriously interested in the passage of federal criminal justice reform anytime soon would be wise to invest considerable time and energy figuring out exactly what Senator Grassley is now willing to talk about.  Notably, as stressed in this prior post, Senator Grassley recently penned a strong commentary extolling the importance of transparency and accountability in the federal criminal justice system, and I urge advocates to highlight for Senator Grassley and others how statutory mandatory minimums and other laws that empower and enhance federal prosecutorial overreaches significantly undermine these important goals.

A few prior related recent posts:

April 14, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

'Cause all of me, loves all of you ... who are harmed by mass incarceration's imperfections

Images (1)The title of this post is my weak effort to merge John Legend's most popular song lyrics with his notable new campaign.  This AP story provides the details:

John Legend has launched a campaign to end mass incarceration. The Grammy-winning singer announced the multiyear initiative, FREE AMERICA, on Monday.  He will visit and perform at a correctional facility on Thursday in Austin, Texas, where he also will be part of a press conference with state legislators to discuss Texas' criminal justice system.

"We have a serious problem with incarceration in this country," Legend said in an interview.  "It's destroying families, it's destroying communities and we're the most incarcerated country in the world, and when you look deeper and look at the reasons we got to this place, we as a society made some choices politically and legislatively, culturally to deal with poverty, deal with mental illness in a certain way and that way usually involves using incarceration."

Legend, 36, will also visit a California state prison and co-host a criminal justice event with Politico in Washington, D.C., later this month.  The campaign will include help from other artists — to be announced — and organizations committed to ending mass incarceration.

"I'm just trying to create some more awareness to this issue and trying to make some real change legislatively," he said.  "And we're not the only ones. There are senators that are looking at this, like Rand Paul and Cory Booker, there are other nonprofits that are looking at this, and I just wanted to add my voice to that."

Legend's speech at the Academy Awards this year struck a chord when he spoke about mass incarceration.  He won the Oscar for best original song with rapper Common for "Glory" from the film "Selma."

The singer said an early victory for his campaign was the approval of Proposition 47 in California in November, which calls for treating shoplifting, forgery, fraud, petty theft and possession of small amounts of drugs — including cocaine, heroin and methamphetamines — as misdemeanors instead of felonies.  "Once you have that tag of a felony on your name, it's hard for you to do anything," Legend said. "Getting those reduced to misdemeanors really impacted a lot of lives and we hope to launch more initiatives like that around the country."

Perhaps "Weird Al" Yankovic or John Legend himself can pen a version of "All of Me" that could become the movement's theme song.

April 14, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

"Lex Mitior: Converse of Ex Post Facto and Window into Criminal Desert"

The title of this post is the title of this interesting and timely new piece on SSRN authored by Peter Westen. Here is the abstract:

In 2009 New Mexico prospectively repealed the death penalty. Three years later in 2012, New Mexico prosecuted a defendant for a capital murder that was committed before repeal, and it sought to subject him to the death penalty. If state prosecutors had prevailed with the jury, they would have secured the very kind of sentence — death — that state officials had been lauded in Europe for outlawing three years earlier.

A prosecution like New Mexico’s could never occur in Europe, and not merely because Europe has long outlawed the death penalty.  It could never occur because, in contrast to the law of most American jurisdictions, European states embrace a doctrine known as “lex mitior” (“the milder law”).  The latter doctrine is a counterpart to the ex post facto prohibition.  Both doctrines both concern retroactivity in criminal law, but they are the converse of one another.

The ex post facto doctrine prohibits retroactivity by prohibiting the state from prosecuting persons under criminal statutes that either retroactively criminalize conduct that was hitherto lawful or retroactively increase penalties for conduct that, while unlawful all along, was hitherto punishable less severely.  In contrast, lex mitior mandates retroactivity by mandating that criminal defendants receive the retroactive benefits of repealing statutes that either decriminalize conduct altogether or reduce punishments for it. After surveying laws in the United States regarding the retroactive effect of ameliorative repeals, the author addresses whether punishing offenders under harsher laws that obtained at the time of their conduct can serve consequentialist and/or retributive purposes of punishment.  He concludes that, although doing can be morally justified under limited circumstances, typically it is not — a conclusion that bears upon lex mitior’s proper scope, whether it consists of a binding norm (as it is among European nations), a nonconstitutional norm (as it presently is within the United States), or, when legislative intent is uncertain, a function of the rule of lenity.

April 14, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, April 13, 2015

Judge Jed Rakoff gives provocative speech on mass incarceration and the responsibility of lawyers and judges

A helpful reader alerted me to a notable speech (made available in full here by Bloomberg BNA) delivered by US District Judge Jed Rakoff as part of a Harvard Law School conference about lawyers' roles and responsibilities. Titled "Mass Incarceration and the 'Fourth Principle'," the full speech is a must read in full for all sentencing fans. Here are excerpts providing a taste of why:

I want to build my little talk around ... the responsibility of lawyers to help create a safe, fair, and just society even when legal issues, in the narrow sense, are not directly at stake.  I want to discuss that responsibility — which I will refer to here simply as the “Fourth Principle”— as it applies to lawyers and as it applies to judges...

Of course, even lawyers devoted to the Fourth Principle may have different views as to what societal issues are of such central concern that lawyers should feel a professional responsibility to speak out about them.  Nevertheless, I want to suggest one such issue, and I submit that it is one that is so deeply connected to the administration of law that [lawyers] would have no difficulty seeing it as an appropriate subject for bar association resolutions and the like: and that is the issue of mass incarceration in our country today.

But I should mention at the outset that the relative failure of organized bar associations and lawyers in general to speak out on this issue pales in comparison to the silence of the judges, who, I submit, have a special duty to be heard on this issue.  Indeed, the commentary to Canon Four of the Code of Conduct for United States judges expressly encourages federal judges to speak out on issues relating to the administration of justice in general and criminal justice in particular.  Yet, for too long, too many judges (including me) have been too quiet about an evil of which we are ourselves a part: the mass incarceration of people in the United States today.

The basic facts are not in dispute.  More than 2.2 million people are currently incarcerated in U.S. jails and prisons, a 500 percent increase over the past 40 years. Although the United States accounts for about 5 percent of the world’s population, it houses nearly 25 percent of the world’s prison population.  The per capita incarceration rate in the U.S. is one-and-a-half times that of second-place Rwanda and third-place Russia, and more than six times the rate of neighboring Canada.  Another 4.8 million Americans are subject to the state supervision imposed by probation or parole....

And whom are we locking up?  Mostly young men of color.  Over 840,000, or nearly 40 percent, of the 2.2 million U.S. prisoners are young African-American males.  Put another way, one in nine African-American males between the ages of 20 and 34 is currently in prison, and, if current rates hold, one third of all black men will be imprisoned at some point in their lifetimes.  Another 440,000, or 20 percent, of the 2.2 million U.S. prisoners are Hispanic males.

This mass incarceration — which also includes about 800,000 white and Asian males, as well as over 100,000 women (the great majority of whom committed non-violent offenses) — is the product of statutes that were enacted, beginning in the 1970s, with the twin purposes of lowering crime rates in general and deterring the drug trade in particular.  These laws imposed mandatory minimum terms of imprisonment on many first offenders.  They propounded sentencing guidelines that initially mandated, and still recommend, substantial prison terms for many other offenders.  And they required life-time imprisonment for many recidivists.  These laws also substantially deprived judges of sentencing discretion and effectively guaranteed imprisonment for many offenders who would have previously received probation or deferred prosecution, or who would have been sent to drug treatment or mental health programs rather than prison.

The unavoidable question is whether these laws have succeeded in reducing crime. Certainly crime rates have come down substantially from the very high rates of the 1970s and 1980s that gave rise to these laws.  Overall, crime rates have been cut nearly in half since they reached their peak in 1991, and they are now at levels not seen in many decades.  A simple but powerful argument can be made that, by locking up for extended periods the people who are most likely to commit crimes, we have both incapacitated those who would otherwise be recidivists and deterred still others from committing crimes in the first place.

But is this true?  The honest answer is that we don’t know.  And it is this uncertainty that makes changing the status quo so difficult: for, the argument goes, why tamper with what seems to be working unless we know that it isn’t working?

There are some who claim that they do know the answer to whether our increased incarceration is the primary cause of the our decline in crime.  These are the sociologists, the economists, the statisticians, and others who assert that they have “scientifically” determined the answer.  But their answers are all over the place....

Put another way, the supposition on which our mass incarceration is premised — namely, that it materially reduces crime — is, at best, a hunch. Yet the price we pay for acting on this hunch is enormous.  This is true in the literal sense: it costs more than $80 billion a year to run our jails and prisons.  It is also true in the social sense: by locking up so many young men, most of them men of color, we contribute to the erosion of family and community life in ways that harm generations of children, while creating a future cadre of unemployable ex-cons, many of who have learned in prison how better to commit future crimes.  And it is even true in the symbolic sense: by locking up, sooner or later, one out of every three African-American males, we send a message that our society has no better cure for racial disparities than brute force....

But why, given the great decline in crime in the last quarter century, have most of the draconian laws that created these harsh norms not been repealed, or at least moderated?  Some observers, like Michelle Alexander in her influential book The New Jim Crow, assert that it is a case of thinly-disguised racism.  Others, mostly of an economic-determinist persuasion, claim that it is the result of the rise of a powerful private prison industry that has an economic stake in continuing mass incarceration.  Still others blame everything from a continuing reaction to the “excesses” of the ‘60s to the never-ending nature of the “war on drugs.”

While there may be something to each of these theories, a simpler explanation is that most Americans, having noticed that the crime-ridden environment of the 1970s and 1980s was only replaced by the much safer environment of today after tough sentencing laws went into force, are reluctant to tamper with the laws they believe made them safer.  They are not impressed with academic studies that question this belief, suspecting that the authors have their own axes to grind; and they are repelled by those who question their good faith, since they perceive nothing “racist” in wanting a crime-free environment.  Ironically, the one thing that might convince them that mass incarceration is not the solution to their safety would be if crime rates continued to decrease when incarceration rates were reduced.  But although this has in fact happened in a few places (most notably, New York City), in most communities people are not willing to take the chance of such an “experiment.”

This, then, is a classic case of members of the public relying on what they believe is “common sense” and being resentful of those who question their motives and dispute their intelligence.  What is called for in such circumstances is leadership: the capacity of those whom the public does respect to point out why statutes prescribing mandatory minimums, draconian guidelines, and the like are not the key to controlling crime, and why, in any case, the long-term price of mass incarceration is too high to pay, not just in economic terms, but also in terms of societal values.  Until quite recently, that leadership appeared to be missing in both the legislative and executive branches, since being labeled “soft on crime” was politically dangerous.  Recently, however, there has been some small signs of progress. For example, in 2013, Attorney General Holder finally did away with the decades-old requirement that federal prosecutors must charge offenders with those offenses carrying the highest prison terms.  And in the last Congress, a bill to eliminate mandatory minimum sentences for non-violent drug offenders was endorsed not only by the Department of Justice, but also by such prominent right-wing Republican Senators as Ted Cruz and Rand Paul. On the other hand, prosecutors still have discretion to charge offenders with the most serious offenses available, and they usually do. And the aforementioned bill to modify the applicability of mandatory minimum sentences never reached a vote.

As for the organized bar, the American Bar Association, to its great credit, has increasingly spoken out about the dangers of mass incarceration and, most recently, has created a Task Force on Overcriminalization to suggest alternatives . But no other bar association, so far as I am aware, has openly denounced mass incarceration, called for outright repeal of mandatory minimum laws, supported across-the-board reductions of statutory and guideline imprisonment levels, or otherwise taken the kind of forceful positions that would cause the public to sit up and notice.

And where in all this stands the judiciary?  In some ways, this should be our issue, not just because sentencing has historically been the prerogative of judges, but also because it is we who are forced to impose these sentences that many of us feel are unjust and counter-productive.  It is probably too much to ask state judges in the 37 states where judges are elected to adopt a stance that could be characterized as “soft on crime.” But what about the federal judiciary, protected by lifetime tenure from political retaliation and, according to most polls, generally well-regarded by the public as a whole?

On one issue — opposition to mandatory minimum laws — the federal judiciary has been consistent in its opposition and clear in its message. As stated in a September 2013 letter to Congress submitted by the Judicial Conference of the United States (the governing board of federal judges), “For 60 years, the Judicial Conference has consistently and vigorously opposed mandatory minimums and has supported measures for their repeal or to ameliorate their effects.”  But nowhere in the nine single-spaced pages that follow is any reference made to the evils of mass incarceration; and, indeed, most federal judges continue to be supportive of the federal sentencing guidelines....

Several brave federal district judges — such as Lynn Adelman of Wisconsin, Mark Bennett of Iowa, Paul Friedman of the District of Columbia, and Michael Ponsor of Massachusetts, as well as former federal judges Paul Cassell and Nancy Gertner — have for some time openly denounced the policy of mass incarceration.  More recently, a federal appellate judge, Gerard Lynch of New York, expressed his agreement (albeit in an academic article) that “The United States has a vastly overinflated system of incarceration that is excessively punitive, disproportionate in its impact on the poor and minorities, exceedingly expensive, and largely irrelevant to reducing predatory crime.”

Perhaps the most encouraging judicial statement was made just a few weeks ago, on March 23, 2015, when Justice Anthony Kennedy — the acknowledged centrist of the Supreme Court — told a House subcommittee considering the Court’s annual budget that “This idea of total incarceration just isn’t working,” adding that it many instances it would be wiser to assign offenders to probation or other supervised release programs.  To be sure, Justice Kennedy was quick to tie these views to cost reductions, avoidance of prison overcrowding, and reduced recidivism rates — all, as he said, “without reference to the human factor.”  Nor did he say one word about the racially disparate impact of mass incarceration.  Yet still, his willingness to confront publicly even some of the evils of mass incarceration should be an inspiration to all other judges so inclined.

In many respects, the people of the United States can be proud of the progress we have made over the past half-century in promoting racial equality.  More haltingly, we have also made some progress in our treatment of the poor and disadvantaged.  But the big, glaring exception to both these improvements is how we treat those guilty of crimes. Basically, we treat them like dirt.  And while this treatment is mandated by the legislature, it is we judges who mete it out.  Unless we judges make more effort to speak out against this inhumanity, how can we call ourselves instruments of justice?  We may be the Third Branch, but we have yet to learn the Fourth Principle.

April 13, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (12) | TrackBack

Sunday, April 12, 2015

"Defending the Jury: Crime, Community, and the Constitution"

9781107650930The title of this post is the title of this notable new book authored by Professor Laura Appleman. Here is a brief description of the book via the publisher's website:

This book sets forth a new approach to twenty-first-century criminal justice and punishment, one that fully involves the community, providing a better way to make our criminal process more transparent and inclusive.  Using the prism of the Sixth Amendment community jury trial, this book offers fresh and much-needed ways to incorporate the citizenry into the procedures of criminal justice, thereby resulting in greater investment and satisfaction in the system.  It exposes the various challenges the American criminal justice system faces because of its ongoing failure to integrate the community's voice. Ultimately, the people's right to participate in the criminal justice system through the criminal jury — a right that is all too often overlooked — is essential to truly legitimizing the criminal process and ensuring its democratic nature.

Slate provides a helpful discussion of the book in this piece titled "No Deal: Should prosecutors be forced to have their plea bargains approved by juries?". Here is how the Slate piece starts:

One of the most reliably shocking facts about the American justice system is that 97 percent of criminal convictions are the result of plea bargain negotiations — and that jury trials, which many people think of as our society’s primary vehicle for determining a defendant’s guilt or innocence, have become vanishingly rare.

Why are plea deals so common?  Because a guilty verdict at trial tends to result in a much longer prison sentence than what a defendant can get if he or she agrees to a plea agreement.  For many people, this means admitting guilt on some but not all of the charges brought against them and waiving their right to a jury trial in exchange for a shorter sentence.  In many cases, this is an irresistible option, especially because, as the late Harvard Law School professor William Stuntz explained in his landmark book, The Collapse of American Criminal Justice, the sheer number of laws on the books makes it possible for prosecutors to charge people with so many crimes that the risk of going to trial and being convicted of all of them — as opposed to copping to just one or two — carries an unfathomable penalty.

There’s no question that the plea bargaining process allows our criminal justice system to function more efficiently than it would otherwise.  But critics see it as a coercive end run around the rights of the accused — especially the poor, who can’t afford lawyers and must rely on overworked public defenders to represent them — as well as a tool for overzealous prosecutors who prioritize winning over seeing justice done.  One of these critics is Laura Appleman, a professor at the Willamette University College of Law, and in her new book, Defending the Jury: Crime, Community, and the Constitution, she proposes an intriguing and original solution to the plea bargaining problem: Instead of letting prosecutors and defense attorneys hammer out plea deals behind closed doors and then get them rubber-stamped by judges, we should introduce regular people into the process — by convening a “plea jury.”

April 12, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Wednesday, April 08, 2015

Terrific review of possible USSC fraud guideline amendments (and DOJ's foolish opposition)

As detailed in this official notice, the US Sentencing Commission has a public meeting scheduled for tomorrow, April 9, 2015, at 1:00 pm (which is to be live-streamed here). The big agenda item of note for the meeting is the "Vote to Promulgate Proposed Amendments," and the most consequential amendments being considered concerns proposals to tweak § 2B1.1, the key guideline for fraud cases and many other white-collar offenses.  

I doubt the actual USSC meeting will be a must-see event, though I have urged my sentencing students to tune in.  (I plan to watch the meeting live on my iPad while also keeping an eye on another notable on-going event in Augusta, Georgia.)  But I have a must-read for anyone interested in white-collar federal sentencing: this fantastic Jurist commentary by Prof Randall Eliason titled "The DOJ Opposition to the Proposed Sentencing Guideline Amendments: Fighting the Wrong Battles in Fraud Cases." The entire commentary is a must-read (with lots of great links) for all federal sentencing fans, and here are a few choice excerpts:

On March 12, 2015, the US Sentencing Commission held a public hearing on its annual proposed amendments to the Federal Sentencing Guidelines. A number of the proposals concern the guideline for economic crimes and fraud cases, § 2B1.1. The amendments would reduce the recommended sentence in many such cases, particularly those involving large dollar amounts.

At the hearing the US Department of Justice opposed most of these amendments. DOJ argued that any move to reduce the sentences in fraud cases would be bad policy and would ignore the "overwhelming societal consensus" in favor of harsh punishment for these crimes.... But given the current realities of federal sentencing, DOJ is fighting the wrong battles....

At the March 12 hearing DOJ opposed the inflation adjustment; opposed the amendments concerning sophisticated means, intended loss, and fraud on the market; and supported the new enhancement based on causing victims substantial hardship. In other words, DOJ opposed virtually any amendment that could lead to lower sentences while supporting changes that could lead to higher ones. While this may seem predictable, I think it's a mistake.

DOJ was a lonely voice at the hearing and is definitely swimming against the tide by opposing the amendments. There is a widespread and growing belief that the sentences called for in major fraud cases have become excessive. More broadly, there is an emerging bipartisan movement in the country favoring criminal justice reform, including measures to reduce skyrocketing sentences (particularly for non-violent offenders) and our enormous prison population.

Law professor Frank Bowman provided some compelling hearing testimony tracing the history of the fraud guideline and demonstrating how various forces, both intentional and unintentional, have combined over the years to escalate the sentences in such cases dramatically. As he pointed out, given the large dollar values involved in some recent Wall Street frauds, it's relatively easy for a white-collar defendant to zoom to the top of the sentencing table and end up with a recommended sentence of 30 years or even life in prison—on a par with sentences recommended for homicide, treason, or a major armed bank robbery.

DOJ's resistance to virtually any amendment that might lead to lower sentences in economic crime cases appears short-sighted and runs the risk of looking reflexive. The Sentencing Commission has researched these questions for several years, gathering input from all stakeholders. The proposals seem reasonable and justified, and in fact are more modest than many had hoped.

It's hard to see what criminal justice purpose is being served by the escalating sentences in fraud cases. The prospect of prison does have a powerful and important deterrent effect that is unique to criminal law. But for a typical business executive it's hard to believe there's much additional marginal deterrent value in a possible twenty or twenty-five year sentence as opposed to, say, a fifteen year one.

But the more important fact is that legal developments have rendered DOJ's position in favor of higher guidelines sentences increasingly beside the point. It's been ten years since the Supreme Court ruled in US v. Booker that the mandatory sentencing guidelines were unconstitutional and the guidelines must be advisory only. Later in Kimbrough v. US the Court made it clear that a judge is free to depart from the recommended sentence if the judge disagrees with a policy decision underlying the guidelines.

In this legal environment, DOJ's push for higher guidelines looks like a struggle to keep the barn door closed when the horse left for greener pastures long ago. In the post- Booker/Kimbrough world, if judges believe a sentence called for by the guidelines is out of whack they will simply reduce it. For example, in the recent public corruption case involving former Virginia Governor Robert McDonnell, the judge called the recommended guidelines sentence of six to eight years in prison "ridiculous" and proceeded to sentence McDonnell to only two years.

There's evidence that the same thing is already happening in fraud cases. According to the Sentencing Commission's data, judges sentence below the recommended guidelines range in about 21 percent of fraud cases (not counting those cases where the government itself requests a reduced sentence). But in the Southern District of New York, home to Wall Street and many of the big-dollar fraud cases, judges depart below the guidelines in a whopping 45.6 percent of such cases. It does no good for DOJ to continue to push for extremely high guidelines numbers only to have judges ignore the guidelines and impose the lower sentences that they feel are just and reasonable.

DOJ's approach is worse than futile, it's counter-productive. The more that judges come to regard the guidelines as calling for inappropriate sentences, the more comfortable they may become not following them. This could lead to more widespread departures from the guidelines not merely in fraud cases but in cases across the board, accelerating a deterioration in the force and influence of the guidelines that so far has been held relatively in check since Booker.

April 8, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, April 07, 2015

"What’s the right way to compensate someone for decades of lost freedom?"

The question in the title of this post is the subheadline of this new lengthy New Yorker article about the aftermath of wrongful convictions.  Here is an excerpt:

One of the earliest arguments for financial compensation for the wrongly incarcerated came in 1932, from the Yale law professor Edwin Borchard.  In an influential book called “Convicting the Innocent: Sixty-five Actual Errors of Criminal Justice,” Borchard wrote, “When it is discovered after conviction that the wrong man was condemned, the least the State can do to right this essentially irreparable injury is to reimburse the innocent victim, by an appropriate indemnity for the loss and damage suffered.”  He noted, “European countries have long recognized that such indemnity is a public obligation.”  But it would be many years before the United States began puzzling through what constituted an “appropriate indemnity.”  It wasn’t until the first DNA exoneration, in 1989, that most states began to seriously consider compensation.

There is still no consensus about the value of lost time.  Missouri gives exonerees fifty dollars a day for time served, California twice that much.  Massachusetts caps total compensation at half a million dollars.  In Maine, the limit is three hundred thousand; in Florida, it’s two million.  The variation is largely arbitrary.  “If there’s a logic to it, I haven’t seen it,” Robert J. Norris, a researcher at SUNY Albany who has studied compensation statutes, told me.  In Wisconsin, no matter how long an exoneree has served, the state will pay no more than twenty-five thousand dollars — the same figure that its legislators established in 1979.  “They just never changed it,” Norris said. “They even amended their statute in 1987, but they didn’t change the amount.”  Most states levy taxes on payment.  Twenty states have no compensation statutes at all.

Fifteen hundred and seventy-five people have been exonerated in the U.S.  The best off are those whom Brandon Garrett, a professor at the University of Virginia School of Law who has written extensively on post-conviction litigation, describes as “the ones that win the tort lottery.”  These are exonerees who seek compensation through the courts, arguing that their fundamental civil rights were violated by the police or by prosecutors.  (The same legal principle is at issue in federal suits brought by people who have been shot by the police.)  In such cases, the potential damages are unlimited.  But the standard of proof is high.  “Police officers have qualified immunity,” Garrett told me.  “They can violate your constitutional rights — reasonably but not egregiously.”

April 7, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

Wednesday, April 01, 2015

"A Republican Governor Is Leading the Country's Most Successful Prison Reform"

The title of this post is the headline of this notable new piece from The New Republic.  Here are excerpts:

During his second inaugural address this past January, Georgia Governor Nathan Deal shared the story of Sean Walker. After serving 12 years of a life sentence for murder, Walker was paroled in 2005 and began working in the governor’s mansion while in a state transitional center. At the time of Deal’s address, Walker was working for Goodwill as a banquet catering sales coordinator and was nominated for Goodwill International Employee of the Year. As of January, Walker was planning to take college courses with the hope of becoming a counselor.

Deal, who got to know Walker at the governor’s mansion, shared the story to underscore his own “message to those in our prison system and to their families: If you pay your dues to society, if you take advantage of the opportunities to better yourself, if you discipline yourself so that you can regain your freedom and live by the rules of society, you will be given the chance to reclaim your life.” He continued, “I intend for Georgia to continue leading the nation with meaningful justice reform.”

That last sentence could seem at best like optimism, and at worst like hyperbole. However, one could reasonably argue that Georgia is doing more to reform its criminal justice system than any other state in the country — from sentencing to felon employment after release to juvenile detention.

Over the last four years, mandatory sentencing minimums have been modified, and judges’ discretion in sentencing has been expanded. The adult prison population has been given enhanced access to educational resources, including a program that enables two charter schools in the state to go into prisons to teach inmates, and those participating earn a high school diploma instead of a GED. (Studies suggest that some recipients of a GED tend not to fare any better in employment prospects than high school dropouts do.)

In addition, inmates with felonies applying to work for the state no longer have to check a box on their job applications that discloses their criminal histories and would often disqualify them from being considered for a job from the outset. “We banned the box,” said Deal, “It is not going to affect them getting an interview.” The state has also invested $17 million into measures aimed at reducing recidivism and rehabilitating low-risk, nonviolent offenders — including expanding accountability courts like those for drug use and DUIs, and funding community-based programs that have already proven to be more cost-effective than a prison sentence and are designed to reduce crime in the long run....

Some, like Vikrant Reddy, a senior policy analyst at Right on Crime and at the Texas Public Policy Foundation’s Center for Effective Justice, label Georgia’s criminal justice reforms conservative because they are saving the state millions, putting them in line with conservative fiscal values. Others, like Alison Holcomb, the national director of ACLU’s Campaign to End Mass Incarceration, call the reforms expansive for their holistic agenda—with improving educational and re-entry opportunities for inmates at the top of the list. The reforms have been called innovative, though some argue that it isn’t the reform initiatives themselves, so much as the way they’re being applied together that is unprecedented.

April 1, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

"Plea Bargaining and the Substantive and Procedural Goals of Criminal Justice: From Retribution and Adversarialism to Preventive Justice and Hybrid-Inquisitorialism"

The title of this post is the headline of this notable new article by always interesting Christopher Slobogin. Here is the abstract:

Plea bargaining and guilty pleas are intrinsically incompatible with the most commonly-accepted premises of American criminal justice — to wit, retributivism and adversarialism. This article argues that the only way to align plea bargaining with the substantive and procedural premises of American criminal justice is to change those premises. It imagines a system where retribution is no longer the lodestar of criminal punishment, and where party-control of the process is no longer the desideratum of adjudication.

If, instead, plea bargaining were seen as a mechanism for implementing a sentencing regime focused primarily on individual crime prevention rather than retribution (as in the salad days of indeterminate sentencing), and if it were filtered through a system that is inquisitorial (i.e., judicially-monitored) rather than run by the adversaries, it would have a much greater chance of evolving into a procedurally coherent mechanism for achieving substantively accurate results.

April 1, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, March 29, 2015

"Federal Sentencing 'Reform' Since 1984: The Awful as Enemy of the Good"

The title of this post is the headline of this notable new article by Michael Tonry now available via SSRN. Here is the abstract:

The federal sentencing system was conceived in one era and delivered in another. When the first bills that culminated in passage of the Sentencing Reform Act of 1984 were introduced, they aimed at reducing the worst excesses of indeterminate sentencing and achieving greater fairness, consistency, equality, accountability, and transparency in sentencing federal offenders. The overriding goal was reduction of unwarranted racial and other disparities.

In the different political climate of the mid-1980s the federal sentencing commission instead sought to achieve greater rigidity and severity and to respond to the law-and-order policy preferences of the Reagan administration and the Republican-controlled US Senate. Probation, formerly the sentence of half of convicted federal offenders, was nearly eliminated as a stand-alone punishment. Lengths of prison sentences increased enormously. After the federal guidelines took effect, buttressed by a plethora of mandatory minimum sentence laws, the growth of the federal prison population far outpaced that of the states and the federal system became the extreme example nationally and internationally of the dangers of politicization of crime policy. The political climate may be changing and the federal system may change with it. Only time will tell.

March 29, 2015 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, March 28, 2015

Notable effort by "World’s Worst Mom" to take on sex offender registries

This new Salon piece provides an interesting Q&A with notable author who has become famous for criticizing overprotective parenting and who is now criticizing what she sees as ineffective sex offender registries.  The piece is headlined "Stop the sex-offender registry panic: 'A lot of those dots on the map would never hurt your kids'," and here is how the Q&A is introduced:

Lenore Skenazy came to fame for letting her 9-year-old son ride the New York subway home by himself.  Or rather, she came to fame by letting him ride the subway home alone and then writing about it for the New York Sun.

The piece led to an outcry — she was dubbed “America’s worst mom” — which, of course, meant that the essay had to become a book: “Free-Range Kids, How to Raise Safe, Self-Reliant Children (Without Going Nuts With Worry).”  In the five years since its publication, the book has inspired a movement among parents who want to give their children the freedom to do things like walk home from school alone.  It’s a backlash to our age of “helicopter” and “bubble wrap” parenting. (If you suspect these monikers are exaggerations, consider that a Skenazy devotee recently had five police cars arrive at his house after his 10- and 6-year-old were seen walking alone.)  Now Skenazy has a show on the Discovery Life channel, “World’s Worst Mom,” which sees her swooping into homes and coaching overprotective parents in a style reminiscent of the ABC reality-TV show “Suppernanny.”

Recently, Skenazy has taken on a new, albeit related, cause: reform of the sex offender registry. Clearly, this lady is not afraid of controversy. On Sunday, she held a “Sex Offender Brunch” at her house to introduce “her friends in the press to her friends on the Registry.” One of her guests was Josh Gravens, who at age 12 inappropriately touched his 8-year-old sister and landed on the registry as an adult.... The materials accompanying her press release contend that the sex offender registry, which was created to “let people identify dangerous individuals nearby…has failed to have any real impact on child safety, and may actually do more harm than good.”  

She’s effectively flinging open the closet door and saying, “See? There’s no boogeyman in there” (or, if you will, flipping on the lights to offer assurance that the “monster” in the corner is actually just a lamp that made some mistakes when it was younger and means no harm).  This is entirely consistent with her “Free-Range Kids” activism, but she’s taking it a step further now, moving beyond just squashing parental fears about stranger danger to helping those who have been unfairly labeled as dangerous strangers.

March 28, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, March 25, 2015

You be the judge: what federal sentence for modern sheriff playing Robin Hood?

ImagesIn 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:

March 22, 2015 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

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.

March 22, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (6) | TrackBack

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.

March 20, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

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:

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.

March 18, 2015 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

"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:

March 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

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:

March 14, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

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.

March 10, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

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.

March 10, 2015 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (21) | TrackBack

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.

Some related posts (from both SL&P and MLP&R):

March 8, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, March 07, 2015

California voters through Prop 47 help fix prison crowding problems plaguing state for decades

Images (5)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:

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