Thursday, July 03, 2014

Fascinating suggestion of "Mitt Romney for drug czar"

The always brilliant and provocative lawprof Mark Osler has this brilliant and provocative new commentary in the Detroit News headlined "Mitt Romney for drug czar." Here is how it starts:

In a series of public appearances, Detroit native Mitt Romney has planted the idea that he might run for president again in 2016. He should resist the idea; that day has passed.

Instead, Romney should apply his experience and passion to public service in a different way: The Mitt Romney who founded Bain Capital and saved the Utah Winter Olympics should be Drug Czar, and use his financial acumen to destroy the narcotics trade without mass incarceration.

In the run-up to the 2012 presidential election, Mitt Romney was celebrated (by Republicans) and eviscerated (by Democrats) for his vocation: building up and tearing down businesses. Regardless of how one views the social utility of this enterprise, no one can dispute that Romney is a smart, passionate, well-educated man who loves public service and was very good at what he did while working for Bain Capital.

Romney’s availability matches up with a special moment for narcotics policy. There is a broad right-left consensus that the stale tactics of the war on drugs failed miserably. It wasted billions of dollars in taxpayer money while failing to limit drug use. Meanwhile, millions of Americans went to prison, and a disproportionate number of them were black thanks to harsh new laws focused on crack cocaine. There was something to offend everyone.

I like this idea sooooo much, I really wonder if it could possibly get any legs inside the Beltway. On all modern drug crime and punishment issues — ranging from marijuana reform in the states to the surge of addiction to opiods and heroin to the reduction of federal drug sentences — the country really needs to widely respected "numbers guy" who could bring a clear-headed business perspective to analyzing the pros and cons of various suggested policy initiatives.  I would trust Mitt Romney to be that guy as much, if not more, than just about anyone else President Obama might place in this role.  

July 3, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Wednesday, July 02, 2014

An (overly?) optimistic account of how GPS technology could "solve" mass incarceration

This recent article from Vox, headlined "Prisons are terrible, and there’s finally a way to get rid of them," praises and promotes efforts to use GPS tracking to reduce US reliance on incarceration. The article strikes me as a bit too optimistic, but it does assembled some research that may justify such optimism.  Here is a snippet from the start of the article that highlights its themes:

So why do prisons exist? In theory, because we need them. They keep bad guys off the street. They give people a reason to not commit crimes. They provide a place where violent or otherwise threatening people can be rehabilitated.

But prisons aren't the only way to accomplish those goals. Technological advancements are, some observers say, making it possible to replace the current system of large-scale imprisonment, in large part, with alternatives that are not as expensive, inhumane, or socially destructive, and which at the same time do a better job of controlling crime. The most promising of these alternatives fits on an ankle.

While the idea of house arrest has been around for millennia, it has always suffered from one key defect as a crime control tool: you can escape. Sure, you could place guards on the homes where prisoners are staying, but it's much easier to secure a prison with a large guard staff than it is a thousand different houses with a guard or two apiece.

Today, we have something better than guards: satellites. The advent of GPS location tracking means it's now possible for authorities to be alerted the second a confinee leaves their home. That not just enables swift response in the event of escape; it deters escape by making clear to detainees that they won't get away with it.

July 2, 2014 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Technocorrections | Permalink | Comments (7) | TrackBack

"Into the Breach: The Case for Robust Noncapital Proportionality Review Under State Constitutions"

The title of this post is the title of this notable piece authored by Samuel Weiss now available via SSRN. Here is the abstract:

The Eighth Amendment forbids cruel and unusual punishments.  The Supreme Court has found in the Amendment a guarantee that punishment be proportionate to the crime. Although the requirement technically applies equally to all punishment, in practice the Court has used the guarantee strictly to regulate capital punishment — a practice it recently extended to life without parole sentences for juveniles — but has abdicated almost entirely on noncapital sentences.

States have authority to regulate excessive punishment under their state constitutions, but most have chosen to interpret their state proportionality clauses in lockstep with the Eighth Amendment.  Even the states that have found greater protection in their constitutions have done so cautiously, striking down only the rare sentence so absurd that the legislature could not possibly have intended the result.

This Note suggests that states should aggressively police the proportionality of noncapital sentences under their state constitutions.  Part I discusses extant noncapital proportionality, both the United States Supreme Court’s Eighth Amendment doctrine and states’ responses to either heighten standards of review or to march in lockstep with the Court.  Part II discusses the primary basis for state courts’ failure to regulate proportionality — that regulating sentences would be intervening into legislative judgment of retributive fit — and its deep flaws.  State courts ignore that criminal codes bear little relation to actual crime and punishment — criminal liability is so broad and sentences so punitive that legislatures have essentially delegated decisions on criminality and sentence length to prosecutors.  Prosecutors, in turn, routinely deliver disproportionate sentences because prosecutors are local political actors who push the actual costs of incarceration onto state governments; because the public pushes for ever-harsher sentences; and because prosecutors deliver trial penalties to defendants who refuse to plead guilty.  Much of the Supreme Court’s cautiousness comes from its broader fear about intervention in state criminal justice systems; this fear is legitimate but should carry no weight with state courts, which are part of state criminal justice systems.  Part III addresses the remaining arguments against aggressive state proportionality review — that states should interpret their parallel provisions in the same manner as the federal provision and that judges are institutionally incompetent to make decisions about comparative blameworthiness.  The Note concludes that states should use their constitutions to pursue aggressive noncapital proportionality review.

July 2, 2014 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, June 27, 2014

"Managing Prisons by the Numbers: Using the Good-Time Laws and Risk-Needs Assessments to Manage the Federal Prison Population"

The title of this post is the title of this timely and valuable new article available via SSRN authored by Paul J. Larkin Jr. of The Heritage Foundation. Here is the abstract:

The criminal justice system directs actors to make predictions about an offender’s likely recidivism. Today, many criminal justice systems use some form of a risk-needs assessment as a classification tool at various stages of the criminal process, especially when deciding where a particular offender will be housed or whether he should be granted credit toward an early release.

Research has shown that risk-needs assessments have valuable predictive power and therefore can be worthwhile tools for making the myriad predictions needed in the federal criminal justice system. Yet, risk-needs assessments also are controversial. Some commentators have criticized them on the ground that they offend equal protection principles.

The Public Safety Enhancement Act (PSEA) and the Recidivism Reduction and Public Safety Act (RRPSA) attempt to navigate the path toward criminal justice reform by directing the Attorney General to study the value and legality of risk-needs assessments. Legislators who choose to pursue correctional reform by revising the back end of the process would find that the PSEA and the RRPSA are valuable efforts to improve the system.

I have been hopeful (but not confident) that the distinct efforts at federal sentencing and corrections reform found in the PSEA and the RRPSA would not get lost in the discussion and debate over the Smarter Sentencing Act. But I keep fearing that controversy over the type of front-end reform involved in the SSA has tended to eclipse the (arguably more pressing and consequential) back-end reforms developed in the PSEA and the RRPSA. I hope this piece help folks continue to appreciate the need and value of both types of reform in the federal system.

June 27, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

New York Times op-ed laments Kettle Falls 5 federal marijuana prosecution

Kettle_falls_signI am pleased to see the op-ed pages of the New York Times giving attention to a remarkable federal drug prosecution mving forward in Washington state.  This foreceful commentary by Timothy Egan, headlined "Lock ’Em Up Nation: Mandatory Sentencing for Medical Marijuana," includes these passages:

[In] ruggedly beautiful, financially struggling eastern third of Washington State ... 70-year-old Larry Harvey, his wife, two family members and a friend are facing mandatory 10-year prison terms for growing medical marijuana — openly and, they thought, legally — on their farm near the little town of Kettle Falls.

To get a sense of the tragic absurdity of this federal prosecution, reaching all the way to the desk of Attorney General Eric H. Holder Jr., consider what will happen next month. Pot stores will open in Washington, selling legal marijuana for the recreational user — per a vote of the people. A few weeks later, the Feds will try to put away the so-called Kettle Falls Five for growing weed on their land to ease their medical maladies....

Harvey is a former long-haul truck driver with a bad knee, spasms of gout and high blood pressure. He says he has no criminal record, and spends much of his time in a wheelchair. His wife, Rhonda Firestack-Harvey, is a retired hairdresser with arthritis and osteoporosis. Mr. Harvey says he takes his wife’s home-baked marijuana confections when the pain in his knee starts to flare. The Harveys thought they were in the clear, growing 68 marijuana plants on their acreage in northeast Washington, one of 22 states allowing legal medical marijuana. (Federal authorities say they are several plants over the limit.)

Their pot garden was a co-op among the four family members and one friend; the marijuana was not for sale or distribution, Mr. Harvey says. “I think these patients were legitimate,” Dr. Greg Carter, who reviewed medical records after the arrest, told The Spokesman-Review of Spokane. “They are pretty normal people. We’re not talking about thugs.”

But the authorities, using all the military tools at their disposal in the exhausted drug war, treated them as big-time narco threats. First, a helicopter spotted the garden from the air. Brilliant, except Harvey himself had painted a huge medical marijuana sign on a plywood board so that his garden, in fact, could be identified as a medical pot plot from the air.

This was followed by two raids. One from eight agents in Kevlar vests. The other from Drug Enforcement Agency officers. They searched the house, confiscating guns, and a little cash in a drawer. The guns are no surprise: Finding someone who does not own a firearm in the Selkirk Mountain country is like finding a Seattleite who doesn’t recycle. Still, the guns were enough to add additional federal charges to an indictment that the family was growing more than the legal limit of plants.

Now, let’s step back. The Harveys live in the congressional district of Representative Cathy McMorris Rodgers, who is part of the House Republican leadership. She loves freedom. You know she loves freedom because she always says so, most recently in a press release touting her efforts to take away people’s health care coverage. “Americans must be protected from out of control government,” she stated.

Well, maybe. Unless that government is trying to take away the freedom of a retired couple growing pot to ease their bodily pains. That freedom is not so good. Astonishingly, in our current toxic political atmosphere, Republicans and Democrats joined together last month to vote, by 219 to 189, to block spending for federal prosecution of medical marijuana in states that allow it. Yaayyy, for freedom. There was one dissent from Washington State’s delegation. Yes, Cathy McMorris Rodgers, standing firm for an out of control government instead of defending one of her freedom-loving constituents....

Trial is set for July 28, and the Harveys can’t use legal medical marijuana as a defense, a judge has ruled. All the government has to prove is that the Harvey family was growing marijuana — a federal crime. If they go to prison for a decade, as the mindless statutes that grew out of the crack-cocaine scare stipulate, they would become part of a federal system where fully half of all inmates are behind bars for drug offenses. And one in four of those crimes involves marijuana.

So remember the Kettle Falls Five when all the legal pot stores and their already legal growing facilities open for business in Washington State next month. There will be silly features about cookies and candy bars laced with pot, and discussions about etiquette, dos and don’ts. The press will cite polls showing that a majority of Americans favor legalizing marijuana, and more than 80 percent feel that way about medical cannabis. But in the eyes of the federal government, these state laws are meaningless.

If Larry Harvey, at the age of 70, with his gout and high blood pressure and bum knee, gets the mandatory 10-year term, he’s likely to die in prison, certainly not the last casualty of the assault on our citizens known as the War on Drugs. For him, freedom is just another word his congresswoman likes to throw around on the Fourth of July.

As I have said before and will be saying again and again as more and more states legalize medical marijuana, there are a number of viable constitutional arguments based in the Eighth Amendment that I think could and should limit the federal prosecution and extreme federal sentencing of defendants like the Kettle Falls 5. I hope these defendants press these arguments aggressively and persistently in the months ahead.

In addition, I am pleased that this op-ed calls out Cathy McMorris Rodgers for failing to be eager to support and defend freedom and family values in this context.  Rep. Rodgers says on her official website here that she has a "passion and determination to protect America’s values -- including family, faith, freedom, opportunity, and responsibility."   I hope she gets often pressed on how these values justify the federal government seeking to imprison the Kettle Falls 5 for many years.

Prior related post:

June 27, 2014 in Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, June 26, 2014

"What Is Criminal Restitution?"

The title of this post is the title of this notable new article by Cortney Lollar now available via SSRN. Here is the abstract:

A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore no longer serves its traditional purpose of disgorging a defendant’s ill-gotten gains. Instead, restitution has become a mechanism of additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections normally attaching to criminal proceedings.

This Article deploys a novel definition of punishment to situate restitution alongside other forms of punishment. Like all forms of punishment, restitution is imposed subsequent to a criminal allegation, pursuant to a statute motivated by morally condemnatory intent, and resulting in a substantial deprivation or obligation. Because restitution has become a form of punishment, this Article argues that judges should recognize criminal restitution for what it is — victim compensation imposed at the state’s request as condemnation for a moral wrong — and extend to defendants in restitution proceedings all the constitutional protections they enjoyed in earlier criminal proceedings. This means submitting restitution to a jury for determination pursuant to the Sixth Amendment, and subjecting it to the excessive-fines analysis of the Eighth Amendment.

June 26, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, June 24, 2014

Others starting to appreciate "Rand Paul, Criminal Justice Hero"

I am very pleased to see this new Slate commentary by Emily Bazelon headlined "Rand Paul, Criminal Justice Hero: The senator from Kentucky wants to give ex-felons the vote even though they won’t vote Republican." The piece not only highlights the credit Senator Paul should be given for his principled approach to criminal justice reform, it also demonstrates why right now he is arguably the most important active criminal justice reformer in the nation.  Here are excerpts:

When libertarian Republicans go on about the “tyranny” of the federal government, as Kentucky Sen. Rand Paul is prone to do, I tune out. But not today. Paul has been talking for a while about how his conception of tyranny extends to long, draconian prison sentences for mostly poor and black offenders. Now he is introducing a bill that would restore voting rights to nonviolent ex-felons in federal elections. This bill is not about to become law any time soon. But give Paul credit for standing on principle even though he and his party would hardly benefit.

If Congress really re-enfranchised ex-cons across the land, it would help Democrats. It would probably be enough to swing a close Senate race in some states—or to push Florida into the D column in a presidential election. In 2010, according to this policy brief by the Sentencing Project, 5.85 million people across the country couldn’t vote because they were either in prison or had a felony record (which in 12 states also disqualifies you at the polls)....

To state the obvious, if these ex-cons voted, they would break for Democrats. “African-American voters are wildly overrepresented in criminal justice populations. African-American voters also historically favor Democratic candidates,” says Christopher Uggen, a sociologist at the University of Minnesota. Uggen and Jeff Manza co-wrote an article for the American Sociological Review in 2002 in which they estimated turnout for disenfranchised ex-cons....

o why is Paul pushing for a bill that could actively hurt his party? “Even if Republicans don’t get more votes, we feel like we’ve done the right thing,” Paul told Politico. This sounds like Paul’s (qualified) support for immigration reform: He’s behind it even though in the short-term, it’s probably a loser for Republicans. I don’t mean to sound naive here about Paul’s motives. He sometimes cultivates renegade Tea Party independence, and I realize that he is also appealing to swing voters: moderates who like it when conservative politicians sound concerned about poor people and minorities. And maybe that’s good for the image of the Republican party overall: Rand Paul, softening agent. Uggen says he did a poll a few years ago and found resounding majority support for letting ex-felons vote. But how many of those people care enough about the issue to vote for Paul based on it? That number has to be tiny. And while it’s possible to argue that Republicans have to move toward immigration reform for their long-term survival, given the rising Latino population and the shrinking white one, felon disenfranchisement just doesn’t have the same grip....

It’s worth pointing out, though, that Paul is the sole sponsor for his bill. In Florida in 2011, Republican Gov. Rick Scott went the other way and tightened voting restrictions on former felons, in spite of criticism about the number of black people he was barring from the polls. Paul has more company from fellow libertarians Ted Cruz and Mike Lee in pushing for sentencing reform. This is the larger fight that felon disenfranchisement is a part of: addressing mass incarceration by lowering or eliminating mandatory minimum sentences, especially for nonviolent drug offenders. “I’m talking about making the criminal justice system fair and giving people a second chance if they served their time,” Paul said in February at a gala for the conservative American Principles Project. Give him, and Cruz and Lee, credit for being part of this push. Sentencing reform has justice on its side and budgetary common sense, too, given the huge sums it takes to keep prisoners locked up for years. Too bad other Republicans won’t support that cause, or go for giving former felons the vote either.

June 24, 2014 in Collateral consequences, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

"Forget Sentencing Equality: Moving from the 'Cracked' Cocaine Debate Toward Particular Purpose Sentencing"

The title of this post is the title of this interesting paper authored by Jelani Jefferson Exum now available via SSRN. Here is the abstract:

While a racial equality-themed discourse has traditionally fueled the crack-versus-powder cocaine sentencing debate, this Article asserts that seeking equality in sentencing outcomes is the wrong goal.  This Article argues that reformers seeking racial equality in sentencing are misguided in using the cocaine sentencing standards as a benchmark of fairness, because the current cocaine sentencing standards do not effectively serve the purposes of punishment.

Rather than focusing on equality, this Article advocates implementing Particular Purpose Sentencing, which involves developing a framework for drug offenses to be analyzed individually and matched with punishments that purposefully address the concerns associated with the particular offense.  Particular Purpose Sentencing also requires that, once sentences are matched to a specific purpose, the outcomes of those sentences be studied to ensure that they are fulfilling their particular sentencing purpose.

This Article analyzes the legislative and judicial limits of basing sentencing reform on racial equality goals, and explores how implementing Particular Purpose Sentencing has the potential to result in more effective and racially equal consequences.  Though this Article introduces Particular Purpose Sentencing using the drug sentencing context, this new sentencing theory can be applied to achieve fairer, more successful sentencing for all offenses.

June 24, 2014 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Sunday, June 22, 2014

New York Times editorial laments stalled federal sentencing reform

Today's New York Times has this lengthy editorial, headlined "Sentencing Reform Runs Aground," expressing justified concerning that bipartisan support for federal sentencing reform has not yet been enough to secure legislative action. Here are excerpts:

Criminal justice reform is one of the rare issues on which there has been bipartisan support in Congress and significant progress toward a legislative solution. Until recently, anyway.

Two bills, each with Republican and Democratic sponsors, were expected to come up for a vote by this summer — one that would reduce lengthy sentences for many low-level drug offenders and another that would give low-risk inmates credit toward early release if they participate in job-training and drug treatment programs. But progress on both bills has stalled, and congressional leaders who were once confident about their chances this year are now looking toward 2015, at the earliest.

Meanwhile, tens of thousands of federal inmates — many of whom have already served years of unjustly long drug sentences — continue to sit in overstuffed prisons, wasting both their lives and taxpayer dollars at no demonstrable benefit to public safety....

So why the delay? One major factor has been resistance from members of the old guard, who refuse to let go of their tough-on-crime mind-set. In May, three senior Republican senators — Charles Grassley of Iowa, John Cornyn of Texas and Jeff Sessions of Alabama — came out against the sentencing reductions, arguing that mandatory minimums are only used for the highest-level drug traffickers. This assertion is contradicted by data from the United States Sentencing Commission, which found that 40 percent of federal drug defendants were couriers or low-level dealers.

Another factor was the Obama administration’s April announcement that it would consider clemency for hundreds, if not thousands, of inmates currently serving time under older, harsher drug laws. Republicans complained that this — along with other executive actions on criminal justice by Mr. Obama and Attorney General Eric Holder Jr. — took the wind out of reform’s sails.

But with the exception of some old-line prosecutors and resistant lawmakers, everyone still agrees on the need for extensive reform. The other branches of the federal government have begun to do their part: Federal judges across the country have spoken out against the mindlessness of mandatory minimums. The sentencing commission voted in April to reduce many drug sentencing guidelines. And the Justice Department under Mr. Holder has taken multiple steps to combat the harsh and often racially discriminatory effects of those laws.

The public is on board too. According to a recent Pew survey, 67 percent say the government should focus more on treating drug users than on prosecuting them.

Some members of Congress get it. On the right, the charge for reform has been led by Rand Paul of Kentucky, Mike Lee of Utah, Ted Cruz of Texas and Jeff Flake of Arizona. Yet the prospect of reform has become more precarious, even as the need for it has become more urgent.

Judicial pronouncements and executive orders only go so far. It is long past time for Congress to do its job and change these outdated, ineffective and unjust laws.

June 22, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, June 20, 2014

"Ignoring Issues of Morality or Convicting the Innocent, Is Capital Punishment a Good Idea or a Bad Idea?"

The question in the title of this post is the title of this intriguing little essay by Ron Allen now available via SSRN. Here is the abstract:

The conventional debate over the risk of executing an innocent person is examined and shown to be vacuous.  More innocent lives, by orders of magnitude, are lost through incarceration (the alternative to a death penalty) than could possibly have result from executing innocent defendants.  This is an instance of the deadly dilemma of governing, which inevitably involves tradeoffs of social goods and costs, often of precisely the same variable.

June 20, 2014 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack

"A Suggested Minor Refinement of Miller v. Alabama"

The title of this post is the title of this new Comment by Devina Douglas now available via SSRN. Here is part of the abstract:

While some heralded the recent United States Supreme Court’s Miller v. Alabama decision — forbidding mandatory life without parole (LWOP) sentences for juveniles — as a step in the right direction for protecting the interests of juveniles within the adult criminal justice system, the decision is also a step backwards for the ability states to sentence their criminals as they sees fit....  This Comment argues the Court spoke too broadly applying its rule to all minors.

This essay will first summarize the Supreme Court’s previous sentencing precedent, the cases that paved the way for the Miller decision — establishing that “children are different,” — and then the Miller decision.  Next, it will highlight the troubles lower courts have faced in trying to implement the decision, the flaws in, and alternative interpretations of, the science relied upon, and then turn to the question of whether juveniles over the age of sixteen have reached sufficient maturity as to allow the system to hold them as accountable as adults for homicide crimes.  In response to the likelihood that those sixteen and over are sufficiently mature, this Comment will propose a way to preserve deference to the various state legislatures’ sentencing decisions while addressing increasing concern that juveniles should be treated differently.  The Miller pre-sentencing evaluation factors should only apply categorically to those under sixteen, and those sixteen and seventeen in cases where the juvenile offender is quite young or possesses what the Court calls twice-diminished culpability: where the system convicted the offender under an aiding and abetting or accomplice theory, or felony murder.

June 20, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, June 18, 2014

"Sentencing Terrorist Crimes"

The title of this post is the title of this notable new article by Wadie E. Said now available via SSRN. Here is the abstract:

The legal framework behind the sentencing of individuals convicted of committing terrorist crimes has received little scholarly attention, even with the proliferation of such prosecutions in the eleven years following the attacks of September 11, 2001. This lack of attention is particularly striking in light of the robust and multifaceted scholarship that deals with the challenges inherent in criminal sentencing more generally, driven in no small part by the comparatively large number of sentencing decisions issued by the United States Supreme Court over the past thirteen years. Reduced to its essence, the Supreme Court’s sentencing jurisprudence requires district courts to make no factual findings that raise a criminal penalty over the statutory maximum, other than those found by a jury or admitted by the defendant in a guilty plea. Within those parameters, however, the Court has made clear that such sentences are entitled to a strong degree of deference by courts of review.

Historically, individuals convicted of committing crimes involving politically motivated violence/terrorism were sentenced under ordinary criminal statutes, as theirs were basically crimes of violence. Even when the law shifted to begin to recognize certain crimes as terrorist in nature — airplane hijacking being the prime example — sentencing remained relatively uncontroversial from a legal perspective, since the underlying conduct being punished was violent at its core. In the mid-1990s, the development and passage of a special sentencing enhancement, U.S. Sentencing Guidelines Manual section 3A1.4, offered the opportunity for district courts to significantly increase the penalty for certain activity that fell into a defined category of what was termed “a federal crime of terrorism.” Coupled with the post-9/11 trend of the government using a relatively new offense, 18 U.S.C. § 2339B, the ban on providing material support to designated foreign terrorist organizations, as its main legal tool in the war on terrorism, sentences for such crimes increased significantly, even in situations where there was no link to an act of violence. The application of section 3A1.4 invites a district court to find certain facts, under the preponderance of the evidence standard, which bring the conduct into the category of a federal crime of terrorism, thereby triggering greatly enhanced punishment. A review of the reported decisions involving section 3A1.4 reveals, however, that only in rare cases do courts find the enhancement to be improperly applied. This Article argues that, as currently understood, the application of section 3A1.4 raises serious concerns about its fidelity to the Supreme Court’s Sixth Amendment jurisprudence.

The existence of a terrorism sentencing enhancement also serves as a kind of statutory basis to embolden courts of appeals to overturn a sentence as too lenient, as has been the case in certain high-profile prosecutions, such as those of Ahmad Abu Ali, Lynne Stewart, and Jose Padilla, among others. As the examples in this Article demonstrate, those courts of review that have engaged in this practice either fail to appreciate or disregard the Supreme Court’s instructions to engage in a highly deferential type of review of a district court sentence. At the heart of these opinions lies a message that terrorism is especially heinous, and those convicted of terrorist crimes are particularly dangerous to the point of being irredeemably incapable of deterrence. While these sentiments may or may not be accurate, the courts of appeals adopting them cite no evidence or studies in support, creating the impression that a court of review may overturn a sentence in a terrorism case simply because it disagrees with the district court, something the Supreme Court has said is improper. In light of this recent development, this Article recommends that some combination of Congress, the United States Sentencing Commission, and the federal courts establish standards to better help a court decide when a heightened punishment might be warranted, free from unsupported assumptions about the nature of terrorism or a particular defendant.

June 18, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Senator Rand Paul continues making the conservative case for criminal justice reform

Regular readers know of my respect and admiration for Senator Rand Paul's modern efforts to explain to lots of folks how is modern conservative values call for modern crimnal justice reforms.  This Huffington Post article, headlined "Rand Paul Tackles Prisons 'Full Of Black And Brown Kids' Amid GOP Reach For Minority Votes," reports on how potent Senator Paul's points have become as he makes the case for criminal justice reforms:

In an ongoing effort to bridge the gap between the GOP and minority voters, Sen. Rand Paul (R-Ky.) deviated from traditional party lines during a speech at the Iowa State Republican Party Convention Saturday, criticizing racist drug policies in the United States and calling for the restoration of voting rights for ex-convicts.

After conceding that his position may not "bring everybody together" and establishing that "drugs are a scourge," Paul continued:

I also think it’s a problem to lock people up for 10 and 15 and 20 years for youthful mistakes. If you look at the War on Drugs, three out of four people in prison are black or brown. White kids are doing it too. In fact, if you look at all the surveys, white kids do it just as much as black and brown kids -- but the prisons are full of black and brown kids because they don’t get a good attorney, they live in poverty, it’s easier to arrest them than to go to the suburbs. There’s a lot of reasons.

The likely 2016 presidential contender, who previously compared federal drug laws to the racist policies of the Jim Crow era, also criticized the GOP for failing to live up to its platform emphasis on family values. “If we’re the party of family values, in 1980 there were 200,000 kids with a dad in prison. There’s now two million,” Paul said, calling on Judeo-Christian conservatives to set policies by the principle of redemption.

Some related posts:

June 18, 2014 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, June 15, 2014

Is God a supporter of marijuana reform?

The question in the title of this post is my (only slightly) tounge-in-cheek response to this Christian Post article headlined "Oklahoma Senator Quotes Genesis 1:29 to Seek Marijuana Legalization." Here are excerpts:

Oklahoma state Sen. Constance Johnson announced the filing of a statewide initiative petition to legalize marijuana, telling supporters that the campaign is based on Genesis 1:29, which suggests that God created "this wonderful, miraculous plant."

"We're putting forth Genesis 1:29 as the basis of this campaign," KFOR.com quoted Sen. Johnson, a Democrat, as telling supporters at the State Capitol on Friday after filing the petition with the office of the Oklahoma secretary of state.

"God created this wonderful, miraculous plant and we know that it has been vilified for the last 100 years, and it's time to change that in Oklahoma," added the senator, who has led efforts, along with attorney David Slane, to legalize pot.  The advocates of marijuana will require 160,000 signatures from registered voters within three months to get the proposal on a statewide ballot....

The petition states that up to one ounce of marijuana should be allowed for recreational use, and three ounces for medical reasons.  The senator is of the opinion that resultant tax benefits would benefit the state.... Johnson also says that decriminalizing possession would ease the burden on prisons. "We're locking up non-violent, marijuana possessing people, giving them felonies and filling up our prisons."

"It's just the right thing to do. It's a plant. It's a God given plant and it could change the world," Fox 25 quoted a petition supporter, Pamela Street, as saying Friday....

Marijuana is different in nature from caffeine, Christian theologian John Piper wrote on the blog of his Desiring God ministry recently. While marijuana "temporarily impairs the reliable processing of surrounding reality," caffeine "ordinarily sharpens that processing," he said.

Cross-posted at Marijuana Law, Policy and Reform

June 15, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Religion | Permalink | Comments (9) | TrackBack

"Lawmakers should be parsimonious — not sanctimonious — on drug sentencing"

The title of this post is the headline of this new commentary at The Hill authored by Jamie Fellner.  Here are excerpts:

Hopes are high that the U.S. Congress will do the right thing this year and reform notoriously harsh federal drug sentencing laws that have crammed U.S. prisons with small-time offenders.

The bipartisan Smarter Sentencing Act, approved by the Senate judiciary committee and now awaiting debate in the full Senate, would reduce federal mandatory minimum sentences for certain drug offenders, increase the number who can avoid them altogether, and permit prisoners serving time under outdated crack-cocaine sentencing laws to seek lower sentences. Passage would begin to reverse a decades-long trend that's seen "too many Americans go to too many prisons for far too long and for no good law enforcement reason," as Attorney General Eric Holder put it earlier this year.

Although legislators may not realize it, reduction of unduly severe sentences for drug offenders will help bring federal sentencing back in line with the long-overlooked principle of "parsimony." In the criminal justice context, parsimony dictates that sentences should be no greater than necessary to serve the legitimate goals of punishment, namely, retribution for past crimes, deterrence of future ones, and rehabilitation of the offender.

Congress once recognized the importance of parsimony. In the Sentencing Reform Act of 1984, it instructed federal judges to impose sentences that were “sufficient, but not greater than necessary” to advance the purposes of punishment. But starting in 1986, against a backdrop of social and economic turmoil, racial tension, and the advent of crack cocaine, Congress enacted mandatory minimum drug sentencing laws with stunning disregard for whether they would yield needlessly harsh sentences -- which they invariably did for the low-level offenders who made up the bulk of those receiving them....

Opponents of the Smarter Sentencing Act, including some current and retired federal prosecutors, insist — without evidence – that the mandatory drug sentences are necessary to protect public safety. They also claim — and here the evidence is on their side — that the threat of high mandatory sentences helps convince defendants to plead guilty and cooperate with the government in exchange for lesser punishments. Because judges have no choice but to impose the mandatory minimums triggered by the charges prosecutors file, prosecutors can make good on the threat of higher sentences for those defendants who insist on going to trial: their sentences are on average three times longer than for those who plead. Not surprisingly, ninety-seven percent of drug defendants choose to plead guilty. Opponents of drug law reform seem to forget — or don't care — that the purposes of punishment do not include bludgeoning defendants into pleading.

Each year, hopes for federal drug sentencing reform are dashed by legislative inertia and a few powerful legislators who cling to outdated “tough on crime” notions. Perhaps this year will be different. A growing number of lawmakers, Republicans and Democrats, realize that lengthy mandatory minimum drug sentences are ineffective, wasteful, and expensive. And though few may use the term parsimony, many have come to understand that unnecessarily harsh sentences make a mockery of justice.

June 15, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Saturday, June 14, 2014

Notable indication that "smart on crime" sentencing reform in West Virginia is paying dividends

StsealAs highlighted by this local article, headlined "Governor: Justice Reinvestment Act drops W.Va. jail population by 5%," it appears that another state is having significant success with data-driven "smart-on-crime" sentencing and corrections reforms. Here are the encouraging details:

Although in effect for slightly more than a year, legislation to reduce prison overcrowding by reducing recidivism and substance abuse is having a positive impact, Gov. Earl Ray Tomblin said during an event Thursday in Washington, D.C.

“Since I signed West Virginia’s Justice Reinvestment Act, we have had a 5 percent reduction in our prison population,” Tomblin said. “In April 2013, we had nearly 7,100 prisoners in our state. Last Thursday, that figure was down to 6,743. We have reduced overcrowding at our regional jail facilities by nearly 50 percent.”

The legislation was enacted in May 2013, after a yearlong study coordinated by the Council of State Governments’ Justice Center, which recommended reducing prison overcrowding with accelerated probation and parole for nonviolent offenders, and better community-based resources for parolees, including substance-abuse treatment programs.

Tomblin told the Washington CSG event that, in April 2013, West Virginia’s corrections system was 1,746 inmates over capacity, a figure that has now dropped to 885. “Today, we have more than 1,000 fewer people in our prisons than what was projected just a few years ago,” Tomblin said. “Without these changes, we expected to have more than 7,800 inmates in West Virginia prisons, compared to today’s total of 6,743.”

Since the passage of the legislation, Tomblin said, the state has continued efforts to reduce re-offense rates with new workforce training programs, assistance in helping parolees find appropriate housing and efforts to ensure access to community-based substance-abuse treatment for those released from prison, funded through Medicaid expansion....

The West Virginia Democrat was joined at the event by Republican Pennsylvania Gov. Tom Corbett, who has overseen similar successes with prison-reform programs in the Keystone State. Corbett noted that, in the 1990s, Pennsylvania was building a new prison nearly every year, as mandatory sentencing laws were causing the state’s inmate population to soar.

Michael Thompson, director of the CSG Justice Center, noted that the national dialogue has changed from a partisan debate over which party could be tougher on crime to a bipartisan effort to be smart on crime, a theme echoed by Tomblin. “I hope other states will consider the justice reinvestment model to take a “smart on crime” approach to prison overcrowding and public safety,” he said.

June 14, 2014 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Ohio legislature wisely considering move to make ignition locks mandatory for DUI offenders

Though I often advocate against lengthy federal mandatory minimum prison terms, I am not categorically opposed to legislative sentencing mandates when there is good reason to believe that the particulars of the mandate will likely save lives and have a limited impact on human liberty and the pursuit of happiness.  Consequently, I was very pleased to see this story in my local paper today, headlined "All drunken drivers may be subject to safeguard," discussing a proposal in Ohio to make ignition locks mandatory for all drunk driving offenders.  Here are the details:

Ohio lawmakers are considering requiring first-time drunken-driving offenders to have an ignition breathalyzer installed on their cars to confirm their sobriety during a six-month penalty period. The law now allows judges to order the ignition interlocks, but the House bill would make their use mandatory. Offenders convicted twice within six years must use the devices.

The bill sponsor, Rep. Terry Johnson, R-McDermott, cites federal figures that ignition-interlock devices reduce DUI re-arrest rates by 67 percent. About 25,000 first-time offenders are convicted each year in Ohio. The devices would replace a system in which first-time DUI offenders are not allowed to drive for 15 days and then can obtain limited driving privileges to travel to work, school and medical appointments.

“There is nothing to ensure compliance and nothing to ensure sobriety unless they happen to get caught again,” Johnson said. “This allows the offender to continue working and to minimize disruption to his life while ensuring public safety to the extent we are reasonably able to do so.”

A change in the bill last week also would require those charged with DUI but convicted of lesser offenses, such as physical control of a vehicle while intoxicated, to install the machines in their cars....

Only about 5,000 Ohioans, including repeat DUI offenders, are required each year to use ignition interlocks, said Doug Scoles, executive director of Ohio MADD. Twenty states now require their use by first-time offenders. “Requiring the use of ignition interlocks for all convicted drunk drivers will help prevent repeat offenses and, in so doing, save lives,” Scoles said.

The State Highway Patrol reports 341 people died in drunken-driving crashes last year. Seventy-seven people have been killed so far this year, 38 fewer that at the same time in 2012.

The bill is dubbed “Annie’s Law” in memory of Chillicothe lawyer Annie Rooney, who was killed last year by a drunken driver now serving eight years in prison. Her family has campaigned for passage of the bill. Lara Baker-Morrish, chief prosecutor for the city of Columbus, calls the legislation “a very good idea.”

“It does curb the behavior we’re trying to get at, and it has been proven to save lives,” she said. Courts would have to find ways to monitor the increase in ignition-interlock reports on drivers and find funding to ensure devices are made available to those who can’t afford installation and monitoring, she said.

I hope my old pal Bill Otis is heartened to hear of my support for a legislative sentencing mandate. I also hope those who advocate forcefully for rigid forms of gun control and for drug control recognize that that drunk drivers often pose a greater threat to innocent lives and the pursuit of happiness than even drunk gun owners or heroin dealers and that clever technologies, rather than crude prohibitions, may be the most politically wise and practically workable means to reduce these threats.

June 14, 2014 in Criminal Sentences Alternatives, Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, June 13, 2014

Will "Dave Brat, accidental tea party leader," be a principled and vocal opponent of the federal drug war?

The question in the title of this post is prompted by this new Politico article headlined "Dave Brat, accidental tea party leader." Here are a few passages from the lengthy piece that make me hopeful that Professor Brat shares the sentiments of many other modern Tea Party leaders that the big federal drug war and big government criminal justice systems:

He may be the new tea party hero, but Brat really isn’t a tea party guy. His writings show that he’s closer to Milton Friedman and Ayn Rand than tea party talking points. Indeed, he fits the ivory tower mold -- the kind of academic who makes small talk with his colleagues at the campus gym by chatting about how to create the perfect ethical system. He savors the role of an anti-politician, but this is not another Joe the Plumber. This is Dave the Professor....

His writings include plenty of tributes to free-market conservatism, and in one paper, he lays out Ayn Rand’s “case for liberty from the ground up.” But there are also some surprising departures — like one paper that suggests that states can prime their economies by investing in education and research. Another endorses the No Child Left Behind law and suggests mandatory teaching seminars so teachers don’t take black students less seriously than white students.

That background paints a different picture of Brat than one might expect from all the tea party support he won. As a candidate, Brat has talked about opposing “amnesty” for illegal immigrants, term limits for members of Congress, gun owners’ rights and returning power to the states through the 10th amendment. Brat’s hardline focus on opposing immigration reform has surprised some of his colleagues, who say he never talked about it that much on campus.

But even the way Brat talks about his solution to illegal immigration is straight from conservative theory: encourage free markets and private property rights around the world.

Students of Milton Friedman know well that he was not only an opponent of pot prohibition, but a vocal advocate of the legalization of all drugs. Here is a link to a video of Friedman discussing his views on this front, which are nicely summarized by this quote: "I'm in favor of legalizing drugs. According to my values, if people want to kill themselves, they have every right to do so. Most of the harm that comes from drugs is because they are illegal."

Long story short: if Dave Brat is as committed to free markets and as principled as the Politico piece suggests he is, he could very quickly become one of the most significant voices in the modern GOP advocating for significant reform of the modern big government federal criminal justice system.

Some older and recent posts on the "new politics" of sentencing reform:

June 13, 2014 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, June 12, 2014

Sixth Circuit declares unreasonable way-above-guideline sentence for repeat bank robber

It remains rare for federal defendants to prevail on reasonableness appeals absent a mis-calculation of the guidelines, and thus today's Sixth Circuit panel decision in US v. Payton, No. 13-1242 (6th Cir. June 12, 2014) (available here) is a noteworthy ruling for this reason alone. But the decision's reference and incorporation of recidivism data and brain science makes the ruling extra interesting. Here are some excerpts from the start and heart of the opinion for context:

This is a direct appeal from Arthur Payton’s sentence to serve 45 years in prison for organizing a series of bank robberies in Michigan.  Payton argues that his sentence is unreasonable.  We agree, vacate his sentence, and remand....

Payton turned 46 years old before his sentencing hearing.  Taking into account Payton’s criminal record, the seriousness of his crime, and penchant for recidivism, the presentence report recommended a sentence within the Guidelines range of 210 to 262 months, or between 17 and a half to 22 years.... The government urged the sentencing court to impose a more serious sentence of “at least” 300 months, or 25 years.  Payton’s counsel requested a sentence within the Guidelines range, arguing that even with a Guidelines sentence Payton would be released as an elderly man — somewhere between 63 to 68 years old — who would present little threat to the public.

After hearing each side, the judge sentenced Payton to 540 months, or 45 years in prison. The judge discussed a number of the sentencing factors listed in 18 U.S.C. § 3553(a), focusing on Payton’s brazen recidivism and the threat he posed to the public. The court concluded that the 45 year sentence was “the minimum sentence” that was “reasonable and sufficient but not greater than necessary to accomplish the goals of sentencing for this defendant.”...

Payton’s 45 year sentence is a “major departure,” “unusually harsh,” and one that demands a “significant explanation.”  Gall, 552 U.S. at 51.  A sentence that more than doubles the Guidelines recommendation, stacks twenty years on to the government’s request, and keeps the defendant in prison until he is ninety one years old requires explanation about why such a sentence is “sufficient, but not greater than necessary” to achieve the goals of sentencing. 18 U.S.C. § 3553(a).

We find the district court’s explanation lacking in Payton’s case.  At minimum, the court failed to adequately respond to Payton’s argument that his advanced age diminishes the public safety benefit of keeping Payton in prison an extra twenty years beyond the recommendation of the Guidelines.  Even presuming Payton’s desire to rob banks is insatiable, as the government argues, Payton contends that age will diminish his very ability to rob banks.  This argument attacks the foundations of the government’s support for the imposed sentence, and the court’s reasoning that the threat posed by a sixty-eight-year-old Payton makes a longer sentence not simply prudent but necessary.

The court's discussion to this point is notable, but the opinion then takes an especially interesting turn with this paragraph (in which I have eliminated footnote references):

The Sentencing Commission has observed that “[r]ecidivism rates decline relatively consistently as age increases.” Recent analysis from the Bureau of Justice Statistics considering the recidivism rates of released prisoners in 30 states (including Michigan) from 2005 to 2010 supported the Commission’s conclusion, finding decreased recidivism rates as prisoners age. These statistics suggest that past fifty years old there is a significantly lower rate of recidivism. Both the Guidelines and our Circuit’s cases explicitly acknowledge that a defendant’s age, and specifically old age, is a relevant consideration in sentencing. U.S.S.G. § 5H1.1; United States v. Berry, 565 F.3d 332, 341 (6th Cir. 2009); United States v. Davis, 537 F.3d 611, 616-17 (6th Cir. 2008). And observers of the criminal justice system have long acknowledged the “key” argument “that elderly offenders pose so low a risk to the public that long or otherwise harsh sentences have little to no utilitarian benefit.”  Indeed, they observe that “because of health or other reasons, elderly offenders have the lowest rate of recidivism of all types of offenders; in fact, only about one percent of elderly offenders ever face a second conviction.”   Studies indicate that neurotransmitters affecting aggression supplied at the synapses of brain neurons vary based on age, and may explain the observed decline in recidivism among older prisoners. Such evidence, together with statistical support, suffices to require a sentencing judge to explain carefully why a criminal defendant like Payton remains likely to engage in violent robberies between the age of seventy and ninety.  The district court did not address Payton’s argument on this issue, and therefore did not provide an adequate explanation for imposing such a harsh sentence.

Kudos to the Sixth Circuit for giving some real teeth to reasonable review, and especially for its willingness to bring some empirical research into an analysis of means for a sentence to be "sufficient but not greater than necessary."

June 12, 2014 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Wednesday, June 11, 2014

Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform

Long-time readers know that we used to be able to get Bill Otis's tough-on-crime perspective on sentencing reform via the comments to posts here, but now we all need to head over to Crime & Consequences to see his take on current sentencing events.  Not surprisingly, the discussion by US Sentencing Commission about whether to make its new lower drug guidelines retroactive has Bill going strong, and here are a sampling of him recent post from C&C:

The titles of all these posts provide a flavor of their contents, but I urge all folks following closely the debates over recent federal sentencing reform to click through and read all Bill has to say on these topics.  Notably, the first post listed above highlights how perspectives on broader reform debates will necessarily inform views on particular positions taken on smaller issues.  Bill assails DOJ for advocating for "large scale retroactivity" when it decided to yesterday to "support limited retroactivity of the pending drug guideline amendment."  In notable contrast, I have received a number of e-mails from advocates of federal sentencing reform today (some of which I hope to soon reprint in this space) that assail DOJ for not advocating for complete retroactivity.

June 11, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack