Monday, August 22, 2016
"Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair"
The title of this post is the headline of this recent Medium commentary authored by Akiva Freidlin and Emi Young. Here are excerpts:
As recent graduates of Stanford Law School who work on behalf of low-income people affected by our criminal justice system, we have been closely attuned to the Brock Turner sexual assault case. We recognize the urgency of feminist-led reforms to rape law, and of efforts to address and prevent sexual violence, but the misguided campaign to recall Judge Aaron Persky advances neither goal. Instead, the recall proponents have used misleading arguments to inflame the perception that Judge Persky imposes unfair sentences depending on a defendant’s race and class. These distortions misdirect long-overdue public outrage over the state of America’s criminal justice system to support Persky’s recall, while threatening to make the system less fair for indigent defendants and people of color.... In July, the recall campaign began drawing misleading comparisons between Turner and a Latino man named Raul Ramirez, whose case was overseen by Judge Persky. The campaign claims that Ramirez, a low-income person of color, received a three-year sentence for “very similar crimes,” proving that Judge Persky has “shown bias.” But there are two crucial legal differences between the cases, which render the comparison meaningless....
Ramirez received a three-year sentence as part of a negotiated plea deal between his attorney and the prosecutor, so Judge Persky had no discretion to give him a lesser sentence.... [And] Ramirez and Turner were charged with crimes that are treated differently under the law. Ramirez received a prison sentence because the District Attorney charged him under a statute that absolutely requires it.... These realities explain the differences between Brock Turner’s sentence of probation and Raul Ramirez’s three-year prison term — not the recall campaign’s unsupported claims of judicial bias....
Now the campaign has begun to publicize a misleading barrage of claims about another plea bargain, using rhetoric that undermines hard-won reforms to immigration policy. In this case, a defendant named Ming Hsuan Chiang pleaded guilty to a domestic violence charge in exchange for a sentence that critics deride as being too lenient. The facts in this case, and the injuries to the victim, are upsetting — but once again, as in the Ramirez case, Judge Persky approved a sentence recommended by the District Attorney’s office, in fulfillment of the prosecution’s agreement with Chiang’s attorney. Nevertheless, the campaign claims that the sentence somehow provides evidence that Persky has “shown bias.”
One of the recall campaign’s main proponents — Professor Michelle Dauber, who teaches at our law school — has also pointed to the plea bargain’s consideration of Chiang’s immigration status as a sign that Judge Persky is somehow unacceptable as a judge.... This insinuation turns law and policy on its head. For non-citizens, being convicted of even a relatively minor crime may trigger federal immigration penalties such as mandatory detention, deportation, and permanent separation from close family . Addressing harmful and unjust “crimmigration” penalties has been a top priority of immigrants rights advocates, especially here in California, where one out of four residents is foreign-born....
Our criminal system is deeply unjust, but attributing these problems to Judge Persky is a mistake — and the effort to recall him only harms less privileged defendants. The false personal accusations against Judge Persky distract from real understanding of structural inequalities. In Brock Turner’s case, the probation department’s recommendation against prison weighed specific legal factors that, while putatively neutral, often correspond to race and class. For instance, consideration of a defendant’s past criminal record tends to benefit middle-class whites like Turner, who have never been subjected to the dragnet policing and “assembly-line justice” that leave young men of color with sentence-aggravating prior convictions. Similarly, for Turner, the loss of valuable educational opportunities was seen as mitigating the need for greater punishment, whereas for less privileged defendants, institutional barriers — like disciplinary policies that have created a “school-to-prison pipeline” — impede access to those opportunities in the first place. The time and money being spent to remove Persky from the bench will not address these dynamics or help untangle the web of policies that perpetuate inequality along racial and class lines.
Here in California, voters have finally begun to remedy the unintended and disparate effects of the 1993 “Three Strikes” ballot initiative and other mandatory sentencing laws, by permitting the discretionary re-sentencing of people convicted under these schemes. By sending the message that unpopular but lawful decisions may lead to a recall, the campaign threatens the sole mechanism for individualized consideration of mitigating circumstances.
This will only make it harder for low-income defendants and those who advocate for them.... Those effects are not merely speculative. As shown in ten empirical studies analyzed by the Brennan Center for Justice, judges impose harsher sentences when pressured by elections, and some studies find that these effects are concentrated on defendants of color. Holding a recall election out of frustration with Turner’s lawful sentence will only exacerbate these problems. As a prominent Santa Clara County judge has explained, a recall will “have trial judges looking over their shoulders, testing the winds before rendering their decisions.”...
Even in anger, the public must take a hard look at the rationale and likely effect of recalling Judge Persky. By stoking public anger with misleading claims, the recall campaign encourages a short-sighted response without accounting for the actual sources of structural injustice, or the consequences to those already burdened by inequality.
Some prior related posts:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
- California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
August 22, 2016 in Celebrity sentencings, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)
Sunday, August 21, 2016
After court reversal of broader order, Virginia Gov to restory voting rights to 13,000 former felons on a "case-by-case" basis
This Washington Post article, headlined "Virginia’s McAuliffe to announce restoration of voting rights to 13,000 felons," report on the latest executive clemency move by a Governor eager to restore voting right after getting in trouble with his state's Supreme Court following his first bold effort. Here are the details and context:
Gov. Terry McAuliffe will announce Monday that he has restored voting rights to 13,000 felons on a case-by-case basis after Republicans and state Supreme Court justices last month stopped his more sweeping clemency effort.
McAuliffe’s planned action, confirmed by two people with knowledge of it, comes about a month after the Supreme Court of Virginia invalidated an executive order the Democratic governor issued in April. With that order, McAuliffe restored voting rights to more than 200,000 felons who had completed their sentences. McAuliffe said his original order would move Virginia away from a harsh lifetime disenfranchisement policy that hits African Americans particularly hard.
Republicans, incensed that it covered violent and nonviolent offenders alike, said the move was really a bid to add Democrat-friendly voters to the rolls ahead of November’s presidential elections, when the governor’s close friend and political ally, Hillary Clinton, will be on the ballot. Republicans also found the McAuliffe administration had mistakenly restored rights to 132 sex offenders still in custody and to several convicted murderers on probation in other states.
Contending that the governor had overstepped his authority by restoring rights en masse rather than case by case, GOP legislative leaders took him to court and won. Since 13,000 of the 200,000 felons had already registered to vote, the court ordered the state to once again put their names on its list of banned voters.
Immediately after that ruling, McAuliffe vowed to use an autopen to individually sign orders restoring rights. He promised to do the first 13,000 within a week and all 200,000 within two. “By the end of this week, I will have restored the rights of all 13,000,” McAuliffe declared last month.
Since then, the McAuliffe administration has acknowledged unspecified holdups but declined to provide a new timetable for restoring rights. The first hint came Friday, with the release of McAuliffe’s official schedule. At noon Monday, it said, he will appear at the Civil Rights Memorial on Capitol Square “to make major restoration of rights announcement.” A McAuliffe spokeswoman, Christina Nuckols, declined to provide more information.
McAuliffe will announce that he has restored voting rights to the 13,000 felons, making them free to register once again, according to the two people, who spoke on the condition of anonymity because they were not authorized to disclose his plans. McAuliffe also will lay out his plans for restoring rights to the remainder of the 200,000. A substantial majority of Virginians approve of McAuliffe’s original effort to restore felon rights, although they are closely split on his motivations, according to a new Washington Post poll....
Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia, said she would cheer another restoration plan — particularly one that restores rights before October, the registration deadline for voting in November. “We think it’s the right thing to do, and we’re hopeful it will get done in time for people to be able to register before the deadline,” she said.
Del. Robert B. Bell (R-Albemarle), a 2017 candidate for state attorney general who has led the charge against McAuliffe’s order, said he would watch any new restoration efforts closely because of the problems with the original order. “Given that his first order was unconstitutional and included a noncitizen sex offender in Peru, we will certainly want to review whatever he does on Monday very carefully,” Bell said.
Prior related posts:
- Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
- Virginia Gov explains his big decision to use his clemency power to restore franchise
- Lots of discussion of felon disenfrachisement after Virginia Gov boldly restores voting rights
- Virginia Republicans go directly to state Supreme Court to try to undo Gov's clemency order restoring vote to former felons
- Split Virginia Supreme Court deems unconstitutional mass effort by Gov to restore felon voting rights
Saturday, August 20, 2016
Notable academic pitch: "Don’t end federal private prisons"
Sasha Volokh has this interesting lengthy commentary explaining his negative response to the announcement this past week (discussed here) that the Justice Department plans to end its use of private prisons. I recommend the full piece (with all its links) for anyone interested in a serious understanding of modern prison policies and practices. Here is how it gets started:
Yesterday, the DOJ announced that it would gradually end its use of private prisons. You can read the memo by Deputy AG Sally Yates here. She writes: “I am directing that, as each contract [with a private prison corporation] reaches the end of its term, the Bureau [of Prisons] should either decline to renew that contract or substantially reduce its scope in a manner consistent with the law and the overall decline of the Bureau’s inmate population.”
Why? The Yates memo says: “Private prisons . . . compare poorly to our own Bureau facilities. They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security. The rehabilitative services that the Bureau provides, such as educational programs and job training, have proved difficult to replicate and outsource — and these services are essential to reducing recidivism and improving public safety.”
This is unfortunate, for two reasons.
First, Yates seems to be exaggerating what empirical studies tell us about private vs. public prison comparisons. They do save money (though how much is a matter of dispute). And they don’t clearly provide worse quality; in fact, the best empirical studies don’t give a strong edge to either sector. The best we can say about public vs. private prison comparisons is a cautious “We don’t really know, but the quality differences are probably pretty minor and don’t strongly cut in either direction.” The Inspector General’s report doesn’t give us strong reason to question that result.
Second, even if all the bad things people say about private prisons were true, why not pursue a “Mend it, don’t end it” strategy? there’s a new trend in corrections to develop good performance measures and make payments contingent on those performance measures. If the private sector hasn’t performed spectacularly on quality dimensions to date, it’s because good correctional quality hasn’t been strongly incentivized so far. But the advent of performance-based contracting has the potential to open up new vistas of quality improvements — and the federal system, if it abandons contracting, may miss out on these quality improvements.
Just some (of many) prior posts about private prisons:
- Highlighting the lowlights of the DOJ Inspector General report of federal private prisons
- Justice Department says it will end use of private prisons
- "Private Prisons and the Marketplace for Crime"
- "Internalizing Private Prison Externalities: Let's Start with the GED"
- Mother Jones devotes issue to reporter's four months working as a private prison guard
- "Private Prisons, Public Functions, and the Meaning Punishment"
- New ACLU report critical of private prisons
- "Too Good to be True: Private Prisons in America"
- "Hustle and Flow: Prison Privatization Fueling the Prison Industrial Complex"
- "International Trends in Prison Privatization"
- Notable review of Kentucky's (now-ending) experiences with private prisons
Wednesday, August 17, 2016
Federal district judge assails prosecutors for not seeking more prison time for cooperators in government corruption cases
This local article from New Jersey, headlined "Judge blasts U.S. attorney during sentencing of Guttenberg contractor in theft," reports on a federal judge expressing concern that federal prosecutors are being too soft in sentencing recommendations in a notable white-collar setting. Here are the details:
A federal judge repeatedly criticized the U.S. Attorney's Office in Newark during a hearing Wednesday, scolding prosecutors for seeking light sentences -- sometimes with no prison time -- for people who plead guilty to corruption and related offenses.
Before sentencing a Guttenberg contractor who conspired with Union City officials to steal federal housing funds, U.S. District Judge William H. Walls spent several minutes upbraiding the U.S. Attorney's Office for a "ridiculous" pattern of bringing corruption cases and then seeking lenient sentences for defendants who plead guilty.
"That is so ridiculous it makes no sense in the context of true law enforcement," Walls said from the bench. "This is sheer legal nonsense." "If you swindle the government, regardless of your status, you should go to jail," he added.
Despite his protests, Walls agreed in the end with prosecutors, who had filed motions to avoid mandatory sentencing guidelines, and sentenced the defendant in Wednesday's case to three years of probation instead of prison.
Walls, a senior judge appointed by President Bill Clinton, is also presiding over the corruption trial of U.S. Sen. Robert Menendez. Attorneys for Menendez, D-Paramus, deny the charges and have sought to quash the indictment. Justice Department officials in Washington are handling that prosecution, not the U.S. Attorney's Office in Newark.
U.S. Attorney Paul Fishman has made corruption cases a hallmark of his tenure and his office is prosecuting Bill Baroni and Bridget Anne Kelly, two former associates of Governor Christie's who have been implicated in the George Washington Bridge lane-closure case. Christie, who was U.S. attorney before Fishman, also made corruption cases a highlight of his term.
Since President Obama appointed him in 2009, Fishman has secured convictions for several top officials including the former chairman of the Bergen County Democratic Organization, Joseph Ferriero; a former Trenton mayor, Tony Mack; and the former chairman of the Port Authority of New York and New Jersey, David Samson, who is also a former New Jersey attorney general.
A spokesman for Fishman, in response to Walls's comments, noted that defendants who cooperate with prosecutors are entitled to "some consideration" at sentencing. “It is firmly rooted in our system of justice that a defendant who admits his own guilt and cooperates in the government's investigation or prosecution of criminal conduct is entitled to some consideration at the time of sentencing," said Fishman spokesman Matthew Reilly. "It is the prosecution's responsibility to bring that information to the attention of the court, and the court has the discretion to determine how much weight to give it.”
Darren Gelber, a lawyer at the Wilentz, Goldman and Spitzer firm and a former president of the Association of Criminal Defense Lawyers of New Jersey, said "Judge Walls has a reputation of being a tough sentencer."
"I'm sure he like others has become increasingly frustrated with the perception that corruption is all too prevalent in our state," said Gelber, who was not involved in Wednesday's case.
The U.S. Attorney's Office charged that Leovaldo Fundora, the owner of Falcon Remodeling of Guttenberg, conspired with two public officials in Union City to steal federal housing funds. The two Union City officials instructed Fundora to collude with two other businesses, which are unnamed in court papers.... Prosecutors estimated losses from the scheme between $120,000 and $200,000.
"I deeply regret what I have done," Fundora told the court as his wife and daughter sat behind him. "I know it's going to take a long time to get my reputation back, but I will try my best." His attorney, Raymond Flood, said Fundora was a Cuban immigrant who had been working since he was 12 years old. "He's been a criminal for four years," Walls noted, "four years that he swindled the government."
Fundora pleaded guilty in 2013 and his theft conviction carried a maximum sentence of 10 years and a $250,000 fine. At Fundora's sentencing hearing Wednesday, prosecutors recommended a much lighter sentence and Walls, despite his critical comments, agreed. The U.S. Attorney's Office filed what is known as a "5K1.1" motion, asking the judge to depart from the federal sentencing guidelines to impose a lighter punishment on Fundora. Walls sentenced Fundora to three years of probation, ordered him to pay $73,753 in restitution, and imposed a $2,000 fine.
"This is absolutely ridiculous and I will not do it again," Walls told the assistant U.S. attorney handling the case, Barbara Llanes. Walls said businesses that win contracts from government agencies should hold themselves to a higher standard. He suggested the U.S. Attorney's Office was more interested in getting favorable conviction statistics than pursuing tough punishments. "The society is being swindled, and your office seems to care about notching wins," the judge told Llanes.
Responding to Walls's questions, Llanes noted that the two Union City public officials -- Johnny Garces and Washington Borgono, who both pleaded guilty -- have not been sentenced. Prosecutors would not file "5K1.1" motions for them, she added.
August 17, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0)
Tuesday, August 16, 2016
"Want to Stop Gun Violence? End The War On Drugs"
The title of this post is the title of this notable commentary by Jay Stooksberry that backs up an effective argument with lots of helpful links to support his claims. Here are excerpts (with links from the original):
Every December 5th, American beer, wine, and spirit enthusiasts celebrate Repeal Day. It was on this day in 1933 that the United States officially passed the 21st Amendment, effectively ending the failed “noble experiment” known as Prohibition. This was not only a good day for liberty and libations; it also marked the end of a violent era in American history.
The transport and sale of illicit booze became a prolific criminal enterprise backed by well-armed, violent gangs. The result: a homicide rate in the United States that steadily climbed between 1920 and 1933. In addition, the rise of “victimless crimes” — namely, consumption or possession of alcohol — added to the already overburdened judicial system. Furthermore, alcohol consumption — what Prohibition laws sought to minimize — actually increased nearly 70 percent.
To call Prohibition a failure would be an understatement. Repealing Prohibition destroyed the monopoly on alcohol maintained by organized crime. Disempowering the black market produced a noticeable decline in the homicide rate. In fact, homicides continued to diminish each year for eleven years straight.
Fast forward 82 years, and we are in the midst of Prohibition 2.0. This time we call it the “War on Drugs,” and its impact is even more deadly. If concerned citizens want to get serious about reducing gun violence, then they should be encouraged to focus less on policies that are ineffective — “assault weapons” bans, gun buyback programs, and outright confiscation — and focus more on ending our failed, four-decade long, overly-militarized, trillion-dollar battle against narcotics.
Let’s put gun violence into perspective. There is no doubt that gun violence is a problem. Guns are used in nearly three-fourths of all American homicides. What typically brings gun control to the forefront of our political dialogue is the recurring tragedy of a mass shooting. However, mass shootings receive a disproportionate amount of media attention considering how much they actually contribute to our national homicide rate.
According to Mass Shooting Tracker, in 2014, mass shooting incidents resulted in the deaths of 383 people—about 3% of total gun homicides for the year. In comparison, the violence caused by the Drug War overshadows the bloodshed of mass shootings. Though difficult to quantify due to inconsistent reporting, estimates of drug-related homicides reach as high as 50 percent of the total homicides in the United States....
Without legal mechanisms in place, the only option for arbitration in the black market is violence. This violence takes many forms: turf wars between drug suppliers where civilians are also caught in the crossfire; no-knock police raids (sometimes occurring at the wrong house) where suspects are gunned down; drug addicts assaulting others to secure money for their addiction. The multi-faceted nature of the violence makes the task of fully grasping the available data difficult.
The violence of the American Drug War has even spilled over internationally — primarily in Latin America. Between 2007 and 2014, Mexican authorities estimates that 164,000 homicides were the result of cartel violence. For perspective, during the same time period, civilian deaths in Afghanistan and Iraq totaled 103,000 combined....
Despite our backwardness regarding most drug policies, the United States is ahead of most of the international community when it comes to the legalization of cannabis—and we are witnessing some of the positive effects of those efforts. Colorado legalized recreational marijuana with Amendment 64 in 2013, resulting in a “green rush” of population growth. Despite the increase in population, Denver police reports indicate a drop in overall crime, including a 24 percent drop in reported homicides.
Granted, the Colorado experiment with legalized marijuana and its benefits is still new. Plus, it is difficult to demonstrate correlation with such a small sample of data. However, there is a distinct correlation between increased policing of controlled substances and the escalating violence of the black market in those substances. The Independence Institute examined arrest and homicide rates throughout the 20th century and concluded that the greatest contributor to violence is “a violent black market caused by the War on Drugs today, and Prohibition in the 1920’s.”
"Portmanteau Ascendant: Post-Release Regulations and Sex Offender Recidivism"
The title of this post is the title of this notable paper by J.J. Prescott now appearing on SSRN. Here is the abstract:
The purported purpose of sex offender post-release regulations (e.g., community notification and residency restrictions) is the reduction of sex offender recidivism. On their face, these laws seem well-designed and likely to be effective. A simple economic framework of offender behavior can be used to formalize these basic intuitions: in essence, post-release regulations either increase the probability of detection or increase the immediate cost of engaging in the prohibited activity (or both), and so should reduce the likelihood of criminal behavior. These laws aim to incapacitate people outside of prison. Yet, empirical researchers to date have found essentially no reliable evidence that these laws work to reduce sex offender recidivism (despite years and years of effort), and some evidence (and plenty of expert sentiment) suggests that these laws may increase sex offender recidivism.
In this Article, I develop a more comprehensive economic model of criminal behavior — or, rather, I present a simple, but complete model — that clarifies that these laws have at best a theoretically ambiguous effect on recidivism levels. First, I argue that the conditions that must hold for these laws to increase the legal and physical costs of returning to sex crime are difficult to satisfy. There are simply too many necessary conditions, some of which are at odds with others. Second, I contend that even when these conditions hold, our intuitions mislead us in this domain by ignoring a critical aspect of criminal deterrence: to be deterred, potential offenders must have something to lose. I conclude that post-release laws are much more likely to succeed if they are combined with robust reintegration efforts to give previously convicted sex offenders a stake in society, and therefore, in eschewing future criminal activity.
August 16, 2016 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (2)
Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?
The question in the title of this post reflects my ambivalent reactions to this lengthy and interesting AP article headlined "Prosecution trend: After fatal OD, dealer charged with death." Here are excerpts:
He knew he was in trouble even before he read the text message: "Did u hear what hapnd 2 ed?" Ed Martin III had been found dead in the bathroom of a convenience store, slumped over on his knees with a needle and a residue-stained spoon in his pocket. He'd mainlined fentanyl, an opioid up to 50 times more powerful than heroin. A pink plastic bag of white powder sat on the sink.
Michael Millette had heard. The overdose death of his friend, just 28, brought tears to his eyes. But he was scared, too. He was Martin's dealer, the man who'd sold him his final fix. In panic, Millette fled to Vermont. But within a day he was back, selling again. He needed money for his own habit.
Now, though, police had a tip that "Mike on Main Street" had been Martin's dealer. Undercover officers began watching his furtive deals on a pedestrian bridge behind his apartment; they secretly photographed his visitors. After he sold drugs to an informant, they swooped in and arrested him.
That's when Millette earned a dubious distinction: He became one of a growing number of dealers around the nation to face prosecution for the fatal heroin and fentanyl overdoses of their customers. He was charged not just with drug dealing, but with causing Martin's death. Maximum penalty: life behind bars.
In many states, including Ohio, Maine, West Virginia and New Jersey, authorities grappling with an alarming surge in opioid abuse are filing homicide, involuntary manslaughter or related charges against dealers. They argue the overdose deaths should be treated as crimes leading to stiff sentences that deter others — and deliver a measure of justice.
"We need to send that message that you can't sell things that are the functional equivalent of poison," says New Hampshire Attorney General Joseph Foster, whose state has witnessed an explosion in drug-related deaths in recent years....
Littleton is the essence of New England charm, with a white clapboard inn that has welcomed visitors since they arrived by stagecoach, a 19th-century opera house and even a bronze statue of Pollyanna, the fictional optimist whose author was born here.
But beyond the postcard image is the crime blotter police Capt. Chris Tyler sees every day. In recent years, he says, drugs have been linked to 85 to 90 percent of the major crimes — burglary, theft, armed robbery, forgery, identity fraud.... When heroin first took hold here around 2013, Tyler explains, "there was just a general sense of denial. That was something that happens in big cities where people fall between the cracks. It wasn't going to happen here. But unfortunately it has."
It's not just heroin, but cocaine, fentanyl and a resurgence of crystal methamphetamine. In one seven-month stretch last year, there were three overdose deaths, all connected to fentanyl. In May, a police informant was fatally shot; he'd allegedly cooperated in identifying dealers in the area.
In New Hampshire, drug-related deaths have soared from 163 in 2012 to a projected 478 this year. Fentanyl is increasingly the culprit. From 2011 to last year, deaths caused solely by the synthetic opioid exploded from five to 161, according to the state coroner's office. In that same period, the number of deaths caused by fentanyl combined with other drugs, including heroin, rose from 12 to 122....
Millette, 55, had been linked to another young man's fatal fentanyl overdose, but the witness wasn't credible so police didn't pursue the claims. Millette insists he never was a big-time dealer, just a desperate addict. But Tyler notes he peddled fentanyl, heroin and cocaine to more than 30 customers. His strongest stuff was called "the fire."
Millette says he wasn't sure what he'd sold Martin, only that it was stronger than heroin. He never tested what he sold. "If he's going to do it to a friend, who else will you do it to?" Tyler says. "He was somebody who needed to be stopped."
The prosecution of Michael Millette was part of a new thrust against opioid dealing in New Hampshire. In the spring, the U.S. attorney's office and the state's attorney general formed a task force to pursue dealers who sell opiates that result in fatal overdoses. So far, 56 cases are being investigated, says Benjamin Agati, senior assistant attorney general. In July, his office trained law enforcement throughout the state on how to identify these deaths and work with special prosecutors on investigations.
Though New Hampshire isn't ruling out filing homicide charges if needed — a strategy used in some other states — Agati says his office is pursuing dealers based on a law in which it must show they knowingly provided a drug that resulted in death. The heightened focus on dealers, he says, partly stems from a sense among social workers, pharmacists and rehab experts that "'we can't treat our way out this. We can't do this alone. There has to be some way to stem the supply. That's one reason we're trying the new approach."
But is this the right strategy? The legal community is divided. "I just don't think the ultimate responsibility lies with the person who sells another addict a drug," says Marcie Hornick, who was Millette's public defender. "I find it so counterproductive that they think sending these people to prison for long periods of time is going to have any deterrent effect. It's an easy fix and perhaps it satisfies part of the population. In reality, they come out and don't have the tools or skills to return to society."
But James Vara, who prosecuted the case and now is the governor's special drug adviser, rejects suggestions this is a politically motivated plan without merit. "Say that to a family who lost their child, their son, their brother, their daughter," he says. "Say that to Ed Martin's two children who are without their father as a result of this."
I agree with the statement by the public defender that the "ultimate responsibility" for an overdose death lies with the drug user not the drug dealer. But, especially as the number of these OD deaths are skyrocketing and drug dealers are seemingly not deterred from selling deadly drugs even when customers end up dead, it is not obvious to me that prosecuting dealers for homicide really is "counterproductive" or that it will not have some beneficial deterrent impact.
One reason I am generally supportive of marijuana reform and often troubled by long mandatory minimum sentencing terms for drug trafficking is because I dislike the nanny-state paternalism I see in decisions to criminalize and severely punish behaviors that do not obviously inflict serious harms upon innocent victims. But if and when drug dealers (whether on street corners or Big Pharma corner offices) are profiting from knowingly and recklessly selling a product that is regularly killing purchasers, my disaffinity for criminalization and significant punishment fades.
Monday, August 15, 2016
"What's Wrong With Sentencing Equality?"
The title of this post is the title of this notable new paper authored by Richard Bierschbach and Stephanos Bibas now available via SSRN. Here is the abstract:
Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race.
Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended consequences for the structure of sentencing. Focusing on outcomes centralizes power and draws it up to higher levels of government, sacrificing the checks and balances, disaggregation, experimentation, and localism that are practically baked into sentencing’s constitutional framework.
More flexible, process-oriented notions of equality might better give effect to a range of competing punishment considerations while still policing punishments for bias or arbitrariness. They also could bring useful nuance to equality debates that swirl around restorative justice, California’s Realignment experiment, federal use of fast-track plea agreements, and other contemporary sentencing practices.
I am very much drawn to the themes of this paper, and thus I am looking forward to finding time to read all the particulars.
Sunday, August 14, 2016
Former AG Eric Holder brags about his "too little, too late" approach to dealing with federal sentencing's myriad problems
Eric Holder, who served as attorney general of the United States from 2009 to 2015, has this notable New York Times op-ed that I ultimately find more frustrating than encouraging. The article is headlined "Eric Holder: We Can Have Shorter Sentences and Less Crime," and here are excerpts that prompt my frustration (based on the dates I highlighed above, and related dates highlighted below, and a bit of inserted commentary):
The financial cost of our current incarceration policy is straining government budgets; the human and community costs are incalculable. Today, a rare bipartisan consensus in favor of changing drug-sentencing laws presents an opportunity to improve the fairness and efficiency of America’s criminal justice system. But to build on this coalition for reform, which includes senior law enforcement officials, we need action in Congress.
In February 2015, President Obama convened a group of lawmakers — including the Republican senators Chuck Grassley of Iowa and Rand Paul of Kentucky and the Democratic senators Dick Durbin of Illinois and Cory Booker of New Jersey — to build support for sweeping reforms. But the momentum has slowed thanks to opposition from a small group of Republican congressmen using language dredged from the past. One, Senator Tom Cotton of Arkansas, even claimed recently that “we have an under-incarceration problem.”
The Republican presidential nominee, Donald J. Trump, is now fanning fears about the level of crime in America, which is actually at historic lows [Ed Note: crime was at historic lows in 2014 and has recently been going up]. Such pandering is a reminder of how we got here in the first place....
Controlling for other factors, the United States Sentencing Commission found that between December 2007 and September 2011, black male defendants received sentences 20 percent longer than their white counterparts. From 1983 to 1997, the number of African-Americans sent to prison for drug offenses went up more than 26-fold, compared with a sevenfold increase for whites. By the early 2000s, more than twice as many African-Americans as whites were in state prisons for drug offenses....
The Justice Department has pioneered reform. Three years ago, as attorney general, I established the Smart on Crime initiative to reduce draconian mandatory minimum sentencing for low-level drug offenses and encourage more investment in rehabilitation programs to tackle recidivism. The preliminary results are very encouraging. Over the last two years, federal prosecutors went from seeking a mandatory minimum penalty for drug trafficking in two-thirds of cases to doing so in less than half of them — the lowest rate on record. The initiative may not be solely responsible, but 2014 saw the first consecutive drop in the federal prison population in more than three decades, coinciding with a falling crime rate.
Those who argue that without the hammer of a mandatory minimum sentence defendants won’t cooperate are wrong — in fact, the rate of cooperation held steady under the initiative, and the rate of guilty pleas remained constant. The system remained effective and became fairer. Reform has not made us less safe....
Mandatory minimum sentences should be eliminated for many offenses, and where they are still applied, their length should be reduced. The legislative proposals necessarily reflect a compromise, but we must ensure that they go far enough: The judiciary needs greater discretion in imposing mandatory minimums, as do our prosecutors in seeking them. Given the absence of parole in the federal system, we should increase the amount of sentence-reduction credit available to inmates with records of good conduct. And all offenders, regardless of their designated risk level, should get credit for participating in rehabilitation programs....
There is still a disparity in sentencing for offenses relating to crack and powder cocaine, chemically identical substances. Given the policy’s differential racial impact, which erodes confidence in the justice system, this disparity must go. In the light of recent events, we can’t afford criminal justice policies that reduce the already fragile trust between minority communities and law enforcement agencies....
Whatever the outcomes of the bills before Congress and the presidential election, the Justice Department existing reforms must be preserved. Important as they are, all these initiatives have a bearing only on the federal justice system, which houses about 10 percent of the prison population. For the federal effort to be a template for reform in the states, where most prisoners are detained, Congress must lead.
The nation’s lawmakers must stiffen their spines, ignore divisive language and schedule votes in this congressional session on reform legislation. An opportunity like this comes once in a generation. We must not miss it. The over-reliance on mandatory minimum sentences must come to an end.
I have emphasized dates here because I consider former AG Eric Holder (and his boss President Obama) to be among those who really should bear much responsibility if federal policy-makers miss what Holder calls a "once in a generation" opportunity for federal sentencing reform. Tellingly, much of the incarceration data Holder stresses were well known and widely discussed when he assumed office in early 2009. (For example, in this Harvard Law & Policy Review piece from Fall 2008, I stressed the problems of modern mass incarceration and urged progressives to "mine modern movements in Constitutional and political theory to make new kinds of attacks on mass incarceration and extreme prison punishments" and to "be aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration.") And yet, as Holder notes, he did not establish DOJ's Smart on Crime initiative until August 2013, and Prez Obama did not convene a group of lawmakers to push for reform in Congress until February 2015.
In other words, both Prez Obama and AG Holder fiddled while the federal sentencing system was still burning with tough-on-crime, mandatory-minimum "over-reliance" from 2009 to 2013 during the entire first Obama Administration Term. And, critically, we should not lose sight of the important reality that Prez Obama's party controlled both houses of Congress until early 2011 and contolled the Senate until early 2015. Moreover, the enduring and continued (misguided) opposition of Prez Obama and the Justice Department to mens rea reforms supported by the GOP establishment has arguably been the most critical roadblock to getting sweeping reform legislation enacted even now.
Last but not least, and as Holder reveals in this op-ed, federal prosecutors are still charging mandatory minimum drug sentencing provisions in near half of all drug cases (including in many crack cases where there is still a major, race-skewing sentencing disparity). I suspect that when Holder says "mandatory minimum sentences should be eliminated for many offenses," he is largely referencing drug offenses in which no guns or violence were involved (where other mandatory minimums are applicable). If Holder really believed that it would be sound and sensible to eliminate mandatory minimum sentences in such cases, he could have on his own included provisions in his Smart on Crime initiaitve to require line prosecutors to avoid charging under these statutes in all but the rarest drug cases rather than continuing to have these statutes still be applied in nearly half of all drug cases.
Sadly, I could go on and on and on about all the things former AG Holder could have and should have done while serving as U.S. Attorney General for six full years to deal with all the problems he now is quick to lament in the pages of the New York Times. (Here it bears noting that he gets to write about these problems now from the safety of a corner office at a big DC firm where he is, according to this article, likely making more than $5,000,000/year, well over 20 times more than the hardest working federal prosecutors and federal defense attorneys make.) Holder's closing sentiment urging federal lawmakers to "stiffen their spines" really gets my goat when his own spine struck me as so soft for his six years as Attorney General, and especially now that he gets to enjoy cashing in on the inside-the-Beltway privileges of allowing one's spine to blow back-and-forth with the prevailing political winds.
August 14, 2016 in Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)
Saturday, August 13, 2016
"The Drug Court Paradigm"
The title of this post is the title of this notable new article by Jessica Eaglin now available via SSRN. Here is the abstract:
Drug courts are specialized, problem-oriented diversion programs. Qualifying offenders receive treatment and intense court-supervision from these specialized criminal courts, rather than standard incarceration. Although a body of scholarship critiques drug courts and recent sentencing reforms, few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts.
This Article explores the broader effects of the drug court movement, arguing that it created a particular paradigm that states have adopted to manage overflowing prison populations. This drug court paradigm has proved attractive to politicians and reformers alike because it facilitates sentencing reforms for low-level, nonviolent drug offenders that provide treatment-oriented diversions from incarceration. Though reforms adopted within the drug court paradigm have contributed to stabilizing prison populations and have created a national platform to discuss mass incarceration, this paradigm has limits that may prevent long-term reductions in prison populations. This Article identifies three limitations of the drug court paradigm: First, by focusing exclusively on low-level drug offenders, the approach detrimentally narrows analysis of the problem of mass incarceration; second, by presenting a “solution,” it obscures the ways that recent reforms may exacerbate mass incarceration; third, by emphasizing a focus on treatment-oriented reforms, this paradigm aggressively inserts the criminal justice system into the private lives of an expanding mass of citizens.
This Article locates the current frame’s origin in the drug court movement. Identifying this connection is important for two reasons: First, it provides new insight to how we define “success” in criminal justice, and why. Second, it illuminates a growing tension between government actors and the general public’s appetite for criminal justice reforms that meaningfully reduce mass incarceration.
I am putting this article on my must-read list because the author is 100% right when noting that "few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts." Indeed, I have been surprised about how little active discourse about drug courts there has been in recent years in academic and policy circles.
August 13, 2016 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (6)
Tuesday, August 09, 2016
"Put Away The Pitchforks Against Judge Persky"
The title of this post is the headline of this lengthy new Politico commentary authored by Lara Bazelon, which carries this sub-headline "Yes, he gave Stanford rapist Brock Turner a break. But to recall him would be to overturn our legal system." Here is how the commentary, which merits a full read, gets started:
On this we can all agree: Brock Allen Turner, a blonde-haired, blue-eyed, one-time All-American Stanford freshman swimmer, is stone cold, beyond-a-reasonable-doubt guilty of committing a violent sexual assault against an unconscious woman behind a dumpster. Because what Turner did was brutal, criminal and depraved, and because of his utter lack of remorse—much less insight into his behavior—he should have gone to prison.
But the reaction to the lenient sentence given to Turner by Santa Clara County Superior Court Judge Aaron Persky is, frankly, frightening, dangerous and profoundly misguided.
In a charge spearheaded by Stanford law professor Michele Dauber — a close friend of the victim’s family — an effort is underway to recall Persky from office. Sixteen state legislators have demanded that the California Commission on Judicial Performance investigate Persky for misconduct. Over a million members of the feminist organization UltraViolet signed an online petition voicing their agreement. The group also hired a plane to fly over Stanford during graduation carrying a banner that said, “Protect Survivors. Not Rapists. #PerksyMustGo,” and paid for a billboard on a nearby, high-traffic freeway that sends the same message.
Earlier this summer, prosecutors filed a motion to disqualify Judge Persky from presiding over another sexual assault case involving an unconscious victim — a sedated patient allegedly fondled by a nurse. More recently, Persky came under fire once again for imposing a three-year sentence on a Latino man who committed an assault, that, on the surface at least, seemed similar to Turner’s. But unlike the Turner case, the sentence was imposed after the defense and the prosecution agreed to it. Nevertheless, the mob pounced. It was yet another sign, they said, of Persky’s bias toward white, affluent men — presumably the only kind of person he was able to relate to. Dauber told NPR, “Hopefully, a qualified woman will replace him.”
As a law professor well-versed in the vital importance of an independent judiciary, Dauber should know better. Removing a judge — never mind investigating him for misconduct — because of a single bad decision undermines the rule of law. It sends a chill down the spines of elected judges everywhere, which is nearly every judge in the state court across the United States.
I am pleased to see someone talking about rule-of-law concerns if/when folks get heavily invested in seeking to recall a judge for what is viewed as a bad ruling. But I actually think the Brock Turner case serves as even more of an object lesson in how hard it will be to fully address modern mass incarceration in the United States when there are still so many powerful and prominent Americans who are eager to devote time and energy to vindicate and operationalize the view that lengthy terms of incarceration are the only "fitting" form of punishment for many crimes and many defendants.
Some prior related posts:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
- California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
Sunday, August 07, 2016
"Norway Proves That Treating Prison Inmates As Human Beings Actually Works"
The title of this post is the headline of this lengthy recent Huffington Post piece drawn from a book about prisons around the world authored by Baz Dreisinger. Here are excerpts:
Bastoy is an open prison, a concept born in Finland during the 1930s and now part of the norm throughout Scandinavia, where prisoners can sometimes keep their jobs on the outside while serving time, commuting daily. Thirty percent of Norway’s prisons are open, and Bastoy, a notorious reformatory for boys converted in 1982 to a prison, is considered the crown jewel of them all....
Nothing represents the Norwegian way like its prison system, which has adopted a “principle of normality,” according to which punishment is the restriction of liberty itself and which mandates that no one shall serve their sentence under stricter circumstances than is required by the security of the community.
Criminologist John Pratt summed up the Scandinavian approach using the term “penal exceptionalism,” referring to these countries’ low rates of imprisonment and humane prison conditions. Prisons here are small, most housing fewer than 100 people and some just a handful. They’re spread all over the country, which keeps prisoners close to their families and communities, and are designed to resemble life on the outside as much as possible.
An incarcerated person’s community continues to handle his health care, education and other social services while he’s incarcerated. The Norwegian import model, as it is known, thus connects people in prison to the same welfare organizations as other citizens and creates what’s called a seamless sentence ― a person belongs to the same municipality before and after prison. Sentences here are short, averaging an estimated eight months, as compared to America, where the estimated average sentence was 4.5 years in 2012. Almost no one serves all his time, and after one-third of it is complete, a person in prison can apply for home leave and spend up to half his sentence off the premises.
And the most highly touted aspect of the humane Norwegian prison system is the fact that it seems to work. Crime rates are very low, and the recidivism rate is a mere 20 percent.
Saturday, August 06, 2016
Interesting results from survey of crime victims suggests they support "smart on crime" reforms
This Washington Post article, headlined "Even violent crime victims say our prisons are making crime worse," reports on this results of an interesing survey of crime victims. Here are excerpts:
A first-of-its-kind national survey finds that victims of crime say they want to see shorter prison sentences, less spending on prisons and a greater focus on the rehabilitation of criminals. The survey, conducted in April and released Thursday by the Alliance for Safety and Justice, a criminal justice reform group, polled the attitudes and beliefs of more 800 crime victims pooled from a nationally representative sample of over 3,000 respondents....
"Perhaps to the surprise of some, the National Survey on Victims’ Views found that the overwhelming majority of crime victims believe that the criminal justice system relies too heavily on incarceration, and strongly prefer investments in treatment and prevention to more spending on prisons and jails," according to the report.
By two-to-one, victims said the criminal justice system should focus more on rehabilitating people who commit crimes, as opposed to punishing them. By similar margins, the victims preferred shorter prison sentences over keeping criminals incarcerated "as long as possible."...
More recent surveys have uncovered overwhelming support for eliminating mandatory minimum sentencing requirements for federal crimes. But congressional efforts to implement policies like these have often been stymied by "tough-on-crime" senators, including Chuck Grassley (R-Iowa) and Dianne Feinstein (D-Calif.), who are skeptical of many reform efforts. They often cite the experiences of crime victims and their families in their arguments against reform. For instance, in 2009 Feinstein and Republican Sen. Jon Kyl argued in an op-ed that "for too long, our court system has tilted in favor of accused criminals and has proven appallingly indifferent to the suffering of crime victims." In 2014, Grassley argued on the Senate floor that "lower mandatory minimum sentences mean increased crime and increased victims. Why would we vote to increase crime and create more crime victims?"
But the new survey suggests that crime victims' interests don't always align with those of the tough-on-crime lawmakers who invoke their names. The survey suggests this may be because many crime victims don't see prison as an effective tool for reducing the crime rate and preventing others from being victimized.
In the survey, 52 percent of victims said that prison makes people more likely to commit crimes again. Only 19 percent said that prison helps rehabilitate people into better citizens. This skepticism of prisons is in line with most social science research, which has generally shown that mass incarceration causes more crime than it prevents, that institutionalizing young offenders makes them more likely to commit crime as adults, and that spending time in prison teaches people how to be better criminals....
The survey report quotes Judy Martin, an Ohio woman whose son was shot and killed in a parking lot. "The way our criminal justice system is set up currently doesn’t allow for redemption," Martin says. "We must treat each other, even those among us who have made serious mistakes, with more humanity. It’s the only way forward."
The full report, which is titled "Crime Survivors Speak," is available at this link.
Tuesday, August 02, 2016
"The Effects of DNA Databases on the Deterrence and Detection of Offenders"
The title of this post is the title of this intriguing new empirical paper available via SSRN authored by Jennifer Doleac, Rasmus Landersø and Anne Sofie Tegner Anker. Here is the abstract:
Countries around the world use databases of criminal offenders' DNA profiles to match known offenders with crime scene evidence. The purpose is to ease police detection work and to increase the probability that offenders get caught if they reoffend, thereby deterring future criminal activity. However, relatively little is known about the behavioral effects of this law enforcement tool. We exploit a large expansion of Denmark's DNA database in 2005 to measure the effect of DNA profiling on criminal behavior. Individuals charged after the expansion were much more likely to be added to the DNA database than similar offenders charged just before that date.
Using a regression discontinuity strategy, we find that the average effect of the DNA database is a reduction in recidivism. By using the rich Danish register data, we further show that effects are heterogeneous across observable offender characteristics; it is mainly offenders initially charged with violent crime that are deterred from committing new crimes. We also find that DNA profiling has a positive detection effect, increasing the probability that repeat offenders get caught. Finally, we find evidence that DNA profiling changes non-criminal behavior: offenders added to the DNA database are more likely to get or remain married. This is consistent with the hypothesis that, by deterring future criminal behavior, DNA profiling changes an offender’s life course for the better.
Sunday, July 31, 2016
"Boot-Camp Prisons Find Their Time Running Out"
The title of this post is the headline of this new Wall Street Journal article. Here are is how it gets started:
At 5:30 on a misty morning in the Adirondacks, 180 prisoners leapt out of bed when a bugle call blasted over a loudspeaker. Fifteen minutes later, they were performing synchronized exercises while a drill instructor barked orders. “Motivated! Motivated! Motivated, sir!” the men shouted in unison between calisthenics.
These inmates are serving six-month sentences at Moriah Shock Incarceration Correctional Facility, one of the last prisons in the U.S. that seek to “shock” inmates out of criminal behavior through a military-style boot camp. Inmates at the facility typically trade multiyear sentences for six-month stints.
Such programs used to be widespread, but fell out of favor in much of the country amid debate about their effectiveness. Only a handful remain and two of them are in New York, where correction officials say their brand of military-style training reduces recidivism and saves taxpayer money through shorter sentences. “It instills self-discipline,” said Boyce Rawson, a captain at Moriah. “Inmates take personal pride in themselves as well as their platoon.”
As recently as 1995, according to federal research, there were 75 state-operated boot camps nationwide for adult offenders, 30 for juveniles and 18 in local jails, including at New York City’s Rikers Island jail complex. A 1994 federal crime bill allocated millions for such programs.
While the camps were popular with tough-on-crime politicians, reviews were mixed. One Justice Department analysis found the camps had a positive effect on inmates’ attitudes, behavior and safety while in prison. But that analysis and other studies found the programs had no notable impact on recidivism.
The programs gradually closed. The Federal Bureau of Prisons ended its boot camps in 2005. New York has closed two facilities in the past several years, leaving Moriah and Lakeview, in Chautauqua County, as the only ones left in the state. Other states have shifted their camps toward what they call more “evidence-based,” rehabilitative models.
Thursday, July 28, 2016
US Sentencing Commission releases big new report urging reform of career offender enhancements
As detailed in this official press release, the US Sentencing Commission today released a big new report (running over 100 pages!) under the title "Report to the Congress: Career Offender Sentencing Enhancements." Here is how the press release summarizes this important new release from the USSC:
The United States Sentencing Commission (“Commission”) issued a Report to the Congress: Career Offender Sentencing Enhancements, analyzing career offenders’ prior criminal history, incarceration terms and recidivism rates.
Chief Judge Patti B. Saris, Chair of the Commission, stated, “The Commission’s research shows that there are important differences between violent career offenders and drug trafficking career offenders. Based on these findings, Congress should amend the statutory criteria such that career offender status would not be based solely on drug trafficking offenses.”
Currently, a defendant qualifies as a career offender if he or she: 1) is convicted of an offense that is either a crime of violence or a controlled substance offense; and 2) has at least two prior felony convictions. Career offenders face longer incarceration terms, receiving an average sentence of more than 12 years (147 months). As a result of these longer sentences, career offenders now account for more than 11 percent of the total federal prison population. Yet, career offenders are increasingly receiving sentences below the federal sentencing guideline range, often at the request of the government. The research also shows that, compared to “drug trafficking only” offenders, violent career offenders generally have a more serious and extensive criminal history, recidivate at a higher rate, and are more likely to commit another violent offense in the future. In fiscal year 2014, 45% of “drug trafficking only” offenders received sentences that were reduced at the government’s request.
In fiscal year 2014, nearly three-quarters (74.1%) of career offenders were convicted of a drug trafficking offense. Drug trafficking offenders often face higher statutory maximum penalties, including life imprisonment. These offenders were also more likely to receive a sentence below the federal sentencing guideline range.
Earlier this year, the Commission voted unanimously to amend the definition of “crime of violence” in the federal sentencing guidelines, with an effective date of August 1, 2016. Chair Saris added, “Based on the report’s findings and recommendations, Congress should adopt a new, single definition of ‘crime of violence’ that is consistent with the Commission’s revised approach.”
How much is federal prosecution of Native American teen for a marijuana offense in Oregon going to cost taxpayers?
The question in the title of this post is my effort to focus a bit more on the fiscal realities surrounding an interesting federal misdemeanor marijuana prosecution discussed in this lengthy local article from Oregon. The article is headlined "Devontre Thomas is 19. He Could Face a Year in Prison. For a Gram of Marijuana. How could this happen in Oregon?". The details here are so interesting for so many reasons, including a recent decision by the defendant not to agree to a plea to what seems to be federal charges less serious than might have been alleged. Here are some details:
Devontre Thomas is 19 years old. In a few weeks, he goes on trial in federal court in Portland. If he loses, he could go to prison for a year. For possessing an amount of cannabis that would fill one joint....
On April 7, 2016, the U.S. attorney for Oregon filed a one-count federal misdemeanor charge against Thomas for possessing "about a gram" of marijuana, according to his public defender, Ruben Iniguez. That's barely enough cannabis to dust the bottom of a Ziploc.
"I've never seen a case like this in my entire time practicing in federal court," says Bear Wilner-Nugent, a Portland criminal defense lawyer for 12 years. "It's outlandish." It's the first time in at least three years that the feds are prosecuting a weed crime in Oregon.
Since then, Oregon voters legalized recreational marijuana. Anyone over 21 can walk into a store and buy up to a quarter ounce — 7 grams — of cannabis. In the first five months of recreational sales, the state collected $14.9 million in marijuana sales taxes. But weed isn't equally legal everywhere in Oregon.
Thomas is accused of screwing up like any other teenager. But his alleged mistake occurred at Chemawa Indian School, a boarding school in the state capital, Salem, operated by the Bureau of Indian Education, an arm of the federal government. Observers say Thomas' prosecution, first reported by KGW-TV, is a poster case for how the nation's drug laws are still stacked against minorities — especially Native Americans. "There's absolutely racial disparity in how these cases are charged," says Amy Margolis, a lawyer at Emerge Law Group, a Portland firm that specializes in cannabis cases. "[Thomas] had the bad luck of being where and who he was."...
The prosecution of Thomas raises questions about the priorities of U.S. Attorney for Oregon Billy Williams, the state's chief federal prosecutor. Among them: Why are federal prosecutors, who claim that Oregon is a den of heroin, meth and opioid trafficking, spending time and resources to go after a teenager for such a small amount of pot? After two weeks of declining requests for comment, Williams finally issued this statement to WW: "We look forward to addressing the facts of the case in an appropriate manner and, most importantly, within the judicial process."
But members of Oregon's congressional delegation say it's alarming that Williams would prosecute the case at all. "I think it's deplorable," says U.S. Rep. Earl Blumenauer (D-Ore.). "What are we doing? Where are our priorities? A kid? Turning his life upside down? They don't have anything better to do to protect young people or Oregonians? It's incomprehensible to me."
As bizarre as Thomas' pot case is in weed-happy Oregon, the place where his alleged offense occurred is just as much of an anachronism. Chemawa, a Native American boarding school, was founded in 1880 and is the longest continually operating boarding school for Native American youth....
Thomas arrived at Chemawa from Madras High School, where he spent his first two years before transferring. He is a member of the Warm Springs tribe, and grew up with his parents and grandparents on the tribe's reservation 105 miles southeast of Portland.... A parent of a fellow Chemawa student described the Thomases as "a good family." His friends say his childhood was that of a normal, loved boy: spending the night at friends' houses, playing basketball on the Madras High junior varsity team....
Rayvaughn Skidmore, 20, also attended Chemawa with Thomas.... Skidmore says Thomas "would always help out his peers and be a leader—showing them what's the right things to do." Skidmore says Chemawa staff members would sometimes drive kids into town to go shopping at Keizer Station Shopping Center or Lancaster Mall in Salem, and he thinks that's when some students would meet up with marijuana connections and bring the substance back to campus.
But when kids on campus were caught with marijuana in their possession, "they'd get sent home." Skidmore says those infractions never resulted in legal charges, even though he knew plenty of classmates who regularly smoked weed. "These other students who are highly abusing any type of marijuana — I don't see why those guys get sent home when they should be prosecuted," he says....
Thomas was never technically arrested for marijuana possession. On March 25, 2015, Iniguez says, a staff member at Chemawa found roughly a gram of marijuana in a student's backpack. That kid said Thomas had sold him the weed. The Marion County Sheriff's Office confirmed that it responded to a call on that date involving Thomas and a juvenile classmate for "delivery" of marijuana.
Nearly a year after a classmate ratted out Thomas, a Chemawa staff member and a police officer drove him to the federal courthouse in Portland to appear before a judge. Lawyers interviewed for this story say it's likely that Thomas is feeling outsized consequences because Chemawa Indian School is under federal jurisdiction....
Retired federal drug prosecutor John Deits says Thomas' case is probably being handled as a federal case because "it's the only jurisdiction that can respond to the charge."
"Nobody else has authority," Deits says. "Marion County doesn't have authority because it's exclusive federal authority. And Indian tribes don't have jurisdiction because it didn't happen on their land."...
The resulting prosecution of Thomas shocks national observers. "He's 19. This is going to potentially haunt him the rest of his life," says Alison Holcomb, director of the American Civil Liberties Union's national Campaign for Smart Justice in Seattle. It's also a stark reminder that the War on Drugs isn't over — even in Oregon.
Observers find it bizarre that the feds have continued to pursue Thomas' case. But U.S. Attorney General Loretta Lynch has been vocal about her desire to keep pot illegal. Local responsibility for prosecuting Thomas falls to Williams, the U.S. attorney for Oregon.... "We are committed to just outcomes in every case," he says. "We look forward to exploring whatever the defense ask that we consider before determining what we believe is an appropriate outcome."
Other federal officials are critical of the prosecution. "The federal government hasn't prosecuted a marijuana-possession case in Oregon in five years," says U.S. Sen. Jeff Merkley (D-Ore.). "Situations like this are best left to be handled by the state."
Blumenauer, who as an Oregon congressman has become one of the nation's loudest voices for marijuana legalization, is enraged. "It is such a powerful symbol of a waste of resources and the inequity of the system," says Blumenauer, "because you and I can walk around in Portland, or in states where it is illegal, and find people using it. To single him out, to proceed with this, to ignore real problems that are killing people…" He pauses. "I'm sorry," he finally says. "I'm getting carried away. It's incomprehensible to me. I'm just sorry that Mr. Thomas is caught up in it."
The people surrounding Thomas in the federal courthouse in Portland on July 8 — Assistant U.S. Attorney Jennifer Martin, U.S. District Chief Justice Michael Mosman, three functionaries and a probation officer — expected Thomas to plead guilty to drug possession and enter a six-month diversion program. But a few moments earlier, Thomas' public defender, Iniguez, hustled into the courtroom with Thomas to announce a change of plans.
"He's not going to be pleading guilty today," Iniguez said. Martin, the prosecutor, looked shocked. "We want to go to trial?" she asked, flummoxed. "If we're making a federal case out of it," said Iniguez, sneaking in a smile, "we'll make a federal case out of it."
Holcomb, of the national ACLU, speculates that Thomas' last-minute decision not to plead guilty may show a steadfastness on his part to prove that he's no different from any other Oregon teenager who messed around with pot. "Devontre's response, to me, indicates a genuinely felt sense of unfairness," Holcomb says. "That it is unfair that he's being charged in federal court for this. It's the latest in a string of dramatic examples of how deeply people are feeling about unfairness and inequality…it sounds like that bubbled up for Devontre."...
Thomas is scheduled for trial Sept.13.
Like nearly all federal prosecutions that become media stories, I sense that this press account is revealing only the tip of an iceberg backstory. For starters, though subject formally only to a federal misdemeanor possession charge, the facts described here suggest that the defendant could have (and some might even say should have?) been subject to a federal felony marijuana distrubution charge. In addition, it seems the feds were seemingly eager to resolve the case through a plea that would prevent the defendant from serving any time or having a felony record. But now it seems that the defense may be gearing up for contesting the charges factually or perhaps constitutionally (or perhaps even via jury nullification if other avenues of defense falter).
I probably could go on and on about this case, and it is certainly one I will be keeping an eye on in the coming months. But, as suggested in the title of this post, whatever else one thinks about this case, I cannot help but wonder how many federal taxpayer dollars will end up being spent on this (minor?) matter.
July 28, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)
Wednesday, July 27, 2016
"Give felons and prisoners the right to vote"
The title of this post is the title of this new commentary in the Washington Post authored by Gideon Yaffe. Here is how it starts and ends:
This week, Virginia Gov. Terry McAuliffe (D) vowed to sign individual orders restoring the voting rights of more than 200,000 convicted felons living in the state. His pledge followed the Virginia Supreme Court’s ruling that the mass clemency McAuliffe issued in April overstepped his power under the commonwealth’s constitution. Republicans complained bitterly — think of all those Democratic votes from the many African Americans who stand to benefit! — and promised to scrutinize every order for errors.
But the GOP has it wrong. Not only is McAuliffe doing the right thing, but also he should push further. Prisoners, too, should be allowed to vote, no matter their crimes. While only Vermont and Maine currently grant prisoners the vote, felon disenfranchisement fundamentally undermines the democratic rationale of our criminal laws. We cannot hold citizens to account for violating our laws while denying them a say over those laws.
In a democracy, it can fairly be said that when the state does something unpleasant to you — locks you up, forces you to pay taxes, takes your property — that injury is self-inflicted. Since it’s your government, whatever it does to you is something you do to yourself. And it’s your government because you have a say over what it does: You have the vote. But when the state brings down the hammer on a disenfranchised, recidivist felon, the punishment he receives is not self-inflicted. His punishment might as well be levied by a foreign government.
Most felons — whether in prison, on probation or parole, or entirely free of state supervision — are citizens. They should not be treated like foreigners. First of all, they have no other geographic home: They cannot be deported, because citizens have a right to be here. But felons also have no other political home. Nowhere else can they live under a government whose actions are their actions. In this way, they are importantly different from immigrants, who (if they come from a place governed by the rule of law) are granted a say over the behavior of some government somewhere....
In a democracy, felon enfranchisement should not be a partisan issue. Both Republicans and Democrats ought to be held to account for their crimes by a government whose actions they can own. We should give the vote to citizens, in or out of prison, whom we wish to hold responsible for violating laws that are not just ours but also theirs.
Tuesday, July 26, 2016
District Court explains reasons for disallowing penile plethysmograph and visual response testing for child pornography offender
A helpful reader altered me to a notable sentencing opinion handed down last week by District Judge John Kane in US v. Cheever, No. 15-cr-00031-JLK (D Colo July 18, 2016) (available here). The first part of the opinion provides a thoughtful account of the sentencing judge's accounting of application of the 3553(a) sentencing factors to defendant Shawn Cheever after his plea to a single count of possession of child pornography, but an "addendum" to the opinion is what makes it truly blog-worthy. In the addendum, Judge Kane explains why he is refusing to "authorize a treatment provider to require polygraph, plethysmograph (PPG) and visual reaction time measurements." His lengthy explanation merits reading in full, and here are a few of many interesting passages therein:
Proponents of using the penile plethysmograph correlate arousal data to deviant sexual behavior by assuming that individuals with a history of sexual offenses who respond to illicit sexual stimuli are likely to react in furtherance of their responses. There is no scientifically accepted data presented to justify this assumption, nor does it have any logical basis. Rather, just as with the polygraph (lie detector) machine, it is used as a tool of coercion by both law enforcement personnel and treatment providers. The plethysmograph is used to obtain inculpatory admissions, the reliability of which is at best equivocal. The patient or suspect may believe he can manipulate the results — and with a modicum of sophistication or psychopathy, he may well be able to do so. Or, the suspect or patient may succumb to the threat, overt or implied, that his refusal to submit to testing has negative implications that can result in further incarceration, withholding of privileges or being held back in the treatment or incarceration processes and therefore lie about his interests or past behavior. Moreover, it is not fanciful speculation that false test results can be conveyed to the individual in order to reduce resistance and gain inculpatory admissions....
[A]dministering a penile plethysmograph test necessitates the person administering the test to be engaged in the possession, use and distribution of child pornography. There is no exception in the statute to exclude therapeutic purposes or intent from culpability. The violation is per se. It is paradoxical that the government would mandate individuals subject to supervised release to join an administrator of the test in conduct so vile that it landed him in prison in the first place. The statute criminalizing the possession, use and distribution of child pornography has no exceptions. Both the administrator and the subject are violating the statute. Moreover, the well-established continuing damage inflicted on the child victims portrayed in the pornography derives from the fact that they are seen repeatedly by viewers and it makes not one shred of difference to the victims that the viewer is a pervert or a therapist....
Prohibiting courts, probation and parole officers and treatment facilitators and providers from using devices that fail tests of scientific validity is necessary, but a further comment about the line Judge Noonan describes so eloquently will perhaps provide a resolution to the underlying debility. Judge Noonan evokes the task of Orwell's "Thought Police" — and using what is "discovered" as a basis for further punishment or superficial rehabilitation. Justice Cardozo in Palko v. Connecticut, 302 U.S. 319, 326-27 (1937) stated: "freedom of thought. . . is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal."...
The established traditions of our law embrace the ancient common law principle that liberty should not be impinged or threatened for what a person thinks, but only for what a person does. The maxim cogitationis poenam nemo patitur (no one is punishable solely for his thoughts) was written long before the invention of the plethysmograph or other machines intended to probe the recesses of the mind....
Penile plethysmograph tests rely on the heavy assumption that stimuli arousal is strongly related to the potential for recidivism. Inferences by the courts about a person's potential for sexual offense based on his innermost sexual desires fail to acknowledge that arousal data is not an ineluctable precursor to deviant behavior. This observation, a fortiori, illustrates the dangerous conflation of thought with behavior. Before administering the penile plethysmograph without questioning its obvious scientific shortcomings (not to mention its ethical implications), it is crucial that the courts, probation and parole officers and PPG evaluators recognize 1) the power of refrain; and 2) the difference between thought and action. The presuppositionless assumption is that any "arousal level" occasioned by the exposure to child pornography stimuli is deviant because convicted sex offenders are unable to resist or subdue their impulses. Urges, however, are not always overwhelming. Otherwise, there would be no opportunity for moral decisions or even so-called enlightened self-interest decisions to be made in the crucible of an experience.
UPDATE: Another helpful reader altered me that there is now this Denver Post article about the opinion in Cheever, which is headlined "Judge criticizes federal sentencing guidelines in pornography case: Kane said he would have given sex offender lesser sentence if permitted by law."
Looking at juvenile justice in a worldly way
Recenlty posted to SSNR are these two chapters from a recenly published book of essays titled "Juvenile Justice in Global Perspective":
One Theme or Many? The Search for a Deep Structure in Global Juvenile Justice by Franklin Zimring and Maximo Langer
Myths and Realities of Juvenile Justice in Latin America by Maximo Langer and Mary Beloff
Here is the abstract for the first of these chapters which serves as an introduction to the book:
This chapter uses the global portrait of juvenile justice found in the rest of this volume — that includes chapters on juvenile justice in China, Europe, India, Latin America, Muslim-majority states, Poland, Scandinavia, South Africa, and South Korea and Japan — to discuss possible explanations for the almost ubiquitous existence of separate juvenile courts around the world. After briefly analyzing the role that power, emulation, and structural factors have played in the global diffusion of the juvenile court, we discuss what theory of juvenile courts may underlie their actual practices. We argue that the main function that juvenile courts have performed has been letting juvenile offenders grow up out of crime and that such a function also provides the best justification for the continuing existence of these courts.
Monday, July 25, 2016
"Does 'Ban the Box' Help or Hurt Low-Skilled Workers? Statistical Discrimination and Employment Outcomes When Criminal Histories Are Hidden"
The title of this post is the title of this notable new paper authored by Jennifer Doleac and Benjamin Hansen now available via SSRN. Here is the abstract:
Jurisdictions across the United States have adopted “ban the box” (BTB) policies preventing employers from conducting criminal background checks until late in the job application process. Their goal is to improve employment outcomes for those with criminal records, with a secondary goal of reducing racial disparities in employment. However, removing information about job applicants’ criminal histories could lead employers who don’t want to hire ex-offenders to try to guess who the ex-offenders are, and avoid interviewing them. In particular, employers might avoid interviewing young, low-skilled, black and Hispanic men when criminal records are not observable. This would worsen employment outcomes for these already-disadvantaged groups.
In this paper, we use variation in the details and timing of state and local BTB policies to test BTB’s effects on employment for various demographic groups. We find that BTB policies decrease the probability of being employed by 3.4 percentage points (5.1%) for young, low-skilled black men, and by 2.3 percentage points (2.9%) for young, low-skilled Hispanic men. These findings support the hypothesis that when an applicant’s criminal history is unavailable, employers statistically discriminate against demographic groups that are likely to have a criminal record.
Friday, July 22, 2016
"Possession, Child Pornography and Proportionality: Criminal Liability for Aggregate Harm Offenses"
The title of this post is the headline of this notable new article authored by Anthony Dillof and now available via SSRN. Here is the abstract:
Federal prosecution of individuals for possessing child pornography has risen steadily and dramatically over the last twenty years. As the number of prosecutions has increased, so have the penalties. Today a typical defendant charged with possessing child pornography can expect a seven-year prison sentence. The article considers whether such sentences are just, fair and proportionate. To answer this question, the article adopts a retributivist perspective on punishment. Retributivism, in turn, requires evaluating the wrongfulness of the conduct to be punished.
The article argues that while the possession of child pornography by a large group of persons in aggregate creates significant social harm — for example, a robust market for the production of child pornography — individual acts of possession, considered at the margin, have only a trivial impact. This raises a serious problem of disproportionality in punishment for retributivists. The article attempts to solve this problem by developing a theory of aggregate harm offenses. According to this theory, even acts that have little marginal impact may constitute serious moral wrongs insofar as they violate the principle of rule consequentialism. Rule consequentialism requires acting pursuant to a rule with desirable social consequences. The article develops a rationale for rule consequentialism and explores how rule consequentialist norms may be used to justify and explain not only child pornography possession laws, but also a broad group of superficially unrelated criminal offenses.
Tuesday, July 19, 2016
Nearly four years(!?!) in federal prison for MLB scout who hacked into rival team's research and notes
As reported in this local article, headlined "Former Cardinals scouting director sentenced to 46 months for hacking Astros database," a notable defendant got a significant federal prison sentence for some illegal corportate espionage. Here are some of the details:
The former St. Louis Cardinals scouting director who admitted he hacked accounts of the Houston Astros to gain insight into their operations was sentenced Monday afternoon to 46 months in prison.
Chris Correa pleaded guilty in January to five counts of unauthorized access to a protected computer. As part of his plea, Correa admitted to using the accounts of three Astros employees to view scouting reports, amateur player evaluations, notes on trade discussions and proposed bonuses for draft picks. The information he accessed was given an estimated value of $1.7 million by the U.S. Attorney’s office.
Correa, 36, also admitted taking measures to conceal his identity. The sentence includes two years of supervised release and restitution payment of $279,038.65. He will remain free until he is to report to prison, in two to six weeks....
During his guilty plea six months ago, Correa contended he hacked into the Astros accounts to see if former Cardinals employees had taken proprietary data or statistical models to use in their new positions with the Astros. Correa told prosecutors he found evidence that it did occur, U.S. Attorney Kenneth Magidson told the Post-Dispatch at that time....
Giles Kibbe, general counsel for the Astros, said after the sentencing that Correa accessed the Houston team’s database 60 times on 35 different days. “I don’t know what he saw or thought he saw,” Kibbe said, adding that what was clear from listening to U.S. District Judge Lynn N. Hughes during the sentencing is this: “The Astros were victims in this case.”...
Houston and its general manager, Jeff Luhnow, who began his baseball career with the Cardinals more than a decade ago, have repeatedly denied that Luhnow or any other former Cardinals employees brought information to the Astros. “The Astros refute Mr. Correa’s statement that our database contained any information that was proprietary to the St. Louis Cardinals,” the team said in a statement in January. Along with the U.S. attorney’s investigation, in which no other member of the Cardinals’ organizations was charged, the team completed an internal investigation; its outcome was Correa’s dismissal a year ago....
Correa read a four-minute statement to the judge before Hughes handed down his sentence. “I behaved shamefully,” Correa said, in apologizing to the Astros. “The whole episode represents the worst thing I’ve ever done by far.”
As he continued reading, offering an apology to his family with the promise to “regain your trust,” Hughes stopped Correa, asking him to turn around and speak directly to family members attending the hearing. Correa did so, his voice breaking as he repeated his apology. Correa said that because of his actions, he lost his career and his house, and he will work with his wife to rebuild “a quiet life of integrity.”
Hughes chastised Correa several times for his actions, comparing them to middle-school behavior. The judge used as an example a teacher asking Correa if he threw the eraser to which Correa would justify the action by saying: “Bobby did, too!”
“I hope it didn’t work then. It’s not going to work now,” Hughes said. The judge likened Correa’s hacking actions to altering a check by adding extra zeroes “and wiping out someone’s bank account.” Hughes also disclosed in court that Correa had been using prescription drugs without a prescription since the hacking charges, and that he could also have been prosecuted for that crime.
Hughes noted that Correa had taken college classes in ethics, asking: “At any time did you think hacking the Astros’ computers and using other people’s passwords was ethical?”
“No, your honor,” Correa said. Correa left the courthouse without comment, climbing into the passenger seat of a white SUV that was quickly driven away....
As part of his plea in January, Correa admitted to illicitly accessing Houston’s database through three accounts from at least March 2013 to the end of June 2014. He began by accessing the email account of one Astros employee who used to work for the Cardinals, referred to in the documents as “Victim A.” Although never mentioned by name in the documents, two of the former employees being described are believed to be Luhnow and Sig Mejdal. Both were key architects in the early days of the Cardinals’ analytic departments, and both are now baseball operations execs in Houston.
Correa took advantage of the fact that “Victim A” had used a password for his Astros email that was similar to the one he used with the Cardinals. He had gained the password when “Victim A” turned in his Cardinals laptop before leaving the team. Correa was able to access the accounts of two other Houston employees and through them see information in a database nicknamed “Ground Control.” On March 24, 2013, Correa viewed an Excel file of every amateur player eligible for the draft as well as the Astros’ internal evaluations and the scouts’ proposed bonuses to offer the players. He also looked at the Astros’ evaluations of Cardinals’ prospects.
That June, during the draft, Correa entered Ground Control and filtered the Astros’ information on players not yet drafted. He also looked at specific pages for two players, neither of whom the Cardinals drafted.
During that visit he looked at Houston’s scouting information for three of the eight players the Cardinals’ selected the previous day in rounds three through 10. At baseball’s trade deadline, July 31, Correa peered into Houston’s notes on trade discussions. In March 2014, he again entered the database and looked at 118 pages of what court documents called “confidential information.”
Cardinals general manager John Mozeliak and other team officials have stated they did not know about the breaches until investigators alerted them in early 2015.
I have reprinted the details of this "hacker's crime" because I am struggling to see what aggravating factors justified a nearly four-year prison sentence for a white-collar offenders who would appear to present no obvious risk to public safety and who has admitted his misdeeds and seems to show genuine remorse for his computer crimes. I sumrise from the press description here that the the defendant's federal sentencing guidelines range was driven up significantly by the U.S. Attorney's determination that the "estimated value" of corporate information accessed here was $1.7 million. But the fact that the defendant was ordered to pay less than $300K in restitution suggest that the actual harm to the Cardinals was far less than the economic number that appears to have driven the defendant's sentence up so much under the applicable sentencing guidelines.
Because I have not done a careful study of lots of recent computer crime cases, I am not sufficiently informed about whether this particular defendant's crime was distinctly bad or whether his sentence is distinctly severe. But I do know that modern problems in the US with mass incarceration is aggravated when we now have persons who pose no threat to public safety and who commit crimes that seem to have a relatively small impact on a huge rich company getting sent away to federal prison for a really long period of time.
July 19, 2016 in Examples of "over-punishment", Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (30)
Thursday, July 14, 2016
Alaska joins ever-growing list of "red states" enacting significant sentencing reforms
As reported in this local article, headlined "Alaska gov. signs bill to cut down on incarceration using data analytics," earlier this week the largest US state by land mass became the latest "red state" to enact significant data-driven sentencing reforms intended to reduce prison populations. Governor Bill Walker penned this op-ed in conjunction with his bill signing, which includes these notable passages highlighting the successes of reforms in other "red states":
The criminal justice reform bill makes a number of very positive changes. A 13-member criminal justice commission — comprised of judges, prosecutors and members of the law enforcement community — spent seven months participating in a rigorous, data-driven process that led to 21 recommendations.
Each recommendation was rooted in research, and most were modeled after successful policies in other states. Those recommendations became SB 91. The bill was vetted through more than 50 hearings in five legislative committees. It passed with two-thirds majorities in both the House and the Senate.
For the past decade, criminal justice policy has been developed without data or research. That needed to be changed. Senate Bill 91 is a reform effort aimed at maximizing the public safety return for each dollar spent.
Alaska has the highest per-capita rate of violent crime and one of the highest recidivism rates in the country. Rather than continue to spend more money on longer sentences that did not change criminal behavior or reduce crime, the Justice Reinvestment Initiative redirects some of those resources into proven strategies.
Senate Bill 91 reinvests $99 million over six years into crime-reduction programs, such as substance abuse treatment, re-entry services, pretrial supervision, violence prevention and victims’ services. Senate Bill 91 is expected to produce significant savings to the state by averting projected growth in the prison population and reducing the current prison population by 13 percent over the next decade. The reforms are estimated to save a total of $380 million ($211 million in direct net savings; $169 in savings from averted growth).
These reforms are working in other states:
• South Carolina has seen a 12 percent reduction in crime since reform was adopted in 2010.
• Kentucky has seen a 17 percent reduction in crime since adopting reform in 2011.
• South Dakota has seen an 8 percent reduction in crime since adopting reform in 2013.
• Texas stopped building more prisons and invested instead on programs proven to reduce recidivism. The state has now averted $3 billion in prison costs, and crime has declined 26 percent — the lowest since 1968.
All of these states reduced their prison populations and reinvested in crime-reduction strategies.
The current approach in Alaska is not working. It can be likened to taking a broken car to a mechanic who only has a wrench and a screwdriver. More time in the shop with the same limited tools won’t fix the car. Senate Bill 91 provides more tools.
About 9 in 10 of our prisoners will eventually return to our communities. Our task is to ensure proper supervision and treatment to change criminal behavior. Lower recidivism rates mean fewer prisoners and fewer victims, and a healthier, safer Alaska for all of us.
Tuesday, July 12, 2016
"Why Capital Punishment Is No Punishment at All"
The title of this post is the title of this provocative article by Jason Iuliano just recently posted to SSRN. Here is the abstract:
Capital punishment has generated an incredible amount of public debate. Is the practice constitutional? Does it deter crime? Is it humane? Supporters and opponents of capital punishment disagree on all of these issues and many more. There is perhaps only one thing that unites these two camps: the belief that the death penalty is society’s most severe punishment.
In this Article, I argue that this belief is mistaken. Capital punishment is not at the top of the punishment hierarchy. In fact, it is no punishment at all. My argument builds from a basic conception of punishment endorsed by the Supreme Court: for something to qualify as a punishment, it must be bad, in some way, for the person who is punished. By drawing upon the philosophical literature regarding death, I show that this is not the case. Contrary to our intuitions, the death penalty is not bad, in any way, for a condemned criminal.
This conclusion should not be understood to suggest that death is never bad. In most circumstances, death is bad. There are, however, situations in which it is not, and capital punishment, as employed in the United States penal system, is one such situation. By showing that capital punishment is not bad for the condemned criminal, I provide a strong constitutional objection to the practice.
Federal prosecutors want former Gov Blagojevich to get same 14-year prison term at resentencing despite a few vacated convictions
As reported in this local article, headlined "Feds: Give Blago 14 years all over again," federal prosecutors do not believe that the partial success that former Illinois governor had when appealing his corruption convictions should produce any benefit at his upcoming resentencing. Here are the details from resentencing memos filed this week:
Federal prosecutors want former Gov. Rod Blagojevich sentenced to 14 years in prison all over again. But Blagojevich hopes the federal judge who originally hammered him with that 14-year sentence will reconsider and give him as little as five years behind bars.
Blagojevich has already been locked up for four years in a Colorado prison. Next month, his battle to overturn his conviction could land him back in front of U.S. District Judge James Zagel for re-sentencing, after years of cries that Blagojevich was dealt too severe a punishment. The feds stood by the sentence in a sentencing memo filed just before midnight Monday, though.
“Corruption spreads unless it is deterred,” Assistant U.S. Attorney Debra Riggs Bonamici wrote in the memo. “Public officials who gain from corrupt deals are incentivized to do more, and successes inspire other public officials to see if they can do it too.”
Meanwhile, Blagojevich’s lawyers made an appeal for mercy and opened a window into Blagojevich’s four years behind bars. They said the former governor worked in the kitchen warehouse, taught Civil War and World War II history and studied music as a way to connect to his daughter Annie, who studied classical piano. Lawyer Leonard Goodman wrote that Blagojevich formed a band with another inmate called “The Jailhouse Rockers” that broke up when the other inmate was released.
“Blagojevich’s number one priority during his four plus years of incarceration has been to repair and mitigate the harm that his actions have done to his wife and children,” Goodman wrote. “Blagojevich speaks to his family nearly every evening.”
Some older related posts on the Blagojevich case:
- You make the sentencing call: What sentence should Blago get?
- Early buzz that feds think Rod Blagojevich's guideline range is 30 years to life in prison
- Feds asking for prison term of 15 to 20 years for Rod Blagojevich
- Insightful commentary questions why Blago is getting huge break from federal prosecutors
- "Prison is too good for Blago"
- Bold (and misguided?) prediction of 20-25 years in the federal pen for Blago
- Do would-be white-collar offenders actually "get the message" from long sentences?
- Blagojevich sentencing and the failings (and limits?) of the federal sentencing guidelines
- "Ex-Gov. Rod Blagojevich sentenced to 14 years"
Wednesday, July 06, 2016
The title of this post is the title of this notable new paper authored by Perry Moriearty and now available via SSRN. Here is the abstract:
Over the last fourteen years, the Supreme Court has issued five decisions that impose substantive constraints on our harshest punishments -- forbidding the execution of those with “mental retardation” in Atkins v. Virginia, of juveniles in Roper v. Simmons, and of those convicted of child sexual assault in Kennedy v. Louisiana, and forbidding the sentence of life without parole for juveniles who had not killed in Graham v. Florida and for all juveniles when it is imposed mandatorily in Miller v. Alabama. Because the offenders in question were categorically less culpable, the proscribed punishment was disproportionately severe, the Court held.
In many respects, these decisions reinvigorated the Court’s substantive proportionality jurisprudence, which had been virtually dormant for two decades. Yet, three of the five decisions simply have not yielded in practice what they promised in principle. The implementation of Atkins, Graham and Miller has been so protracted, litigious and encumbered by procedural obstacles that, of the nearly 3,000 inmates nominally impacted by the decisions, only a fraction has been relieved of their sentences. In the meantime, inmates with IQs of 61 have been executed, and others have died waiting to hear whether the Court’s decisions apply retroactively.
This Article argues that, despite its transformative potential, the Court’s contemporary proportionality jurisprudence has been diminished in scope and potency in the course of its implementation -- a dynamic that has been called “slippage.” In many respects, the “slippage” of these mandates can be attributed to the decisions themselves, which are deregulatory and, in concert with the Court’s broader efforts to limit federal court jurisdiction over state criminal justice processes, tie the scope of relief to the political whims and majoritarian preferences of the States. On some issues, the procedural docility of these decisions has proven so problematic that the Court has twice within the last two years had to intervene, striking portions of Florida’s capital sentencing scheme in 2014 and, just weeks ago, declaring in Montgomery v. Louisiana that Miller does in fact apply retroactively.
While the Court’s reluctance to regulate the implementation of its proportionality mandates may be rationalized as necessary deference to the principles of federalism and finality, these justifications are far less compelling in the Eighth Amendment context. The very establishment of federal habeas, executive clemency, and Supreme Court review suggests that the Framers themselves recognized that there are normative points when interests in federalism and finality simply must yield. By contrast, the risk of offending constitutional norms through slippage may be at their most pronounced since one of the Eighth Amendment’s primary purposes is to protect the politically powerless from government overreach. I conclude that, if the Court is serious about implementing in practice the substantive constraints on punishment it has imposed over the last fourteen years, it must accompany its substantive mandates with a minimum threshold of procedural prescription.
July 6, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Jackson and Miller Eighth Amendment cases, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Deep dives into realities of sex offender registries two decades after they started to proliferate
Vox has these two lengthy new pieces looking at the realities of sex offender registries:
Here is an extended excerpt from the first of these pieces:
The registry was designed for "sexual predators" who repeatedly preyed on children (at least according to the fears of 1990s policymakers). The purpose was supposed to be not punishment but prevention. The theory: Sexual predators" were unable or unwilling to control their urges, and the government could not do enough to keep them away from children, so the job of avoiding "sexual predators" needed to fall to parents....
Twenty years later, the focus on sex crimes has shifted from sexual abuse of children to sexual assault and rape. The idea that criminals can’t control their behavior has been replaced by attention to the cultural and institutional failures that allow rapes to happen and go unpunished; the idea that it’s up to potential victims to change their behavior is usually criticized as victim blaming.
Yet the sex offender registry is still going strong.
It hasn’t worked as a preventive tool. Instead, it's caught up thousands of people in a tightly woven net of legal sanctions and social stigma. Registered sex offenders are constrained by where, with whom, and how they can live — then further constrained by harassment or shunning from neighbors and prejudice from employers.
Some of the people on the sex offender registry have had their lives ruined for relatively minor or harmless offenses; for example, a statutory rape case in which the victim is a high school grade younger than the offender.
Others are people like Brock Turner — people who have committed serious crimes that are nonetheless very different from the ones the registry was supposed to prevent, and which the registry might, in fact, make harder to fight.
This happens often in the criminal justice system: Something designed for one purpose ends up getting used for something else. As usual, it happened because people can't agree on what society wants to do with criminals to begin with.
Thursday, June 30, 2016
"The Power of Pell Grants for Prisoners"
The title of this post is the headline of this new New Yorker commentary authored by Clint Smith. Here are excerpts:
Last Thursday, the Obama Administration selected sixty-seven colleges and universities across twenty-seven states to participate in the Second Chance Pell Pilot Program, which aims to “create a fairer, more effective criminal justice system, reduce recidivism, and combat the impact of mass incarceration on communities.” The new initiative could make Pell Grants available to as many as twelve thousand people behind bars. Secretary of Education John B. King, Jr., made sure to address the aforementioned concerns around funding head on, stating that the resources allotted to the pilot program make up less than 0.1 per cent of the thirty-billion-dollar Pell Grants program, and will in no way cut into funding for current or future Pell Grant recipients who are not incarcerated.
As advocates of prison education might note, twelve thousand is a small proportion of the 2.3 million people currently in prison. But the executive action by the Obama Administration is a progressive step forward on correctional education, especially given that legislation like the Restoring Education and Learning (real) Act — which would eliminate the provision in the crime bill barring prisoners in state or federal institutions from Pell Grant eligibility — remains stalled in Congress. Social scientists have known for some time that prison-education programs are a cost-effective and successful means of reducing recidivism. A study by the rand Corporation in 2013 found that incarcerated individuals who participated in educational programs were forty-three per cent less likely to recidivate within three years than those who did not. It also found that correctional education increased the likelihood of obtaining employment once released, with those who participated in programming during their time behind bars thirteen per cent more likely to obtain a job than those who did not....
Being incarcerated does not mean being devoid of the capacity to learn, grow, and think, and it’s critical that prisons provide spaces where learning can be both cultivated and encouraged.
This is what makes the Obama Administration’s program so important. Pell Grants provide resources that assist colleges in building their capacity in prisons, by covering the cost of books, tuition, and fees. But, though certainly beneficial to those men and women who will receive the grants, there are limits to what the program offers. For example, to qualify, a person must be eligible for release within five years of enrolling, which doesn’t address the educational needs of those serving long-term or life sentences.
The benefits of prison education go beyond lowering recidivism rates and increasing post-release employment. It can also rekindle a sense of purpose and confidence. For Jackson, participating in the Boston University prison-education program, and moving closer to obtaining a bachelor’s degree, has fundamentally changed his sense of self — and increased the likelihood that he’ll stay out of prison if the parole board approves his release. The Second Chance Pell Pilot Program means that more people like Jackson will have an opportunity to take college-level classes, improving their chances of remaining out of prison and also of giving them back a sense of purpose that has otherwise been stripped away. Or, as Jackson said about his work, it’s “like you’re doing something with your life.”
Saturday, June 25, 2016
"Trauma Informed Juvenile Justice"
The title of this post is the title of this new paper authored by Samantha Buckingham now available via SSRN. Here is the abstract:
The juvenile justice system fails to account for the astounding rates of childhood trauma exposure amongst system-involved youth. Trauma, an experience threatening to life, safety, or well-being, overwhelms an individual’s ability to cope. The experience of trauma is so pervasive amongst juvenile justice youth that a recent study found that 93% of children in an urban detention facility had experienced at least one traumatic event in the past year, and for more than half of those youth the trauma they reported was witnessing violence. When left untreated, or treated without targeted trauma-specific therapies, trauma sufferers are vulnerable to commit offenses as children and as adults. The stakes are high: untreated trauma can turn people into ticking time bombs bound to respond to triggers and misinterpret events, sometimes responding violently, even to mundane events in their daily lives. The good news is that when trauma is identified and treated with appropriate trauma-specific methods, child trauma sufferers in particular can heal, overcome their trauma, and grow in positive ways.
The juvenile justice system has yet to catch up with contemporary understanding of trauma’s impact on offending and the latest best practices for treatment of trauma. Specifically, the juvenile justice system fails to accurately identify trauma and often employs counter-productive responses to juvenile offending, such as removal from the home, programming and treatment that is general rather than trauma-specific, and the over-use of detention. Poor youth of color, the most marginalized among us, are the children who suffer the greatest from the current failure to incorporate a trauma-focused response in the juvenile justice system and are subjected to incarceration at unreasonably high rates. Incarceration itself is traumatic, it exacerbates pre-existing trauma, and it is counterproductive to long-term community safety.
This Article proposes four trauma-informed reforms: (1) create a presumption of trauma, (2) mandate trauma identification of youth in the juvenile justice system, (3) implement trauma-informed procedures, and (4) utilize trauma-informed dispositions, which will dramatically reduce our over-reliance upon incarceration in favor of safe-settings in the community. Endowed with trauma-focused reforms, the juvenile justice system is poised to identify and appropriately respond to the many traumatized children who come to its attention early enough to make a difference, capitalizing on the incredible potential for growth and resilience children possess, realizing the paramount goal of rehabilitation, promoting long-term community safety, and working to eliminate the incarceration of children.
Wednesday, June 22, 2016
Making the case for enfranchisement to create a "prison constituency"
Corey Brettschneider has this lengthy new commentary at Politico with this lengthy full headline: "Why Prisoners Deserve the Right to Vote: Giving inmates the vote isn’t just constitutionally the right thing to do, it could also help the country solve one of its most intractable problems." I recommend the full piece, and here are excerpts from its closing sentiments:
Perhaps the most important reason to allow prisoner voting is that prisons, not just prisoners, would benefit. Prisoners need the vote to serve as the “natural defenders” of their own interests. But in defending their own interests, prisoners could substantially improve the prison system itself.
We can start with the issue of prisoner abuse. We already know that prisoners are subject to abusive and inhumane conditions. In a 2011 ruling that held overcrowded California prisons in violation of the Eighth Amendment, Justice Anthony Kennedy wrote that in California alone, an inmate “needlessly dies every six or seven days.” Plenty of other prison practices, such as solitary confinement, are just now receiving public scrutiny, and there are likely more troubling conditions we don’t know about. Under the current system, ending abusive practices requires years of expensive litigation as prisoners sue over maltreatment and prisons adjust to the rulings. We could improve prisons much more quickly and cheaply by creating a political constituency of prison voters.
How would that work? Obama’s historical 2015 visit to a federal prison was noteworthy because politicians rarely listen to those incarcerated. A prison and jail constituency, numbering roughly 2 million across 50 states, would make it routine for politicians to hold town halls and seek ways to improve prison and jail conditions from those who are subjected to them. This is not coddling prisoners. More and more politicians are looking to reform our criminal justice system, and this would be a common sense way to help them identify needed changes.
Of course, granting the right to vote is not enough to create a robust prison constituency. Prisoners will also need to be granted the right to speak freely and receive information, both of which are rights that are often limited for prisoners currently. Superstar litigator and former Solicitor General Paul Clement has already filed a lawsuit defending the right of prisoners to gain access to news about public life. Indeed, government can be held accountable only when citizens have information about the actions of their representatives.
Many will resist the idea of a prison constituency. The point of prisons, they say, is to inflict punishment, not to allow organizing. But this is shortsighted. Prison is itself already severe punishment. The deprivation of liberty and the loss of control over everyday interaction, including the ability to see one’s loved ones on a daily basis, are all severe constraints imposed by incarceration. One can be punished without being subjected to civic exile.
Some will argue that it is enough to allow prisoners to regain their right to vote after release. But we cannot expect prisoners to be deprived of all rights and then emerge from prison ready to use them well. The new consensus around post-release enfranchisement demands a smarter way to think about prisoners’ political rights behind bars. A prison constituency with rights to vote and related rights of free speech can engage in civic activism that will continue after release. Although voters in Massachusetts saw prisoner political participation as a kind of insurrection, it is nothing like the violent insurrections that marked prisons of the 1970s. As Joe Labriola, chairman of a Massachusetts civic prison organization called the Norfolk Lifers Group, put it, “In the ’70s, we thought we could make change with violence. Our whole point now is to make prisoners understand that we can make changes by using the vote. We have the ability to move prisons in a new direction.”
Research by Avidit Acharya, Matthew Blackwell and Maya Sen suggests another reason to care about voting in prison: They show that even temporary gaps in voting will have a long-term impact on participation. If we really care about felons’ post-release political participation, it is important that they be able to participate while they are in prison....
The creation of a prison constituency is not yet on the national agenda. But the increasing end to post-felony disenfranchisement makes this a good time to think about deeper changes to the way we treat the incarcerated. In the meantime, alternative measures could move things in the right direction: We should affirm nationally and, if need be, litigate for the right of prisoners to form PACs on the model of the Massachusetts group. Although legitimate concerns exist about the impact of PAC money on politics, these committees do provide a way to further a group’s policy interests. We can no longer grant that right to non-incarcerated citizens as a matter of free speech and deny it to prisoners, who are, according to the Supreme Court, citizens no less. The backlash from Massachusetts’ citizens was from an era in which mass incarceration was lauded and prison organizing was anathema in national politics. But today, citizens from both political parties are mobilizing against the harsh prison policies of the 1990s. Giving prisoners the right to free political speech is a sensible corrective to our misguided practice of mass incarceration.
In the end, restoring these basic rights is not only the right thing to do constitutionally; it could also present positive solutions to a major national political problem. The prison system would be more effective if it were accountable to its constituents. Prisoners have often committed heinous crimes. But they remain a part of our democratic polity, and we can learn from what they have to say.
Tuesday, June 21, 2016
Intriguing review of Georgia's intriguing modern history with capital punishment
Because many modern landmark Supreme Court death penalty cases came from Georgia (e.g., Furman, Gregg, Coker, McKlesky), the Peach State will always have a plum role in any story of the modern history of the death penalty. And this recent local article, headlined "Georgia executions rise, while death sentences plummet," details why Georgia's most recent history with capital punishment also merits attention. Here is how the piece starts:
It’s Georgia’s new death penalty paradox: the state is executing inmates at a record clip, but prosecutors almost never seek the death penalty anymore, and juries refuse to impose it when they do.
During each of the past two years, Georgia executed five inmates. If, as expected, the state carries out another execution later this year, it will have put more people to death — six — in 2016 than in any single year since the U.S. Supreme Court reinstated capital punishment four decades ago. But the last time a Georgia jury imposed a death sentence was in March 2014. And district attorneys have been turning away from death as a sentencing option, more often allowing killers to receive sentences of life in prison without the possibility of parole.
A decade ago, state prosecutors filed notices of intent to seek the death penalty against 34 accused killers. That number dropped to 26 in 2011 and to 13 last year. How many times have Georgia DAs sought the death penalty so far this year? Once. And this was against a man accused of killing a priest — a clergyman who had signed a document saying if he died a violent death he did not want his killer to face the death penalty.
The incongruity of the increasing numbers of executions and the plummeting numbers of death sentences took both prosecutors and defense attorneys by surprise. “Wow,” Atlanta criminal defense attorney Akil Secret said. “Maybe the times are changing.” The precipitous declines raise the question of whether prior capital sentences were justified, Secret said. “If a life-without-parole sentence is sufficient for today’s worst crimes, why isn’t it sufficient for those crimes from the past where death was imposed?”
Sunday, June 19, 2016
"Collateral Consequences and the Preventive State"
The title of this post is the title of this article by Sandra Mayson just posted to SSRN. Here is the abstract:
Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs) — legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence — have relegated that group to permanent second class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should correct course by classifying CCs as “punishment,” the consensus holds, such that constitutional constraints on punishment will apply.
This Article argues for a different approach. The consensus view overlooks the fact that most CCs invoke a judgment of dangerousness as the basis for limiting individual liberty. Given their predictive logic, the Article contends that there are serious costs to classifying (most) CCs as punishment and that the courts have reached a defensible result in declining to do so. Where they have erred is in assuming that, as mere regulation, CCs are benign. On the contrary, laws that restrict certain people’s liberty solely on the basis of their perceived propensity to commit future crimes raise both moral and constitutional concerns. Rather than classify CCs as punishment, this Article contends that the better approach to constitutional adjudication of most CCs — for both theoretical and tactical reasons — is to recognize them as predictive risk regulation and seek to develop appropriate constraints.
Thursday, June 16, 2016
"Private Prisons and the Marketplace for Crime"
The title of this post is the title of this notable new paper authored by andré douglas pond cummings and Adam Lamparello now available via SSRN. Here is the abstract:
A saner and safer prison policy in the United States begins by ending the scourge of the private prison corporation and returning crime and punishment to public function. We continue by radically reimagining our sentencing policies and reducing them significantly for non-violent crimes. We end the War on Drugs, once and for all, and completely reconfigure our drug and prison policy by legalizing and regulating marijuana use and providing health services to addicts of harder drugs and using prison for only violent drug kingpins and cartel bosses. We stop the current criminalization of immigration in its tracks and block the private prison lobby from influencing legislation in our current immigration policy debates. We provide prisoners a fair wage for work done in prison, allowing them a re-entry account upon release filled with the money they earned while working in prison. We provide humane and habitable prison cells populated by one inmate, as saner and safer crime and punishment policies will imprison far fewer American citizens.
At their core, private prisons reflect a continuation of policies that have tainted the criminal justice system with perceptions of arbitrariness, unfairness, and injustice. As this article has shown, the continued proliferation of private prisons does not save taxpayers money, increase prison safety, or elevate the conditions of the prison environment. Conversely, they do the opposite. Inmates are being physically abused, denied medical care, and forced to endure inhumane living conditions, as corporations like CCA and GEO Group realize higher profits from a marketplace in which prisoners are in high demand. Indeed, CCA is a textbook example of the grave injustices that can occur when profit maximization clashes with human dignity. The time has arrived for private prisons to be eliminated and for legislators and courts to realize that this experiment is one that has failed. Until that time comes, Congress should implement purpose-driven reforms to ensure that private prisons can no longer be institutions where inmates have rights but no remedies.
Wednesday, June 15, 2016
"Substantive and Procedural Silence"
The title of this post is the title of this intriguing new paper authored by Erin Sheley now available via SSRN. Here is the abstract:
Perceptions of the procedural fairness of the criminal justice system turn on whether it gives individuals and communities a “voice,” or a forum in which to tell their stories. If the system imposes unwanted silence on a party its legitimacy in the eyes of the public decreases. Despite the extensive literature on the many specific applications of silence in the justice system, no attempt has yet been made to break down the relationship between the victim’s silence and the defendant’s across the disparate doctrines of criminal law, or the importance of these interconnections to the expressive purposes of punishment, particularly in a world where punishment so frequently turns on the outcome of plea negotiations.
Such an effort requires us to recognize a distinction between procedural silence, which is grounded in the individual rights of each party, and what should be understood as substantive silence, which can form part of both the definition of criminal conduct on the front end and, on the back end, of the judgment and sentence in a particular case. This article has two purposes. One, it provides the first full taxonomy of the role of silence in the criminal law and identifies the key interactions between procedural and substantive silence. And, two, it offers normative suggestions — particularly to prosecutors — for managing silence in a way that will better achieve justice in light of the cumulative relationship between substance and procedure.
Monday, June 13, 2016
"Taking Dignity Seriously: Excavating the Backdrop of the Eighth Amendment"
The title of this post is the title of this notable new paper authored by Meghan Ryan now available via SSRN. Here is the abstract:
The U.S. punishment system is in turmoil. We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions. Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented. The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess.
The Court has been consistent in stating that a focus on offender dignity is at the core of the Amendment’s prohibition on cruel and unusual punishments, but there has been virtually no analysis of what this dignity requirement means. This Article takes the first foray into this unexplored landscape and finds that the Constitution demands that the individuality of offenders be considered in imposing and carrying out sentences. While this appears to be a simple concept, it raises significant concerns about several modern-day sentencing practices. Punishments rooted in pure utilitarianism, by neglecting the importance of the individual offender, run afoul of this dignity demand. This sheds doubt on the propriety of some judges’ assertions that defendants’ freestanding innocence claims cannot stand because policy considerations like finality are of paramount importance; an individual offender cannot be ignored purely for the sake of societal goals.
For the same reason, the importance of individual dignity should lead us to question statutes supporting only utilitarian aims of punishment. While this raises questions about the constitutionality of pure deterrence, rehabilitation, and incapacitation, these purposes of punishment may be reconceptualized to account for the individual offender. For example, rehabilitation could be reformulated to consider not only the offender’s effects on society when he is returned to the community but also whether the offender’s character has been reformed. Finally, the importance of Eighth Amendment dignity raises questions about the constitutionality of mandatorily imposed punishments, which overlook the importance of individualization in sentencing. If we take seriously the dignity core of the Eighth Amendment, then many of these practices must be reconsidered.
June 13, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Wednesday, June 08, 2016
"Salience and the Severity Versus the Certainty of Punishment"
The title of this post is the title of this notable new essay authored by Murat Mungan now available via SSRN. Here is the abstract:
The certainty aversion presumption (CAP) in the economics of law enforcement literature asserts that criminals are more responsive to increases in the certainty rather than the severity of punishment. In simple economic models, this presumption implies that criminals must be risk-seeking. Some scholars claim that this and similar anomalous implications are caused by the exclusion of various behavioral considerations in theoretical analyses.
This article investigates whether a model in which criminals over-weigh probabilities attached to more salient outcomes (as in Bordalo et al. (2012) and (2013)) performs better than the simple expected utility theory model in explaining CAP-consistent-behavior. The analysis reveals that the answer is negative unless the probability of punishment is unreasonably high. This finding suggests that we should exercise caution in incorporating salience -- a la Bordalo et al.-- in simple law enforcement models.
"My brain made me do it: will neuroscience change the way we punish criminals?"
The title of this post comes from the headline of this recent interesting press piece from Australia that a helful reader sent my way. The piece does a nice job talking through in simple term the possible relationship between theories of punishment and modern neuroscience. Here are excerpts:
Australian law may be on the cusp of a brain-based revolution that will reshape the way we deal with criminals. Some researchers, such as neuroscientist David Eagleman, have argued that neuroscience should radically change our practices of punishment. According to Eagleman, the courts should give up on the notion of punishment altogether and instead focus on managing criminals and containing their behaviour in order to keep the rest of us safe.
Is this a good idea? And is this how Australian judges are responding to our increasing knowledge of the neurobiological bases of behaviour?...
[S]ome academics, such as American psychologists Joshua Greene and Jonathan Cohen, have argued that consequentialist considerations will be all that is left after neuroscience revolutionises criminal law. Punishment as retribution will be consigned to history.
According to Greene and Cohen, retributivism relies on the notion that people have free will. They say the advance of neuroscience will cure us of that notion by opening the black box of the mind and revealing the mechanistic processes that cause all human behaviour. Once these causes are revealed, we will give up the idea that people are responsible for their bad actions.
We will start to think that a criminal’s frontal lobe impairment caused him to lash out, for instance, and focus on how we can prevent this happening again, rather than thinking they chose to punch their victim and thus they deserve punishment. According to Greene and Cohen, this will make crime reduction the only goal. If they are right, punishment practices will move in the direction advocated by Eagleman.
Greene and Cohen made their argument about the demise of retributivism ten years ago. In light of their predictive claims, it is interesting to examine how the legal system is actually responding to the increasing use of neuroscientific evidence. We can get an idea of what is happening in Australia from cases in the Australian Neurolaw Database, which was launched in December 2015. The database is a joint project between Macquarie University and the University of Sydney, and includes both Australian civil and criminal cases that employed evidence derived from neuroscience.
Interestingly, the sentencing cases in the database do not suggest retributive justice is being abandoned when the court is confronted with evidence of impairment to an offender’s brain. Where used in sentencing, neuroscience evidence is often put forward in relation to assessment of the moral culpability of the offender. It is thus used to help determine how much punishment an offender deserves.
This is very different to suggesting moral culpability ceases to be a relevant consideration in the determination of punishment, or that courts should pay no regard to questions of desert. It presupposes that questions about appropriate punishment are important ones to answer correctly.
One example of the way Australian courts regard evidence derived from neuroscience is in the sentencing of Jordan Furlan in 2014. In sentencing 49-year-old Furlan for a violent incident involving a 76-year-old victim, Justice Croucher considered the impact of evidence of a brain injury some years prior to the offence, on Furlan’s moral culpability. Justifying a sentence of three years and six months, the judge said the offender’s “moral culpability was reduced, but only to a moderate degree because his judgment was impaired as a result of his acquired brain injury". The judge went on to say that just punishment was an important factor (among others) in crafting the sentence....
We cannot be sure how neuroscience will affect the law in future. Indeed, there may even be a backlash against this form of evidence. What can be said is that ... Australian judges still consider moral culpability, even in the face of neuroscientific evidence of impaired mechanisms. They do not move to purely consequentialist considerations. This means retributivism is still alive and well, and just punishment still matters to Australian courts. So, at least for now, the impact of neuroscience is not revolutionary.
Monday, June 06, 2016
US Sentencing Commission posts big new report authored by its Tribal Issues Advisory Group
I received via email today a US Sentencing Commission notice about these notable new tribal sentencing activities:
Today, the Commission’s Tribal Issues Advisory Group (TIAG) released its final report addressing federal sentencing issues related to American Indian defendants and victims and to offenses committed in Indian Country.
The Commission has scheduled a public hearing for July 21, 2016 to receive testimony from members of the TIAG on this report. The TIAG will present its findings and subsequent recommendations for amending the federal sentencing guidelines.
The full TIAG report runs more than 100 pages, but it starts with this helpful, brief and interesting executive summary:
The Tribal Issues Advisory Group (“the TIAG”) makes several recommendations to the United States Sentencing Commission (“the Commission”) for revisions and additions to the Sentencing Guidelines (“the Guidelines”), for tribal consultation, and for other changes. The TIAG suggests that the following revisions be made to the Guidelines:
(1) Adding an application note and commentary to USSG §4A1.3 to guide when tribal court convictions may be considered for a possible upward departure in the defendant’s criminal history category;
(2) Including in USSG §1B1.1 a definition of “court protection order;”
(3) Amending USSG §5H1.1 regarding the “age” policy statement; and
(4) Adding a departure concerning juvenile and youthful offenders as USSG §5K2.25.
The TIAG recommends that the Commission adopt certain policy changes including:
(1) Establishing a standing advisory group on tribal issues to assist the Commission on changes to the Guidelines impacting American Indian defendants, to advise on and assist in tribal consultation, and to form the basis for a new TIAG when appropriate;
(2) Creating a process for the collection of better data on federal court sentencing to allow for study of the protection order provisions of the Guidelines and analysis of sentencing disparity concerns as detailed herein; and
(3) Considering the recommendations of other working groups regarding juvenile offenders, including possibly collapsing sentencing zones A, B, and C into a single zone.
The TIAG also recommends that the Commission support changes in federal law and practice including:
(1) Congressional action that incentivizes states and requires appropriate federal agencies to collect data on state court sentencing of defendants generally and Native American defendants in particular so that better data exists to analyze whether and where there truly are sentencing disparities;
(2) Increased use of pretrial diversion agreements by United States Attorneys’ offices;
(3) Increased use by law enforcement in Indian country of misdemeanor statements of charges and Central Violations Bureau misdemeanor citations to non-Indians in Indian country;
(4) Better training of federal employees who work in Indian country about Native American history and culture; and
(5) Revisions to the Juvenile Delinquency Act, 18 U.S.C. § 5032, to require federal consultation with tribes in certain juvenile case prosecutions.
This Report provides the basis for and an explanation of these and other recommendations.
Sunday, June 05, 2016
Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing
The Wall Street Journal has this effective new article discussing the case now before the Wisconsin Supreme Court considering a defendant's challenge to the use of a risk assessment tool in the state's sentencing process. The article's full headline notes the essentials: "Wisconsin Supreme Court to Rule on Predictive Algorithms Used in Sentencing: Ruling would be among first to speak to legality of risk assessments as aid in meting out punishments." And here is more from the body of the article:
Algorithms used by authorities to predict the likelihood of criminal conduct are facing a major legal test in Wisconsin. The state’s highest court is set to rule on whether such algorithms, known as risk assessments, violate due process and discriminate against men when judges rely on them in sentencing. The ruling, which could come any time, would be among the first to speak to the legality of risk assessments as an aid in meting out punishments.
Criminal justice experts skeptical of such tools say they are inherently biased, treating poor people as riskier than those who are well off. Proponents of risk assessments say they have elevated sentencing to something closer to a science. “Evidence has a better track record for assessing risks and needs than intuition alone,” wrote Christine Remington, an assistant attorney general in Wisconsin, in a legal brief filed in January defending the state’s use of the evaluations.
Risk-evaluation tools have gained in popularity amid efforts around the country to curb the number of repeat offenders. They help authorities sort prisoners, set bail and weigh parole decisions. But their use in sentencing is more controversial.
Before the sentencing of 34-year-old Eric Loomis, whose case is before the state’s high court, Wisconsin authorities evaluated his criminal risk with a widely used tool called COMPAS, or Correctional Offender Management Profiling for Alternative Sanctions, a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs. The assessment includes queries like, “Did a parent figure who raised you ever have a drug or alcohol problem?” and “Do you feel that the things you do are boring or dull?” Scores are generated by comparing an offender’s characteristics to a representative criminal population of the same sex.
Prosecutors said Mr. Loomis was the driver of a car involved in a drive-by shooting in La Crosse, Wis., on Feb. 11, 2013. Mr. Loomis denied any involvement in the shooting, saying he drove the car only after it had occurred. He pleaded guilty in 2013 to attempting to flee police in a car and operating a vehicle without the owner’s consent and was sentenced to six years in prison and five years of supervision. “The risk assessment tools that have been utilized suggest that you’re extremely high risk to reoffend,” Judge Scott Horne in La Crosse County said at Mr. Loomis’s sentencing.
Mr. Loomis said in his appeal that Judge Horne’s reliance on COMPAS violated his right to due process, because the company that makes the test, Northpointe, doesn’t reveal how it weighs the answers to arrive at a risk score. Northpointe General Manager Jeffrey Harmon declined to comment on Mr. Loomis’s case but said algorithms that perform the risk assessments are proprietary. The outcome, he said, is all that is needed to validate the tools. Northpointe says its studies have shown COMPAS’s recidivism risk score to have an accuracy rate of 68% to 70%. Independent evaluations have produced mixed findings.
Mr. Loomis also challenged COMPAS on the grounds that the evaluation treats men as higher risk than women. COMPAS compares women only to other women because they “commit violent acts at a much lower rate than men,” wrote Ms. Remington, the state’s lawyer, in her response brief filed earlier this year in the Wisconsin Supreme Court. Having two scales — one for men and one for women — is good science, not gender bias, she said.
The parties appeared to find common ground on at least one issue. “A court cannot decide to place a defendant in prison solely because of his score on COMPAS,” Ms. Remington acknowledged, describing it as “one of many factors a court can consider at sentencing.” Her comments echoed a 2010 ruling by the Indiana Supreme Court holding that risk assessments “do not replace but may inform a trial court’s sentencing determinations.”
June 5, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)
Saturday, June 04, 2016
"What Do Criminals Deserve?"
The title of this post is the title of this new book chapter authored by Douglas Husak now available via SSRN. Here is the abstract:
I attempt to specify the precise role played by desert in a justification of state punishment. To this end, I contrast the questions that must be resolved from those that need not be addressed at all or cannot be answered to anyone's satisfaction. I argue that much can be learned about the justification of state punishment by focusing on situations in which persons react appropriately to culpable wrongdoing perpetrated by non-state actors. I conclude that the greatest difficulty for desert theorists is to explain why the deprivations and stigma legitimately inflicted by victims should take the form of hard treatment and censure imposed by the state. I offer a few inconclusive suggestions about how this latter problem might be solved.
Thursday, June 02, 2016
Praise for recent Nesbeth opinion using collateral consequences to justify probation sentence for federal drug offense
Lincoln Caplan has authored this New Yorker piece, headlined "Why a Brooklyn Judge Refused to Send a Drug Courier to Prison," to praise US District Judge Block's discussion of the impact and import of collateral consequences in his Nesbeth sentencing opinion (first discussed here). Here are excerpts:
Block explained that he had imposed a year of probation, with two special conditions: six months of home confinement (“to drive home the point that even though I have not put her in prison, I consider her crimes to be serious”) and a hundred hours of community service (“in the hope that the Probation Department will find a vehicle for Ms. Nesbeth, as an object lesson, to counsel young people as to how their lives can be destroyed if they succumb to the temptation to commit a crime, regardless of their circumstances”).
But the bulk of his opinion — the reason federal judges throughout the country have been sending it to one another as a cutting-edge view on an important issue in sentencing—is about why he “rendered a non-incarceratory sentence.” He wrote that it was largely “because of a number of statutory and regulatory collateral consequences she will face as a convicted felon” — restrictions that the federal government, as well as every state government, imposes on anyone convicted of a crime, but especially a felony. A broad range of the restrictions, he said, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.”
Block asked the U.S. Attorney’s office and the Federal Defenders of New York, which represented Nesbeth, to provide him with a list of the collateral consequences that she faces as a convicted felon. The government identified what it described as the “handful” that are “potentially relevant.” The loss of a driver’s license is the least onerous. She is also ineligible for student grants, loans, or work assistance for two years, and banned for life from receiving food stamps and Temporary Assistance for Needy Families, though Connecticut could grant her an exemption. She and her family can be denied federally assisted housing for a “reasonable time,” and she cannot be issued a passport until her probation is finished, which matters to Nesbeth because, as her lawyer told the judge, her “father, grandmother, and extended family all reside abroad.”
The judge recounted that federal law imposes considerably more than a handful of consequences, “nearly 1,200 collateral consequences for convictions generally, and nearly 300 for controlled-substances offenses.” Nesbeth’s counsel, Amanda David, of the Federal Defenders, said federal laws will make it difficult for her client to become an educator because they provide money “for background checks of all employees of educational agencies,” and a conviction for a drug felony “can be used as grounds for denying employment for potential employees who want to be involved in providing care to children under age 18.” David also reported that Connecticut automatically bars anyone from getting a teaching certificate for five years after being convicted of a drug felony....
The main conclusion of the judge’s opinion is that, while the law allowed him to take account of the civil penalties when he sentenced her, there was nothing he could do to protect her from them. He joined criminal-justice experts in encouraging Congress and state legislatures “to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted,” and suggested that they do the country “more harm than good.” He didn’t say so, but for many legislatures that would mean carefully assessing these punishments for the first time. As the criminal-justice scholar Jeremy Travis wrote, in 2002, legislatures have often adopted collateral consequences in unaccountable ways: “as riders to other, major pieces of legislation,” which are “given scant attention.” They are, Travis said, “invisible ingredients in the legislative menu of criminal sanctions.”
The judge made clear why the severity of collateral consequences—authorizing discrimination in education, employment, housing, and many other basic elements of American life—means that anyone convicted of a felony is likely to face an arduous future. This predicament has been called modern civil death, social exclusion, and internal exile. Whatever it is called, its vast array of penalties kicks in automatically with a conviction, defying the supposedly bedrock principle of American law that the punishment must fit the crime.
Prior related post:
- Federal judge justifies below-guideline sentence of probation for drug importer because of "statutory and regulatory collateral consequences she will face as a convicted felon"
June 2, 2016 in Booker in district courts, Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)
Monday, May 30, 2016
Making the case for "Why Latinos Should Invest in Sentencing Reform"
Three notable advocates recently penned this notable Huffington Post commentary that has as its headline the quoted portion of this post's title. Here is how the piece starts and ends:
Partisan gridlock has halted many important policies from becoming realities. One of the promising policies, the Sentencing Reform and Corrections Act of 2015, is currently stalled in the Senate. If enacted, the legislation will have a colossal effect on Latinxs. Once incarcerated, Latinxs face limited economic opportunity, family trauma, turmoil, and deportation — consequences that do not in any way reflect reasonable punishment for the often minor infractions that occur.
Rita Becerra is one of those Latinxs. Rita, who was a single mother of two children and a new grandmother in 1994, was arrested and sentenced to 27 years behind bars for drug charges stemming from her live-in boyfriend’s involvement in the drug trade. Prior to that, Rita had never even had a traffic ticket. Although Rita had never touched any drugs or delivered them, she was charged with conspiracy with intent to distribute. Rita’s boyfriend was able to reduce his sentence to 9 years because he provided details about criminal activities to the prosecution. Yet, Rita could not plea bargain because the only information she knew of concerned her boyfriend’s illegal enterprises and the prosecution already had that knowledge.
This dilemma, where those most involved with a crime possess the lion’s share of information and can bargain for time off while those who may have little involvement — and thus little knowledge of crimes — receive a full sentence, is a frustratingly common occurrence. Rita’s story is as tragic and unjust as it is commonplace. Women are the fastest growing group of prisoners, boasting an incarceration rate almost double that of men leaving more than one million women behind bars.
Another alarming trend is that Latinxs are unjustly targeted because of policies and practices that perpetuate their involvement in the criminal legal system and immigration system. Consequently, Latinxs are twice as likely to be incarcerated as whites and are over-represented in state prisons in 31 of the 50 U.S. states. They are also overrepresented in the federal system, where Latinxs—who are 17.4 percent of the U.S. population—make up 33.8 percent of the incarcerated population in federal prisons. Indeed, today, 1 in every 6 Latino men and 1 in every 45 Latina women can expect to go to prison in their lifetime. As a result, 1 in 28 Latinx children in the U.S. have an incarcerated parent compared to 1 in 57 white children. Research shows that children who grow up with an incarcerated parent are more likely to go to prison themselves, in addition to suffering from a host of long-term effects and disabilities like attention deficits, mental illness, and physical health issues such as obesity, trauma, depression, and anxiety....
Make no mistake: criminal justice reform is a Latinx issue. But more importantly, it is a human rights issue of epic proportions that touches the lives of many people just like Rita. It demands our immediate attention and Congress’ immediate action.
Friday, May 27, 2016
"Killing Dylann Roof: A year after Obama saluted the families for their spirit of forgiveness, his administration seeks the death penalty for the Charleston shooter."
The title of this post is the headline of this intriguing Atlantic commentary authored by Ta-Nehisi Coates. I urge everyone, both those for and against capital punishment, to read he entire piece. Here are excerpts:
On Tuesday, Attorney General Loretta Lynch announced she would seek the death penalty for Dylann Roof. It has not been a year since Roof walked into Emanuel African Methodist Episcopal Church and murdered nine black people as they worshipped. Roof justified this act of terrorism in chillingly familiar language — “You rape our women and you’re taking over our country.” The public display of forgiveness offered to Roof by the families of the victims elicited bipartisan praise from across the country. The president saluted the families for “an expression of faith that is unimaginable but that reflects the goodness of the American people.” How strange it is to see that same administration, and these good people, who once saluted the forgiveness of Roof, presently endorse his killing....
There are defensible reasons why the American state — or any state — would find [the nonviolent Martin Luther] King’s ethic hard to live up to. States are violent. The very establishment of government, the attempt to safeguard a group of people deemed citizens or subjects, is always violent. In America, a president is the commander in chief. Anyone who voted for Obama necessarily voted for violence. Furthermore, there is indisputable evidence that violence sometimes works. The greatest affirmation of civil rights in American history — emancipation — was accomplished at gun-point.
But one has to be careful here not to fall into the trap of lionizing killing, of pride in the act of destroying people even for just ends. Moreover, even if nonviolence isn’t always the answer, King reminds us to work for a world where it is. Part of that work is recognizing when our government can credibly endorse King’s example. Sparing the life of Dylann Roof would be such an instance — one more credible than the usual sanctimonious homilies delivered in his name. If the families of Roof's victims can find the grace of forgiveness within themselves; if the president can praise them for it; if the public can be awed by it — then why can't the Department of Justice act in the spirit of that grace and resist the impulse to kill?
Perhaps because some part of us believes in nonviolence not as an ideal worth striving for, but as a fairy tale passed on to the politically weak. The past two years have seen countless invocations of nonviolence to shame unruly protestors into order. Such invocations are rarely made to shame police officers who choke men to death over cigarettes and are sent back out onto the beat. And the same political officials will stand up next January and praise King even as they act contrary to his words. “Capital punishment is against the best judgment of modern criminology,” wrote King, “and, above all, against the highest expression of love in the nature of God.”
A few prior related posts:
- Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
- Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
- South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
- Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
- Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?
- "Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
- Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof
Thursday, May 26, 2016
Making my way to DC for U.S. Chamber/NACDL Symposium: "The Enforcement Maze: Over-Criminalizing American Enterprise"
Highlighting the many ironies of modern travel, this morning I got to the airport extra early for a flight to DCA because of all the talk about TSA under-staffing and long security lines. But after breezing through securing in a matter of minutes, I am now stuck in the CMH terminal delayed hours awaiting a working plane to ferry me to our nation's capital to participate in a symposium on overcriminalization. I am bummed about the delay because I was looking forward to hearing the morning panels at this inside-the-Beltway event to which I am heading: The U.S. Chamber Institute for Legal Reform (ILR) and the National Association of Criminal Defense Lawyers (NACDL) Law & Policy Symposium on "The Enforcement Maze: Over-Criminalizing American Enterprise."
Undaunted, I remain upbeat because I am cautiously optimistic I will still make it to DC in time to hear fellow lawprof Lucian Dervan present a "TED Talk-inspired" presentation on "The Symbiotic Relationship Between Overcriminalization and Plea Bargaining." I am also looking forward to an afternoon of highlights at this event that include a luncheon keynote by David Ogden, former Deputy Attorney General of the United States, as well as closing remarks by Senator Orrin Hatch.
For those revved up by these topics, here is the description of my afternoon panel:
The Public Policy Consequences and the Road to Recovery: This panel will address the erosion of respect for criminal law, costs incurred by taxpayers, over-incarceration, and the squashing of business ingenuity and growth, and will explore solutions to these problems.
I expect to talk briefly about the importance of mens rea considerations at the sentencing of persons convicted of business-related crimes (and I may do a future post or two on this topic). But, in light of the panel's description, I would welcome reader comments on what I should make sure gets covered my someone on my panel.
Wednesday, May 25, 2016
Federal judge justifies below-guideline sentence of probation for drug importer because of "statutory and regulatory collateral consequences she will face as a convicted felon"
As reported in this new New York Times piece, a "federal judge in Brooklyn, in an extraordinary opinion that calls for courts to pay closer attention to the impact of felony convictions on people’s lives, sentenced a young woman in a drug case to probation rather than prison, saying on Wednesday that the collateral consequences she would face as a felon were punishment enough." Here is more about the opinon:
The judge, Frederic Block of Federal District Court, said that the broad range of such collateral consequences served no “useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.” The judge noted that there were nearly 50,000 federal and state statutes and regulations that impose penalties, disabilities or disadvantages on convicted felons.
Such consequences — the denial of government benefits, ineligibility for public housing, suspension of student loans, revocation or suspension of driver’s licenses — can have devastating effects, he wrote, adding that they may also be “particularly disruptive to an ex-convict’s efforts at rehabilitation and reintegration into society.”
The issue of collateral consequences and sentencing has been considered by other courts, but Judge Block’s 42-page opinion appears to be one of the most detailed examinations yet, combined with his call for reform. He noted that the inability to obtain housing and employment stemming from a conviction often results in “further disastrous consequences, such as losing child custody or going homeless,” and leads to many ex-convicts “becoming recidivists and restarting the criminal cycle.”
The judge’s ruling does not create a binding legal precedent for other courts, but is likely to further contribute to the national debate about the criminal justice system. Gabriel J. Chin, a professor at the University of California Davis School of Law, called the opinion “groundbreaking.”
“This is by some distance the most careful and thorough judicial examination” of collateral consequences in sentencing, said Professor Chin, who has written extensively on the subject and whose work the judge cited in the opinion. “It’s going to generate debate on a critical issue in the criminal justice system — the ability of people convicted of crimes to get on with their lives,” he said.
The sentencing opinion was issued in the case of Chevelle Nesbeth, who was arrested last year at Kennedy International Airport after a search of her luggage turned up 600 grams of cocaine, court records show. A jury, rejecting her claim that she had been given the suitcases by friends and was unaware that they contained drugs, convicted her of importation of cocaine and possession of cocaine with intent to distribute, the judge wrote. She faced a sentence within 33 to 41 months under the federal advisory guidelines.
But in a hearing on Tuesday, Judge Block sentenced Ms. Nesbeth to one year of probation, six months of home confinement and 100 hours of community service.
Judge Block's full 42-page opinion in US v. Nesbeth, No. 15-cr-18 (E.D.N.Y May 24, 2016), can be downloaded below. Here are a few passages from its introduction:
Chevelle Nesbeth was convicted by a jury of importation of cocaine and possession of cocaine with intent to distribute. Her advisory guidelines sentencing range was 33-41 months. Nonetheless, I rendered a non-incarceratory sentence today in part because of a number of statutory and regulatory collateral consequences she will face as a convicted felon. I have incorporated those consequences in the balancing of the 18 U.S.C. § 3553(a) factors in imposing a one-year probationary sentence.
I am writing this opinion because from my research and ex:erience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers - both prosecutors and defense counsel - as well as by the Probation Department in rendering its pre-sentence reports, to the collateral consequences facing a convicted defendant.' And I believe that judges should consider such consequences in rendering a lawful sentence.
There is a broad range of collateral consequences that serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences. Many - under both federal and state law - attach automatically...
Because of the significance which I attach to the need of the criminal justice system to embrace collateral consequences as a sentencing issue, I write extensively, addressing in tum: (I) The History of Collateral Consequences; (II) The Depth and Breadth of Post-Conviction Statutory and Regulatory Collateral Consequences; (III) The Governing Caselaw; (IV) Ms. Nesbeth's Collateral Consequences and the Balancing of all§ 3553(a) Factors; (V) The Shaping of the Sentence; and (VI) The Responsibilities of Counsel and the Probation Department.
Monday, May 23, 2016
"An Experimental Study of the Effectiveness of Certificates of Recovery as Collateral Consequence Relief Mechanisms"
The title of this post is the title of this notable new paper now available via SSRN authored by Peter Leasure and Tia Stevens Andersen. Here is the abstract:
Securing stable, quality employment is one of the most robust predictors of desistance from offending. Yet, obtaining gainful employment is difficult for ex-offenders due to the stigma of a criminal record. In recognition of employment-related barriers to re-entry, some state legislatures have created certificates of recovery/relief, which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure employment decisions about certificate-holders are made on a case-by-case basis.
The present study presents the results of the first empirical test of the effectiveness of such certificates. Using an experimental correspondence design, fictitious applicants applied to entry-level jobs advertised in the Columbus metropolitan area using fabricated resumes with identical names, educational backgrounds, employment experience, and skills. Because the only differences between the resumes were the type of criminal record and the presence of a Certificate of Qualification for Employment (CQE), the results isolate the specific impacts of criminal records and certificates on employment opportunities. Results indicate that, for job seekers with a one-year-old felony drug conviction, having a certificate of recovery increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate-holders and their counterparts with clean criminal backgrounds were equally likely to receive an interview invitation or job offer. These promising preliminary results suggest certificates of recovery/relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment.
ProPublica takes deep dive to idenitfy statistical biases in risk assessment software
The fine folks at ProPublica have this new important piece of investigative journalism about risk assessment tools. The piece is headlined "Machine Bias: There’s software used across the country to predict future criminals. And it’s biased against blacks." Here is an extended excerpt, with links from the original:
[R]isk assessments are increasingly common in courtrooms across the nation. They are used to inform decisions about who can be set free at every stage of the criminal justice system, from assigning bond amounts ... to even more fundamental decisions about defendants’ freedom. In Arizona, Colorado, Delaware, Kentucky, Louisiana, Oklahoma, Virginia, Washington and Wisconsin, the results of such assessments are given to judges during criminal sentencing.
Rating a defendant’s risk of future crime is often done in conjunction with an evaluation of a defendant’s rehabilitation needs. The Justice Department’s National Institute of Corrections now encourages the use of such combined assessments at every stage of the criminal justice process. And a landmark sentencing reform bill currently pending in Congress would mandate the use of such assessments in federal prisons.
In 2014, then U.S. Attorney General Eric Holder warned that the risk scores might be injecting bias into the courts. He called for the U.S. Sentencing Commission to study their use. “Although these measures were crafted with the best of intentions, I am concerned that they inadvertently undermine our efforts to ensure individualized and equal justice,” he said, adding, “they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”
The sentencing commission did not, however, launch a study of risk scores. So ProPublica did, as part of a larger examination of the powerful, largely hidden effect of algorithms in American life.
We obtained the risk scores assigned to more than 7,000 people arrested in Broward County, Florida, in 2013 and 2014 and checked to see how many were charged with new crimes over the next two years, the same benchmark used by the creators of the algorithm. The score proved remarkably unreliable in forecasting violent crime: Only 20 percent of the people predicted to commit violent crimes actually went on to do so.
When a full range of crimes were taken into account — including misdemeanors such as driving with an expired license — the algorithm was somewhat more accurate than a coin flip. Of those deemed likely to re-offend, 61 percent were arrested for any subsequent crimes within two years.
We also turned up significant racial disparities, just as Holder feared. In forecasting who would re-offend, the algorithm made mistakes with black and white defendants at roughly the same rate but in very different ways.
- The formula was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.
- White defendants were mislabeled as low risk more often than black defendants.
Could this disparity be explained by defendants’ prior crimes or the type of crimes they were arrested for? No. We ran a statistical test that isolated the effect of race from criminal history and recidivism, as well as from defendants’ age and gender. Black defendants were still 77 percent more likely to be pegged as at higher risk of committing a future violent crime and 45 percent more likely to be predicted to commit a future crime of any kind. (Read our analysis.)
The algorithm used to create the Florida risk scores is a product of a for-profit company, Northpointe. The company disputes our analysis. In a letter, it criticized ProPublica’s methodology and defended the accuracy of its test: “Northpointe does not agree that the results of your analysis, or the claims being made based upon that analysis, are correct or that they accurately reflect the outcomes from the application of the model.”
Northpointe’s software is among the most widely used assessment tools in the country. The company does not publicly disclose the calculations used to arrive at defendants’ risk scores, so it is not possible for either defendants or the public to see what might be driving the disparity. (On Sunday, Northpointe gave ProPublica the basics of its future-crime formula — which includes factors such as education levels, and whether a defendant has a job. It did not share the specific calculations, which it said are proprietary.)
May 23, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)
Saturday, May 21, 2016
"Trespass, Not Fraud: The Need for New Sentencing Guidelines in CFAA Cases"
The title of this post is the title of this new paper authored by Orin Kerr now available via SSRN. Here is the abstract:
This article argues that the existing regime for sentencing violations of the Computer Fraud and Abuse Act (CFAA) is based on a conceptual error that often leads to improper sentencing recommendations. The Federal Sentencing Guidelines treat CFAA violations as economic crimes. Most CFAA crimes are rooted in trespass, however, not economic loss such as fraud crimes. The difference is significant. The economic crimes framework now in place leads guidelines calculations to focus too much on economic loss and not enough on the circumstances of the crime. The article concludes by sketching out a new and better way to calculate sentencing recommendations in CFAA cases.
Thursday, May 19, 2016
"Criminal Justice: The Real Reasons for Reform"
The title of this post is the headline of this effective new National Review commentary authored by Vikrant Reddy, a senior research fellow at the Charles Koch Institute. The piece's subheadline highlights its themes: "There’s no reason to exaggerate the need for it; the true state of affairs is bad enough." And here is how the piece starts and ends:
For all public-policy ideas, there are good arguments and there are bad arguments. The bad arguments sometimes carry flash and sizzle, but they should be resisted. Criminal-justice reform — an issue many prominent conservatives have begun to champion — is particularly rife with bad arguments, but that is no reason to ignore the good ones. In a recent piece in RealClearPolicy, the conservative writer Sean Kennedy expertly filleted some of the worst arguments made by overzealous criminal-justice reformers on both the left and the right. But his takedown was not an argument against thoughtful reform efforts that have improved public safety, saved taxpayer dollars, and advanced individual dignity....
The broadly accepted view among criminologists is that incarceration does bring down crime rates, but it is a tool with diminishing marginal returns. At a certain point, if the goal is to decrease crime, each additional tax dollar is better spent on law enforcement and prevention. Indeed, there is even a point at which incarceration becomes criminogenic, causing more crime than it stops. This happens because, as noted above, some petty criminals spend lengthy stints in prison and emerge with limited reentry options and having learned more bad habits.
The upshot of all of this is simple. First, whether or not America has the world’s highest incarceration rate, it certainly has a rate vastly higher than that of any comparable Western democracy. Second, a slight majority of the prison population consists of violent offenders, but this is hardly an argument for ignoring criminal-justice reforms that would (1) reduce the number of non-violent offenders behind bars and (2) better direct resources at preventing violent crime. Finally, reformers should not forget that our high rates of incarceration, in certain ways, make society less safe, and public-safety considerations must be central to any discussion of criminal-justice reform.
Those are the good arguments in support of criminal-justice reform — and they remain good arguments even when some are making weak arguments.
Of course, not everyone who gets published in the National Review is advocating for sentencing reforms, as evidence by these other two notable recent pieces to be found there:
"Why Trump Should Oppose ‘Criminal-Justice Reform’" by Jeffrey Anderson
"Criminals are unicorns: And that’s why it is so difficult to stop them" by Kevin Williamson