Sunday, March 20, 2016

Making an empirical case for the relative efficacy of post-Plata realignment in California

A trio of criminologists make a data-driven case for some positive aspects of California's experiences with realignment in this Washington Post opinion piece headlined "Releasing low-level offenders did not unleash a crime wave in California."  Here are excerpts (with a link to the report that provides the empirical basis for its claims):

Some fear that reducing sentences for nonviolent crimes and letting low-level offenders back on the streets — key components of prison reform — could produce a new and devastating crime wave.  Such dire predictions were common in 2011 when California embarked on a massive experiment in prison downsizing.  But five years later, California’s experience offers powerful evidence that no such crime wave is likely to occur.

In 2011, the Supreme Court ruled that California’s wildly overcrowded prisons were tantamount to cruel and unusual punishment and ordered the state to reduce its prison population by some 33,000 people in two years.  In response, the state enacted the controversial California Public Safety Realignment law, known in legislative shorthand as AB 109.

With a budget of more than $1 billion annually, “realignment” gave each of the state’s 58 counties responsibility for supervising a sizable class of offenders — the “triple nons,” or non-serious, nonviolent, non-sex offenders — formerly housed in state prisons. Each county received unprecedented flexibility and authority to manage this population as it saw fit.

Recently, we brought together a group of distinguished social scientists to do a systematic, comprehensive assessment of California’s prison downsizing experiment.  The results, published this month in the Annals of the American Academy of Political and Social Science, show that California’s decision to cede authority over low-level offenders to its counties has been, for the most part, remarkably effective public policy and an extraordinarily rich case study in governance....

To answer questions about the relationship between prison reform and crime rates, we not only compared statewide crime rates before and after the downsizing but also examined what happened in counties that favored innovative approaches vs. those that emphasized old-fashioned enforcement.

Clearly, our most important finding is that realignment has had only a very small effect on crime in California. Violent crime rates in the state have barely budged.  We’ve seen no appreciable uptick in assaults, rapes and murders that can be connected to the prisoners who were released under realignment.  This makes a lot of sense when you think about it; by and large, these offenders were eligible for release because of the nonviolent nature of their crimes.

On the other hand, a small uptick in property crime can be attributed to downsizing, with the largest increase occurring for auto theft.  So is this an argument against realignment and against prison reform more broadly?  We think not. The cost to society of a slight increase in property crime must be weighed against the cost of incarceration.

Take the example of auto theft. Our data suggest that one year served in prison instead of at large as a result of realignment prevents 1.2 auto thefts per year and saves $11,783 in crime-related costs plus harm to the victims and their families. On the other hand, keeping someone behind bars for a year costs California $51,889. In purely monetary terms — without considering, say, the substantial economic and social hardship that imprisonment can create for prisoners’ children and other relatives — incarcerating someone for a year in the hope of preventing an auto theft is like spending $450 to repair a $100 vacuum cleaner.

Turning to the question of which counties’ strategies were most successful, we have another important early finding: Counties that invested in offender reentry in the aftermath of realignment had better performance in terms of recidivism than counties that focused resources on enforcement.  As other states and the federal government contemplate their own proposals for prison downsizing, they should take a close look at what these California counties are doing right.

I have long been saying that California is a critical state to watch in the sentencing reform discussion, and I am pleased to see that a "group of distinguished social scientists" have so far concluded that the state's realignment experiences in the wake of the Supreme Court's Plata "has been, for the most part, remarkably effective public policy." But, critically, thanks to voter initiatives, California's recent sentencing reform efforts have not been confined to realignment: in 2012, California voters passed reforms to the state's three strikes laws via Prop 36, and in 2014 California voters passed reforms to what crimes are treated as felonies via Prop 47. And, notably, though some in law enforcement were quick to complain after AB 109 that realignment was responsible for a uptick in property crimes in the state, of late the focus of crime concerns and criticism has been Prop 47.

As I have repeatedly said in this space and others, I think it is especially problematic that California does not have the help of a independent sentencing commission that could and should seek to track and assess all these moving sentencing reform parts in the state.  In the absence of such a body, we all will have to rely on empirical and advocacy work done by outside researchers and policy groups concerning the effects of sentencing reform on the west coast.

March 20, 2016 in National and State Crime Data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Saturday, March 19, 2016

"Voices on Innocence"

The title of this post is the title given to a collection of short essays by a number of notable authors now available at this link via SSRN. Here is the abstract for the collection:

In the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system — innocence.  Innocence is an issue that pervades various areas of research and influences numerous topics of discussion.

What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing?  What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations?  What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if so, what does this mean for capital punishment? As these and other examples demonstrate, the importance and influence of the innocence issue is boundless.  As the group, representing various perspectives, disciplines, and areas of research, discussed these and other questions, it also considered the role of innocence in the criminal justice system more broadly and examined where the innocence issue might take us in the future.

This article is a collection of short essays from some of those in attendance — essays upon which we might reflect as we continue to consider the varying sides and differing answers to the issue of innocence.  Through these diverse and innovative essays, the reader is able to glimpse the larger innocence discussion that occurred in the summer of 2015. As was the case at the roundtable event, the ideas expressed in these pages begins a journey into an issue with many faces and many paths forward for discussion, research, and reform.

March 19, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Friday, March 18, 2016

Making the (Trumpian?) case for winning the drug war via full legalization

HarpersWeb-Cover-201604-302x410_black This cover story of the April 2016 issue of Harper's magazine is authored by Dan Baum and is headlined "Legalize It All: How to win the war on drugs."  And, as I mean to suggest via  the headline of this post, this article may be channeling what GOP Prez candidate front-runner Donald Trump really thinks about how to improve modern drug policy in the US.  (Recall that I had this post on my marijuana reform blog, way back when Trump first announced his serious run for the Oval Office last summer, which highlights that Trump not all that long ago had once suggested full legalization would be the only way to "win" the drug war.)  Here are is an except from the first part of the lengthy Harper's piece:

Nixon’s invention of the war on drugs as a political tool was cynical, but every president since — Democrat and Republican alike — has found it equally useful for one reason or another. Meanwhile, the growing cost of the drug war is now impossible to ignore: billions of dollars wasted, bloodshed in Latin America and on the streets of our own cities, and millions of lives destroyed by draconian punishment that doesn’t end at the prison gate; one of every eight black men has been disenfranchised because of a felony conviction.

As long ago as 1949, H. L. Mencken identified in Americans “the haunting fear that someone, somewhere, may be happy,” an astute articulation of our weirdly Puritan need to criminalize people’s inclination to adjust how they feel.  The desire for altered states of consciousness creates a market, and in suppressing that market we have created a class of genuine bad guys — pushers, gangbangers, smugglers, killers.  Addiction is a hideous condition, but it’s rare. Most of what we hate and fear about drugs — the violence, the overdoses, the criminality — derives from prohibition, not drugs. And there will be no victory in this war either; even the Drug Enforcement Administration concedes that the drugs it fights are becoming cheaper and more easily available.

Now, for the first time, we have an opportunity to change course. Experiments in alternatives to harsh prohibition are already under way both in this country and abroad. Twenty-three states, as well as the District of Columbia, allow medical marijuana, and four — Colorado, Washington, Oregon, and Alaska — along with D.C., have legalized pot altogether.  Several more states, including Arizona, California, Maine, Massachusetts, and Nevada, will likely vote in November whether to follow suit.

Portugal has decriminalized not only marijuana but cocaine and heroin, as well as all other drugs.  In Vermont, heroin addicts can avoid jail by committing to state-funded treatment. Canada began a pilot program in Vancouver in 2014 to allow doctors to prescribe pharmaceutical-quality heroin to addicts, Switzerland has a similar program, and the Home Affairs Committee of Britain’s House of Commons has recommended that the United Kingdom do likewise.  Last July, Chile began a legislative process to legalize both medicinal and recreational marijuana use and allow households to grow as many as six plants.  After telling the BBC in December that “if you fight a war for forty years and don’t win, you have to sit down and think about other things to do that might be more effective,” Colombian president Juan Manuel Santos legalized medical marijuana by decree. In November, the Mexican Supreme Court elevated the debate to a new plane by ruling that the prohibition of marijuana consumption violated the Mexican Constitution by interfering with “the personal sphere,” the “right to dignity,” and the right to “personal autonomy.”  The Supreme Court of Brazil is considering a similar argument.

Depending on how the issue is framed, legalization of all drugs can appeal to conservatives, who are instinctively suspicious of bloated budgets, excess government authority, and intrusions on individual liberty, as well as to liberals, who are horrified at police overreach, the brutalization of Latin America, and the criminalization of entire generations of black men.  It will take some courage to move the conversation beyond marijuana to ending all drug prohibitions, but it will take less, I suspect, than most politicians believe.  It’s already politically permissible to criticize mandatory minimums, mass marijuana-possession arrests, police militarization, and other excesses of the drug war; even former attorney general Eric Holder and Michael Botticelli, the new drug czar — a recovering alcoholic — do so. Few in public life appear eager to defend the status quo.

A few prior related posts:

March 18, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10)

Monday, March 14, 2016

"The Tyranny of Small Things" observed during local sentencing proceedings

I have long told my student that you can learn a lot by just watching, and this new paper on SSRN authored by Yxta Maya Murray reinforces this point in an interesting sentencing setting. The paper is just titled "The Tyranny of Small Things," and here is the abstract:

This legal-literary essay recounts a day I spent watching criminal sentencings in an Alhambra, California courthouse, emphasizing the sometimes quotidian, sometimes despairing, imports of those proceedings.  I take leave of the courthouse marshaling arguments that resemble those of other scholars who tackle state overcriminalization and selective enforcement.  My original addition exists in the granular attention I pay to the moment-by-moment effects of a sometimes baffling state power on poor and minority people.  In this approach, I align myself with advocates of the law and literature school of thought who believe that the study (or, in this case, practice) of literature will aid the aims of justice by disclosing buried yet critical human experience and emotions.

March 14, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4)

Sunday, March 13, 2016

"Feds want convicted journalist to serve 5 years, his lawyers ask for no prison time"

The title of this post is the headline of this interesting ArsTechnica article previewing an interesting federal sentencing scheduled for later this month in federal court in California.  Here are the particulars with all links from the original article to the parties' sentencing submissions and related materials:

Federal prosecutors have asked a judge to impose a sentence of five years against Matthew Keys, who was found guilty last year on three counts of criminal hacking under the Computer Fraud and Abuse Act.  That federal law, which was passed in 1984, was what the late activist Aaron Swartz was prosecuted under.  Last year, President Barack Obama called for Congress to expand prison sentences for those found guilty under this law.

Keys worked previously as an online producer for KTXL Fox 40, a Sacramento, California-based television station. Prosecutors argued that in December 2010, shortly after his dismissal, he handed over login credentials to a Tribune Media content management system (CMS), which allowed members of Anonymous to make unauthorized changes to a Los Angeles Times story. (At the time, both companies were both owned by Tribune Media.)  Those changes amounted to a short-lived prank: they lasted only 40 minutes, and there is little evidence that the prank was widely noticed. Criminal charges were not filed until March 2013.

Even after he was found guilty, Keys continued to deny the government’s narrative.  In a brief interview with Ars after his trial concluded, he described the prosecution’s theory as "total bullshit."

"A sentence of five years imprisonment reflects Keys’s culpability and places his case appropriately among those of other white-collar criminals who do not accept responsibility for their crimes," Matthew Segal, an Assistant United States Attorney, wrote in the Thursday sentencing memorandum.

In the 12-page filing, Segal explained that, although Keys initially "succeeded in deflecting suspicion away from himself," the FBI changed course after it reviewed chat logs found on the computer belonging to Wesley "Laurelai" Bailey, a former Anonymous member.  Those chat logs between Bailey and Ryan Ackroyd (aka "Kayla"), included a line where Kayla wrote: "Iol he's not so innocent and we have logs of him too, he was the one who gave us passwords for LA times, fox40 and some others, he had superuser on alot of media."  Segal explains further that Keys’ attack was "an online version of urging a mob to smash the presses for publishing an unpopular story," adding that Keys employed "means that challenge core values of American democracy."

Keys’ defense lawyers filed their own sentencing memorandum on Wednesday, asking the court to impose no prison time at all or go with a "non-custodial sentence."  The 69-page filing goes to great lengths to illustrate Keys lengthy history in journalism, going way back to his elementary school days when he edited the school bulletin.  "In recent years, Matthew’s sacrifices have paid off in the form of impactful journalism that has received national attention," wrote Jay Leiderman, his attorney, who has also worked on many other Anonymous-related cases.  "His stories have encouraged discourse, influenced policy and won the attention and accolades from his peers in the industry, public interest groups and even law enforcement officials."

Leiderman also notes that if the government’s recommendations stand, "[Keys] faces a far more severe sentence than any member of Lulzsec served.  60 months, which the Government seeks, would be more than any person engaged in hacking crimes during this period — by about double!"

I am a bit sorry I am not teaching my sentencing class this semester because the issues raised in this case and the parties' filing provide a great primer on guideline calculation disputes and the application of post-Booker sentencing jurisprudence based in the factors set forth in 3553(a). (I am teaching a 1L legal writing class in which students have to develop variance arguments for a white-collar offender, and I may urge my students to look at the parties' submissions for inspiration.)

March 13, 2016 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

"Why We Would Spare Walter White: Breaking Bad and the True Power of Mitigation"

The title of this post is the title of this interesting-looking article authored by Bidish Sarma and recently posted on SSRN. Here is the abstract:

What if Walter White had been captured by the federal authorities?  Considering that he committed the murders of many individuals and orchestrated many more in the course of building and running his global meth trade, the prosecution would be able to seek the ultimate punishment against him.  But, would a jury give him the death penalty? Walt’s gripping journey stirred within viewers a range of complex emotions, but even those revolted by his actions must concede that it is extraordinarily difficult to envision a random collection of twelve people unanimously agreeing that he deserves a state-sanctioned execution.  Indeed, it seems that many of us actually rooted for Walt throughout the series, even when we struggled to understand why.

This Essay explores the answer to the question of why we would spare Walter White from the death penalty.  Its exploration underscores the critical importance of “mitigation” — a capacious term that refers to evidence introduced by capital defense lawyers to persuade jurors to hand down something less harsh than a death sentence.

Breaking Bad, through its masterful construction of its core narrative, situated us to empathize with Walt, to view him as someone we could understand, to feel about him the way we might feel about a friend or colleague or neighbor. Whether we argued vociferously in online forums that his actions were nearly always justified or simply watched with a suppressed but distinct hope that he might emerge as a partially redeemed man, many of us never condemned Walt. We did not want him to die an undignified death at someone else’s hands.  In fact, we were relieved that death came to him on his own terms.  And, if he had been captured, we would not have sent him to the death chamber.  Knowing Walt — understanding his “mitigation” — bent us towards mercy.

To start, this Essay explains how a capital trial unfolds and sets out the factors that jurors must take into account when they decide whether to choose death for a convicted capital defendant.  After establishing the basic framework for the death-determination in Part I, this Essay focuses on Walter White’s hypothetical penalty phase in Part II.  It describes both the “aggravating” evidence the prosecution would use to persuade jurors that death is the appropriate punishment and the “mitigating” evidence the defense would use to persuade jurors that a sentence less than death is appropriate.  Part II concludes with an explanation of why a jury likely would not sentence Walter White to die.

Part III steps back to identify distinct conclusions that we could draw from viewers’ prevailing willingness to ride with Walt until the end.  It concludes that it would be unwise to dismiss Walt as a fictitious outlier. Rather than ask ourselves what makes Walt’s particular case for mercy special, we should ask ourselves how the show managed to make him so real.  Breaking Bad’s storytelling proved so powerful that the show’s writers were themselves amazed that viewers continued to stand by Walt’s side through it all.  If we would spare Walter White, surely we would spare many others facing capital punishment.  But to get there, we need to do more than hear that they have struggles and triumphs of their own; we need to walk with them on their journeys.  We must feel like we did when the last episode of Breaking BadI began — wondering exactly how things will end, but unwilling to bring that end by our hands.

March 13, 2016 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Thursday, March 10, 2016

Rep Lamar Smith makes case against federal sentencing reform by questioning success of Texas reforms

One recurring theme of many advocates for federal sentencing reform is that state-level reforms, lead notably by Texas, have been successful at reducing incarceration levels without seeing an increase in crime. But at the end of this new Washington Times commentary, headlined "How weak prison terms endanger the innocent: Mandatory minimums keep the guilty behind bars to pay their debt to society," US House Representative Lamar Smith from Texas questions whether Texas reforms have truly been effective. Here are some notable excerpts from the piece:

Congress should be wary of reducing federal prison sentences. Unfortunately, much of the discussion on sentencing laws has focused on the criminals. What about the victims of their crimes? What about the dangers of putting these offenders back out on the streets where many prey again on law-abiding citizens?

The lives and property of innocent Americans are at stake.  Past experience should persuade us not to weaken penalties, which could lead to thousands of dangerous criminals being released into our communities....

Supporters of lower prison sentences also argue that judges need more discretion.  They say that a one-size-fits-all penalty does not allow for consideration of mitigating factors, which might be necessary to determine a fair sentence.

But prior experience with judicial discretion in sentencing counters this claim.  It is exactly the problem of too much discretion in the hands of activist judges that fueled the decades-long crime wave that preceded mandatory minimum sentences.  Furthermore, judicial discretion led to widespread discrepancies in sentences, even when the circumstances were similar.

The minimum sentencing structure ensures that judges apply a uniform penalty based on the crime, not on the judge’s subjective opinion.  Criminals receive equal punishment for equal crimes.  And the removal of hardened criminals from our streets for longer periods of time helps make our neighborhoods safer....

In my home state of Texas, new policies sought to reduce incarceration time and focus resources on treatment and post-release supervision.  Yet almost one-quarter of inmates released have been rearrested and sent back to prison within three years.  Early release programs don’t appear to be working.

Mandatory minimums help keep these individuals behind bars where they belong.  That’s one explanation for why crime rates remain down.  The purpose of criminal law is to punish bad behavior, deter criminal acts and protect the American people.  Releasing prisoners too soon could condemn many Americans to becoming victims of violence.  This can be avoided if prisoners are not released before their sentences have been served.

March 10, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Wednesday, March 09, 2016

"Criminal Injustice: A Cost Analysis of Wrongful Convictions, Errors, and Failed Prosecutions in California's Criminal Justice System"

The title of this post is the title of this new report recently published by The Opportunity Institute.  Here is the report's executive summary:

Criminal (In)justice examines 692 individuals who were prosecuted and convicted in California state or federal courts, only to have their convictions dismissed because the government prosecuted the wrong person, because the evidence was lacking, or because the police, defense, prosecutors, or court erred to such a degree that the conviction could not be sustained.  The 692 individuals subjected to these failed prosecutions spent a total of 2,346 years in custody, and their prosecutions, appeals, incarceration, and lawsuits cost California taxpayers an estimated $282 million when adjusted for inflation.  Eighty-five of these cases arose from a large group exoneration — the Rampart police corruption scandal — and are discussed separately in a later section of this report.

The remaining 607 convictions, all of which were reversed between 1989 and 2012, illuminate a dark corner in California’s criminal justice system.  These 607 individuals spent a total of 2,186 years in custody.  They burdened the system with 483 jury trials, 26 mistrials, 16 hung juries, 168 plea bargains, and over 700 appeals and habeas petitions. Many of the individuals subjected to these flawed prosecutions filed lawsuits and received settlements as a result of the error, adding to the taxpayer cost.  Altogether, we estimate that these 607 faulty convictions cost taxpayers $221 million for prosecution, incarceration and settlement, adjusted for inflation. This estimate is only a window onto the landscape of possible costs, as it does not include the often unknowable costs suffered by those subjected to these prosecutions.

The sections below provide a review of these 607 cases and offer some recommendations for change.

The first section, Characteristics of Injustice, paints a collective picture of the cases in our sample. Compared to California’s average, the individuals subjected to these errors were disproportionately prosecuted for violent crimes, especially homicide. This may be because prosecutions for violent crime are more likely to generate error than prosecutions for other crimes, though that question was beyond the scope of our research. Whatever the reason, failed prosecutions for violent crime account for a greater percentage of the wasted $221 million than failed prosecutions for other crimes. Indeed, flawed homicide convictions alone account for 52% of the $221 million, in part because these homicide cases took an average of 11 years to resolve and generated more lawsuits and civil settlements.

The second section, Causes of Injustice, catalogs the multitude of errors, dividing them into eight categories: eyewitness identification errors, prosecutorial misconduct, ineffective defense counsel, judicial mistake during trial, Fourth Amendment search and seizure violations, inadequate police practices before trial, unreliable or untruthful official testimony (officer or informant), and failure of prosecutorial discretion.

Prosecutorial misconduct and eyewitness identification were the most common errors in the flawed homicide prosecutions. When broken down by type of error, prosecutorial misconduct accounted for more of the cost in our sample than any other type of error.  By contrast, the most common errors in our sample were Fourth Amendment search and seizure errors, and judicial mistake.  These errors were resolved relatively quickly, however, and resulted in relatively little cost.

The third section, Costs of Injustice, walks through the cost analysis.  It documents the many hurdles raised by the California Victims Compensation and Government Claims Board.  This section also identifies many of the additional costs not captured by our methodology, including costs arising from wrongful misdemeanor convictions, flawed juvenile convictions, and cases that resolved prior to conviction, among others.  These unaccounted costs highlight the fact that this report documents only a portion of the vast unknown waste in California’s criminal justice system — but it is at least a beginning.

Criminal (In)justice ends with a section on Next Steps and Recommendations.  The problems presented in this report are undoubtedly complex, and each of them individually could be subject to its own investigation.  This report does not attempt to comprehensively define the universe of best practices that will solve all of the issues raised.  Instead, it identifies promising avenues for reform and highlights practices and jurisdictions that are leading the way. In particular, in 2006 the California Commission on the Fair Administration of Justice issued a report containing detailed recommendations regarding eyewitness identification, false confessions, informant testimony, problems with scientific evidence, and accountability for prosecutors and defense attorneys.  The recommendations represent the unanimous views of a diverse group of prosecutors, defense attorneys, judges, law enforcement, and other stakeholders.  To date, however, many of the substantive reforms have not been adopted, compromising public safety and leaving our criminal justice system at risk of endlessly repeating the errors catalogued here. (The report can be found at www.ccfaj.org.)

March 9, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Tuesday, March 08, 2016

Judge John Gleeson invents and issues a "federal certificate of rehabilitation"

Thanks to this post at the Collateral Consequences Resource Center, I see that US District Judge John Gleeson has issued yet another remarkable opinion concerning the collateral consequences of a federal criminal conviction and what he thinks he can do as a federal judge in response.  Here is how the 33-page opinion in  Doe v. US, No. 15-MC-1174 (EDNY March 7, 2016)(available here) gets started:

On June 23, 2015, Jane Doe moved to expunge a now thirteen-year-old fraud conviction due to its adverse impact on her ability to work.  The conviction has proven troublesome for Doe because it appears in the government’s databases and in the New York City Professional Discipline Summaries.  In other words, the conviction is visible to a prospective employer both as the result of a criminal background check and upon examination of her nursing license.  Numerous employers have denied Doe a job because of her conviction.  On more than one occasion, she was hired by a nursing agency only to have her offer revoked after the employer learned of her record. Despite these obstacles, Doe has found work at a few nursing companies, and she currently runs her own business as a house cleaner.  Doe’s two children help to support her, and during periods of unemployment, her parents have also assisted her financially.

The government opposes Doe’s motion, contending that federal district courts do not have subject matter jurisdiction to expunge a conviction on equitable grounds.  The Second Circuit has ruled, however, that “[t]he application of ancillary jurisdiction in [expungement] case[s] is proper.” U.S. v. Schnitzer, 567 F.2d 536, 538 (1977), cert. denied, 435 U.S. 907 (1978).  Accordingly, I have weighed the equities in this case, which are grounded in my understanding of Doe’s criminal conviction and sentence; I was the judge who presided over her jury trial and imposed punishment.

I conclude that while Doe has struggled considerably as a result of her conviction, her situation does not amount to the “extreme circumstances” that merit expungement.  See id. at 539.  That said, I had no intention to sentence her to the unending hardship she has endured in the job market.  I have reviewed her case in painstaking detail, and I can certify that Doe has been rehabilitated.  Her conviction makes her no different than any other nursing applicant.  In the 12 years since she reentered society after serving her prison sentence, she has not been convicted of any other wrongdoing.  She has worked diligently to obtain stable employment, albeit with only intermittent success. Accordingly, I am issuing Doe a federal certificate of rehabilitation.  As explained below, this court-issued relief aligns with efforts the Justice Department, the President, and Congress are already undertaking to help people in Doe’s position shed the burden imposed by a record of conviction and move forward with their lives.

March 8, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (8)

Sunday, March 06, 2016

In praise of (impossible?) request tasking Government Accountability Office with accounting for "the cost of crime in the United States"

Crime-2010I was quite pleased to discover this notable press release from the House Judiciary Committee reporting on a notable letter sent by two Representatives to the Comptroller General.  Here is the substantive heart of both the press release and the letter:

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Congressman Steve King (R-Iowa) have requested that the Government Accountability Office (GAO) study the cost of crime in the United States to better inform members of the House Judiciary Committee as it continues its bipartisan criminal justice reform initiative.  In 2014, there were nearly 1.2 million violent crimes and 8.3 million property crimes in the United States, generating substantial costs for Americans, communities, and the country. In a letter to Comptroller General Gene Dodaro, Goodlatte and King request that the GAO study this issue and breakdown the cost of crime for federal, state, and local governments.

Below is the text of the letter....  

Dear Comptroller General Dodaro:

In June of last year, the House Judiciary Committee launched a criminal justice reform initiative.  Over the ensuing months, the Committee has addressed a variety of criminal justice issues through legislation. In order to assist our efforts in this endeavor, we are writing to you regarding our concerns about the cost of crime in the United States.  According to the Federal Bureau of Investigation, there were an estimated 1,165,383 violent crimes and an estimated 8,277,829 property crimes in 2014.  Undoubtedly, these and other crimes generate substantial costs to society at individual, community, and national levels. 

Accordingly, we seek the assistance of the Government Accountability Office in fully investigating the cost of crime in the United States.  Specifically, we are interested in:

  1. The cost of Federal and State crimes to victims of crime:
    1. Total cost
    2. Cost by state
  2. The cost of crime to the United States economy and to state economies
  3. The cost of crime to Federal, State, and local governments
  4. The cost of crime, per year:
    1. Per type of criminal offense
    2. Average cost per criminal  
    3. Average cost per victim
  5. The rate of recidivism of offenders who are released from terms of imprisonment, and the costs described under #1 through #3 for crimes committed by such offenders subsequent to their release  

We look forward to working with you so that GAO can expeditiously complete this important task. 

I am already very excited to see what the GAO comes up with as it takes up this request to "study the cost of crime in the United States." Indeed, upon seeing this press release, I started thinking it was quite notable and somewhat curious that there apparently has not been any prior requests for the GAO to engaging in what I agree is an "important task."

That said, I think this task has to start with important and challenging questions that are integral to defining what kinds of "Crimes" and what kinds of "costs" are to be included in this study and its efforts at accounting. Notably, this letter references the "nearly 1.2 million violent crimes and 8.3 million property crimes in the United States" as reported by the FBI, but this accounting leaves out what would seem to be some of the most wide-spread significant crimes in America according to various measures of nationwide illegal behaviors each year, namely drunk driving (with over 100 million estimated yearly incidents) and marijuana trafficking (over 50 million estimated incidents). Should the GAO leave out drunk driving incidents unless one includes a physical harm to persons or property? Should the GAO leave out marijuana offenses altogether in its accounting even though roughly half of all drug arrests nationwide are for these offenses and those arrests have various obvious economic costs to governments?

Ultimately, though, the challenge of defining what "crimes" to consider pales in comparison to defining what "costs" to consider in this kind of study. The majority of violent crimes recorded by the FBI are aggravated assaults, which are "an unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury." And these kinds of assaults seem to come in all shapes and sizes in 2014 according to FBI data: Of those reported to law enforcement, "26.9 percent were committed with personal weapons, such as hands, fists, or feet. Firearms were used in 22.5 percent of aggravated assaults, and knives or cutting instruments were used in 18.8 percent. Other weapons were used in 31.9 percent of aggravated assaults." Can GAO reasonably guess that the "costs" to a victim of being severely beaten by fists are less (or perhaps more) than the costs of being shot? Do these costs turn significantly on the nature of the victim based on their age, health, gender or professional activities? If such an assault requires a person to say in bed for a week to recover, should we say the "costs" of missed acitivities are the same or are different for, say, a sales clerk or a student or an unemployed person?

Critically, as the image reprinted here highlights, doing these calculations is possible if you make a lot of assumptions.  Indeed, the Rand Corporation has run these numbers in the past, although many questions and concerns could obviously be raised about its accounting decisions.

March 6, 2016 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Saturday, March 05, 2016

"From Mass Incarceration to Mass Control, and Back Again: How Bipartisan Criminal Justice Reform May Lead to a For-Profit Nightmare"

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

Since 2010, advocates on the right and left have increasingly allied to denounce mass incarceration and propose serious reductions in the use of prisons.  This alliance serves useful shared purposes, but each side comes to it with distinct and in many ways incompatible long-term interests. I f progressive advocates rely solely on this alliance without aggressively building our own vision of what decarceration should look like, the unintended consequences could be serious.
This Article describes the current mass incarceration paradigm and current left-right reform efforts. It then outlines how, if progressives do not set clear goals for what should replace mass incarceration, these bipartisan efforts risk creating a nightmare scenario of mass control, surveillance, and monitoring of Black and Brown communities.  Finally, the Article explains why this mass control paradigm would lay the groundwork for a heavily-privatized, extraordinarily difficult-to-end resurgence of mass incarceration in subsequent decades.

March 5, 2016 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Friday, March 04, 2016

"The Absence of Equality and Human Dignity Values Makes American Sentencing Systems Fundamentally Different from Those in Other Western Countries"

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

Concern for equality and human dignity is largely absent from American sentencing.  Prison sentences are imposed much more often than in any other Western country and prison terms are incomparably longer.  The greater frequency of imprisonment is a product of punitive attitudes and politicization of crime control policies.  The longer terms result partly from abolition of parole release in every jurisdiction for all or some inmates, but mostly from the proliferation since the mid-1980s of mandatory minimum, three-strikes, life without parole, and truth-in-sentencing laws.

The ideas that offenders should be treated as equals and with concern and respect for their interests largely disappeared, though they had been animating values of earlier indeterminate and determinate sentencing systems.  Their disregard is evident in the nature of contemporary laws but also in low-visibility policies and practices including the near absence of meaningful systems of appellate sentence review, low standards of proof — or none at all — at the sentencing stage, and the absence of policies that limit the weight given to past convictions in the sentencing of new offenses or set standards for sentencing of people convicted of multiple offenses.

March 4, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, March 03, 2016

Indiana county prosecutor seeks re-election by bragging about "proudly over-crowding our prisons"

-radleybalkoflickrAs reported in this Reason blog posting, a local prosecutor in Indiana is pursuing reelection by bragging about being proud to overcrowd the state's prisons. The full headline of the posting, along with the picture, provides the essentials of this notable story: "Indiana Prosecutor Bradley Cooper Is 'Proudly Over-Crowding our Prisons': Cooper's new campaign flyer brags about the people he's put in prison for decades over drug sales and minor theft." Here is more from the blog post about this local prosecutor and his record:

As American conservatives and liberals alike embrace criminal justice reform, those opposed are blatantly bragging about their overcriminalization agendas. One particularly gross example: a new campaign mailer from Johnson County, Indiana, Prosecutor Bradley D. Cooper, which announces that he has been busy "proudly over-crowding our prisons."

The flyer also features mugshots from convicted criminals, along with what they were found guilty of and what prison sentence they were given. It includes a man who was sentenced to 40 years in prison for selling meth, a man convicted of manslaughter who died while in prison, and a man who received a 40-year sentence for burglary.

In the latter case, William A. Russell was arrested after breaking into someone's home and stealing $52. For that offense, he was sentenced to 20 years in prison. A trial court also determined that he was a "habitual offender," which qualified him for a sentencing enhancement of 20 years.

Another of the offenders featured is Amanda Smith, a schizophrenic woman who drowned her son in 2012 while he was on a court-ordered overnight visit from foster care; she claimed it was God's will and turned herself in immediately afterward. Smith's lawyers argued for her to be sent to a state mental hospital, but a judge sentenced her to 55 years in state prison instead.

Last year, Cooper made a fuss that a man accused of forcible rape was only eligible to receive 63 years behind bars, pursuant to a 2014 change to Indiana's criminal code. Previously, the man could have received a maximum sentence of 168 years in prison. Cooper called the sentencing-reform measure the "hug a thug" law and accused the state of coddling violent criminals.

For more about this local prosecutor professional history and accomplishments, his office's website includes this bio and this resume for Bradley D. Cooper. Interestingly, I believe that Prosecutor Bradley attended the same law school as frequent blog commentor federalist, and thus I would be especially eager to hear from federalist (or others) whether they think this kind of campaign slogan is unsavory or perhaps even unethical.

March 3, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

Has the federal Adam Walsh Act been a success and should it be reauthorized?

The question in the title of this post is prompted by this recent press release coming from the office of Senator Chuck Grassley, the Chairman of the Senate Judiciary Committee, which is titled "Grassley Introduces Bill to Aid States, Public in Tracking Sex Offenders." Here is how it begins:

Senate Judiciary Committee Chairman Chuck Grassley today introduced legislation to assist states in preventing future abuses by registered sex offenders.  The Adam Walsh Child Protection and Safety Act Reauthorization helps to improve tracking of sex offenders through federal support of state registries and dedicated resources to target offenders who fail to comply with registration requirements.

“Preventing sex crimes, especially by known offenders, requires a team effort by law enforcement at every level. Congress has passed laws to promote a unified approach to sex offender registration and notification.  This bill will help to ensure that our state and local law enforcement officials continue to have the federal resources and assistance they need to successfully track offenders with a history of crimes against children,” Grassley said.

The Adam Walsh Child Protection and Safety Act of 2006 established nationwide notification and registration standards for convicted sex offenders to bolster information sharing between law enforcement agencies and increase public safety through greater awareness.  Grassley’s bill reauthorizes key programs in the 2006 act to help states meet the national standards and locate offenders who fail to properly register or periodically update their information as the law requires.

Specifically, Grassley’s bill reauthorizes the Sex Offender Management Assistance Program, a federal grant program that assists state and local law enforcement agencies in their efforts to improve sex offender registry systems and information sharing capabilities.  The bill also authorizes resources for the U.S. Marshals Service to aid state and local law enforcement in the location and apprehension of sex offenders who fail to comply with registration requirements.

The Adam Walsh Child Protection and Safety Act is named for a six-year-old Florida boy who was kidnapped and murdered in 1981.  Adam’s father, John Walsh, worked closely with Congress to develop the 2006 law and the reauthorization that was introduced today.  Cosponsors of the bill include senators Chuck Schumer (D-N.Y.), Orrin Hatch (R-Utah) and Dianne Feinstein (D-Calif.).

Candidly, I am not entirely sure what would be the best metrics for judging the "success" of the Adam Walsh Act, and perhaps that should be the question in the title of this post. So, dear readers, I would be eager to hear thoughts both on how we ought to assess the success of the AWA and also on whether it ought to be reauthorized.

March 3, 2016 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (14)

Wednesday, March 02, 2016

Are death penalty advocates troubled by plea deal, presumably urged by families of two slain Viriginia college students, that allows a double murderer to escape any real punishment?

The question in the title of this post is my reaction to this news story about an expected plea deal which seem to allow a high-profile double-murderer in Virginia to, in essence, avoid suffering any real punishment for murdering two college students.  The article is headlined "Report: Matthew to be spared death penalty in Va. student murders," and here are the details (with my emphasis added):

Two remarkably similar murder cases that amplified concerns about campus safety are expected to end when a Virginia man enters a plea deal that will spare him a possible death sentence. Jesse LeRoy Matthew Jr., 34, is expected to enter pleas resolving the Hannah Graham and Morgan Harrington cases Wednesday, according to Albemarle County Commonwealth's Attorney Robert N. Tracci. The prosecutor did not disclose the terms of the plea agreement ahead of the hearing.

Sources told CBS affiliate WTVR Matthew is expected to plead guilty to first-degree murder and intent to defile in both cases.  WTVR reporter Laura French reports via Twitter that Matthew is expected to serve four life sentences with no eligibility for parole. The deal will spare him the death penalty, sources told the station.

The former hospital orderly and cab driver is charged with capital murder in the September 2014 death of 18-year-old University of Virginia student Graham. He also faces a first-degree murder charge in the 2009 death of Harrington, a 20-year-old Virginia Tech student.  He already is serving three life prison terms for a sexual assault in northern Virginia.

According to authorities, Graham and Harrington were young women in vulnerable straits when they vanished in Charlottesville five years apart...

Graham's disappearance, which came at a time of rising national concern about sexual assaults and other crimes on college campuses, prompted a massive search.  Her body was found five weeks later on abandoned property in Albemarle County, about 12 miles from the Charlottesville campus and 6 miles from a hayfield where Harrington's remains had been found in January 2010.

After police named Matthew a person of interest in Graham's disappearance, he fled and was later apprehended on a beach in southeast Texas.  He was charged with abduction with intent to defile, a felony that empowered police to swab his cheek for a DNA sample.  That sample connected Matthew to the 2005 sexual assault in Fairfax, a Virginia suburb of Washington, according to authorities.  The DNA evidence in the Fairfax sexual assault, in turn, linked Matthew to the Harrington case, authorities have said.

The charge against Matthew in the Graham case was later upgraded to capital murder, giving prosecutors the option to seek the death penalty.

Both the Harrington and the Graham families are supportive of the deal, WTVR reports.  Both families requested to give victim impact statements at the Wednesday afternoon hearing.

When I first saw the headline of this local story, I was puzzled by the willingness of Virginia prosecutors to let a defendant who is already serving multiple life sentences for other crimes now avoid any capital prosecution for two horrific murders. But, after reading that "the Harrington and the Graham families are supportive of the deal," I presume that these families strongly urged the prosecutors to take this kind of deal in order to conclude legal proceedings quickly and to allow them to get a measure of closure.

Assuming I am right that this plea deal is at the behest of the families of the victims, I am genuinely interested to hear from death penalty advocates about whether they think this outcome is ultimately a serious injustice. I surmise that some (many? most?) death penalty advocates think it is an injustice anytime a first-degree murderer escapes a capital prosecution and possible execution. In this case, given that the double-murderer is already serving life sentences for other crimes, this plea deal to additional life sentences means, functionally, Matthew is going to receive no real punishment at all for murdering Graham and Harrington.

Because I am a something of a death penalty agnostic, and especially because I am a strong supporter of taking very seriously the sentencing interests of crime victims in all cases, I really am not sure how I feel about this outcome.  But I am sure I would like to hear the opinions of others, especially those who genuinely believe, as did Immanuel Kant, that the "satisfaction of justice" demands the execution of certain killers.

March 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (29)

Mark Holden, GC at Koch Industries, makes "The Factual Case for Criminal Justice Reform"

As regular readers know, various groups and persons associated with the wealthy and politically active Koch brothers have been very supportive of state and federal sentencing reform efforts. Continuing in that tradition, Mark Holden, who is senior vice president and general counsel at Koch Industries, Inc., has authored this new Medium commentary titled "The Factual Case for Criminal Justice Reform."  I recommend the piece is full (with all its links), and here are excerpts:

These days, it’s hard to find legislation in Washington, D.C. that has bipartisan support. It’s even harder to find legislation that will help people improve their lives instead of making their lives worse.

Yet that’s exactly what both houses of Congress are currently doing through criminal justice reform legislation.  The Senate is considering the Sentencing Reform and Corrections Act.  It contains a series of long overdue reforms that have been tried at the state level and have been proven to reduce crime, lower spending on incarceration, reduce incarceration rates, and give people a better chance at leading a productive and fulfilling life once they’re released from prison.

There’s little doubt that the current system is dysfunctional.  American criminal justice is too often inconsistent with the promises of the Bill of Rights.  We have a two-tiered system, with the wealthy and the well-connected experiencing a much better system than the poor, oftentimes regardless of guilt or innocence.  A growing number of Americans recognize this  —  nearly 80 percent of the country supports reform.  So do many prosecutors and judges.  For example, liberal federal Judge Rakoff of the Southern District of New York and conservative Judge Kozinski of the Ninth Circuit Court of Appeals have raised awareness that innocent people are pleading guilty to crimes they didn’t commit because they cannot effectively defend themselves against the power of the government.  That is why calls for reform are growing so loud from both ends of the political spectrum that Congress can no longer ignore these problems, which have festered for more than three decades.

The numbers speak for themselves. Over the past decades more and more Americans are put behind bars, sometimes for crimes they didn’t commit or with punishments that are not consistent with the crime. The result has been a skyrocketing prison population that ruins lives and wastes money. At the federal level alone, the number of prisoners has increased by 795 percent in the past 35 years. Federal and state spending on prisons also increased over this timeframe to $8 billion annually, which is 3 to 4 times more per capita than we spend on education. America is now the world’s largest jailer, with only 5 percent of the world’s population but a whopping 25 percent of the world’s prisoners. And there are as many Americans with a college degree as there are Americans with a criminal record.

As more people get caught in this system, it breaks apart families, destabilizes communities, increases poverty, and makes it harder — if not impossible — for people to rejoin society after they’ve served their sentence. Why? Because criminal convictions are accompanied by countless collateral consequences that burden people for the rest of their lives.

Unfortunately, not everyone recognizes the need for reform. As demand for reform grows louder, the defenders of the status quo are mobilizing. Their argument is simple: Reforming the criminal justice system will endanger society and put people’s lives at risk. But these claims have no basis in reality. In fact, the Sentencing Reform and Corrections Act will have the opposite effect.

Many of its most important provisions are modeled after successful reforms from states such as Georgia, Utah, Kentucky, and Texas. In the past decade, more than half of states have passed a variety of changes to their criminal justice systems. Some lowered mandatory minimums  —  non-negotiable sentences that can run into the decades  —  for low-level offenders.  Others gave judges greater discretion in sentencing. And still more tried a variety of other worthwhile reforms, including prison reform and expungement of past criminal records so worthy individuals seeking redemption could put their past mistakes behind them and have a fresh start when leaving prison.

The results speak for themselves.  While the federal imprisonment rate increased by 15 percent over the last decade, the state rate fell by 4 percent.  This didn’t lead to an increase in crime, either.  No less than 32 states saw drops in both the percentage of people imprisoned and the overall crime rate.  Put another way: Criminal justice reform made society safer.

We need federal reforms along the same lines. That’s what the Sentencing Reform and Corrections Act would do, which is why it has broad support from law enforcement.  It contains a variety of reforms that would enhance public safety and make the criminal justice system more fair and humane....

Will lawmakers seize this opportunity to make people’s lives better, or will they fall prey to fear-mongering?  For the sake of the least fortunate in society, I certainly hope they make the right choice.

Some prior related posts on Koch family efforts in support of criminal justice reform:

March 2, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Tuesday, March 01, 2016

Former AG Mukasey delivers "clear" message to GOP on SRCA: "Law enforcement asks you to pass this bill."

The Hill has now published this notable new op-ed authored by Michael Mukasey and Ronal Serpas under the headline "Federal sentencing reform will aid law enforcement." Here are excerpts:

The Senate is back in session amid recent warnings from Sens. Ted Cruz (R-Texas), Tom Cotton (R-Ark.) and Jeff Sessions (R-Ala.) that federal sentencing reform would jeopardize public safety. They say the country cannot risk reform.

As a former attorney general under President George W. Bush who has overseen thousands of prosecutions, and a police chief with three decades of experience, we have dedicated our lives to the safety of this country.

We can firmly say that sentencing reform done right will not harm public safety. In fact, it will enhance it. We were some of the original supporters of the 1990s “tough on crime” laws. After decades of enforcing them, we and our colleagues — police chiefs and U.S. attorneys — now recognize many provisions, like overly harsh sentencing, went too far.

Much has been learned in the last 25 years about who should be locked up and for how long. The Sentencing Reform and Corrections Act recalibrates sentencing policy to meet the needs of the 21st century. Lowering mandatory minimum sentences for low-level crimes will reduce unnecessary incarceration. This will allow us to better direct law enforcement resources to arresting, prosecuting, and punishing the most serious and violent criminals.

That’s why we and 130 of our law enforcement colleagues wrote to congressional leadership urging them to pass the act. Those standing with us include two former U.S. attorneys general, two directors of the FBI, 21 sitting police chiefs and 68 former U.S. attorneys.

Our message to Republican leadership is clear: Law enforcement asks you to pass this bill. Targeted and appropriate sentencing is a superior approach to controlling crime....

The Sentencing Reform and Corrections Act offers a better path forward. It would reduce mandatory minimum sentences for repeat nonviolent drug offenders. And it would allow judges more discretion to depart from mandatory minimums for low-level offenders if — after hearing specific circumstances of the crime — they feel it is appropriate.

Contrary to what opponents have claimed, the Sentencing Reform and Corrections Act will not swing open the prison doors and release thousands of hardcore violent criminals onto the streets. Every single prisoner eligible for early release will be carefully scrutinized by judges. And only if the judges feel it’s appropriate will they release them. This judicial check ensures the worst criminals will remain where they belong — in prison — while those who pose little threat can get off the taxpayers’ tab and begin productively contributing to society.

The bill would also expand the use of mandatory minimums for offenders with previous convictions for violent crimes, and it creates new mandatory minimums for terrorism-related crimes, giving federal law enforcement additional mechanisms to keep those most dangerous behind bars.

Now is the time for Congress to act. Reducing the population of our overcrowded prisons is one of the few goals on which those on the left and right agree. We want to make it clear where law enforcement stands: Not only is passing federal legislation to reform mandatory minimum sentences necessary to reduce incarceration, it will also help us keep crime at its historic low.

Some recent prior related posts on SRCA:

March 1, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Monday, February 29, 2016

Highlighting the enduring lack of transparency about pleas and the work of prosecutors ... and the problems this may create

The folks at The Crime Report continue to do a lot of notable reporting about a lot of the notable issues discussed at the recent Harry Frank Guggenheim Symposium on Crime in America at John Jay College of Criminal Justice.  This recent piece, headlined "A 'Draconian' System Where the Innocent Plead Guilty," reports on a keynote speech by Judge Jed Rakoff and discussion of the need to bring more light to the dark spaces of plea bargaining and prosecutorial practices. I recommend the piece in full, and here are some excerpts:

The U.S. criminal justice system is broken and needs to be fixed is a message you rarely hear from a well-respected senior federal judge. But that’s exactly what Judge Jed Rakoff of the Southern District of New York detailed during a keynote address at the 11th Annual Harry Frank Guggenheim Symposium on Crime in America at John Jay College of Criminal Justice on Friday

“We created this monster and it’s taken on a life of its own,” said Rakoff, speaking critically of judges who everyday impose “terrible sentences” and send people to prison for extremely long periods of time without questioning the system....

Rakoff detailed how he’s seen the system change in the past few decades, from a time where a much higher percentage of court cases went to trial (15 percent of court cases at the federal level 20 percent at the state level) to now where, after tough-on-crime laws swept the nation, only 3 percent of federal cases, and 5 to 6 percent of state cases, go to trial.  The rest are settled with plea bargains.  He called the plea bargaining process a “system of totally secret justice” where prosecutors, hold all the cards and are able to get a vast majority of defendants to plead guilty to charges when faced with extremely long sentences — imposed through sentencing guidelines or mandatory minimums.

Julie Seaman, a professor at the Emory University School of Law and Board President of the Georgia Innocence Project, said it’s now a system where “it’s completely rational for an innocent person to plead guilty,” because there is so much risk involved in going to trial.

The panel — also featuring Keir Bradford-Gray of the Philadelphia Defender Association, Matthew Johnson of John Jay College, exoneree Rodney Roberts and moderated by John Hollway, executive director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School — detailed problems of this “assembly-line” style form of justice where police are under pressure to solve cases quickly, prosecutors are under pressure to clear cases and public defenders are overworked and under resourced.

And it’s all done behind closed doors, they say, away from public scrutiny.  “This is a system, because it’s so totally un-transparent, is it inevitably going to lead to some serious mistakes,” Rakoff said.

There has arguably never been more data and more transparency in the U.S. criminal justice system than there is now.  Researchers, journalists, politicians and the public have more access to data on prison and jail populations, as well as crime statistics including the number of reported crimes and arrests.  That data has played a large part in changing peoples’ minds about mass incarceration — and arguably without that data, you wouldn’t see elected officials of both parties rolling back sentencing laws. But data doesn’t exist for plea deals, which is where the decisions that dramatically impact millions of lives are made.  There is a plethora of information available to the public on how offenders enter the system and where they end up, but missing is information on what happens in the middle.

Rakoff says this is a problem that has fueled mass incarceration – and also because when innocent people decide to plead guilty in order to avoid long sentences, we never know the truth. He said there is too much disparity in pleas that are offered and we don’t know enough about what goes on behind closed doors. “No one ever knows what the truth is, no one ever knows what the facts are,” Rakoff said.

February 29, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Friday, February 26, 2016

"Internalizing Private Prison Externalities: Let's Start with the GED"

The title of this post is the title of this interesting and timely new piece by David Siegel recently posted on SSRN. Here is the abstract:

Prison education is a remarkably good investment for society, yet an increasing proportion of inmates have no access to it because the operators of the prisons in which they are held have a powerful incentive not to provide it: they make more money that way.  Critics and analysts of private prison operators have suggested various incentive structures to improve their performance, but most jurisdictions focus on the operator’s cost to the contracting entity. The social costs imposed by foregoing prison education are not part of the arrangement between a private prison operator and a jurisdiction with which it contracts.  Although these costs are real and substantial to the inmates who bear them, because the inmates are not parties to the contract, these costs are externalities.

Imposing these social costs on prison operators could improve the conditions for inmates in their custody and is very likely to improve these inmates’ success after release. Unlike more complex strategies for imposing incentives on correctional programs to reduce recidivism, prison education is a known, straightforward rehabilitative strategy whose provision can be measured quite easily at the point of release.  There is even a well-accepted metric for prison education administered by an independent third party: the General Educational Development Test (GED).  This article proposes using the GED to internalize the cost of reduced or poor inmate education by imposing financial penalties on private prison operators whose inmates do not obtain, or make progress toward, a GED during their incarceration. This would provide the social benefits of inmate education, alter private prison operators’ behavior at minimal administrative cost, and most importantly, benefit inmates being released.

February 26, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Wednesday, February 24, 2016

"Judging Federal White-Collar Fraud Sentencing: An Empirical Study Revealing the Need for Further Reform"

The title of this post is the title of this notable new paper now available via SSRN authored by Mark Bennett, Justin Levinson and Koichi Hioki.  Here is the abstract:

White-collar federal fraud sentencing has long been fraught with controversy and criticism. As a result, the U.S. Sentencing Commission’s intensive multi-year examination of sentencing for fraud crimes generated tremendous interest among the Department of Justice, criminal defense organizations, the academy, and a wide-range of advocacy groups.  In November 2015, the Commission’s publicly announced proposed amendments became law without Congressional change.  These amendments, while commendable in process and purpose, fall short of sorely needed reforms that would serve to realign white-collar fraud punishments with legitimate penal justifications.  This Article portrays the recent historical tension between the Federal Sentencing Commission and federal judges, and presents the results of an original empirical study that demonstrates clearly the continuing need for significant reforms.

The Article begins by framing the problem of fraud sentencing within modern criminal law, and examines the statistical reality of economic crime sentencing since the 1980s, which has been increasingly characterized by downward departures from harsh recommend minimum sentences.  It then details an original empirical study we conducted on 240 sitting federal and state judges, just as the new sentencing guideline amendments were passing untouched through Congress.  This study presented judges with a realistic pre-sentence report for a multimillion-dollar economic crime, and asked judges to sentence the defendant.  We found that a remarkable 75% of federal district court judges sentenced the defendant to the precise minimum sentence of a possible seven year range.  The study further compared the judges’ sentences across judicial cohorts and evaluated the role of judges’ individual sentencing philosophies, age, religion, and the political party of the appointing president.  Despite a range of interesting differences in sentencing philosophy and self-reported attitudes found based on these factors, federal judges’ overwhelming agreement regarding minimum sentencing largely transcended their other differences.

The Article considers the results of the study in the context of the revised guidelines as well as scholarly reform suggestions, and offers five specific proposals to reform the guidelines, beginning with significant cuts to the so-called “loss table” as well as the specific offense characteristics that frequently lead to near-nonsensical sentencing guidelines.

February 24, 2016 in Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

What does (closet libertarian?) GOP front-runner Donald Trump now really think about the drug war and criminal justice reform and Prez clemency?

Based on his personal and professional history, as well as a number of his prior positions on a range of social and economic issues, I have long assumed the essential political views and commitments of Donald Trump to be what might be called "pragmatic libertarianism."  I say that in part because most successful private businessmen in the United States, in addition to being generally pragmatic, tend to have at least some hint of a libertarian streak on at least some issues (e.g., think of the Koch brothers or Peter Lewis).  More to the point, as I have flagged in prior posts here and  on my marijuana reform blog, Donald Trump once embraced the libertarian view that full legalization would be the only way to "win" the drug war.

But, of course, Donald Trump the Presidential candidate has sounded far more authoritarian than libertarian on the campaign trail, especially with respect to domestic issues.  He conveniently says that he has now changed his mind about abortion and thus now is pro-life rather than pro-choice.  He also has expressed in vaious ways disaffinity for marijuana legalization (though his position seems to get more and more nuanced as time goes on, as highlighted in posts here and here from my marijuana reform blog).  Then again, to the extent a single idea summarizes Trump's modern politics, it would seem to be "anti-establishment"; I think it is accurate to describe The Establishment, on both the left and the right, to be quite statist and generally anti-libertarian.  

I say all this not to claim that Donald Trump is the most libertarian candidate still with a serious chance to become President (although this might be true).  Rather, I say it in order to try to figure out whether, when and how the candidate now seemingly most likely to represent the GOP on the national stage for the bulk of 2016 will articulate his latest thinking about federal criminal justice issues ranging from statutory sentencing reform of mandatory minimum sentences for drug offenders to federal responses to state marijuana legalization to the robust use of federal clemency powers.  

Obviously, how the last five or six US presidents have approached these federal criminal justice issues, both politically and practically, has had a huge impact on the nature and reach of our nation's federal and state criminal justice systems.   Before I can even figure out whether I should be terrified by the prospect of a President Trump, I really am eager to hear more about his current thoughts on these important criminal justice fronts.  Critically, not only would Trump's discussion now of these issues help me better understand long-term what would a President Trump might actually do, I think they could have a big short-term impact on the work of the current Congress and the current President (and even the current Supreme Court) in these areas.

With apologies for my (silly?) Prez Trump musings in the wake of his latest "yuge" win in Nevada, I am eager to hear lots of thought from lots on readers on this political and legal front.

February 24, 2016 in Clemency and Pardons, Federal Sentencing Guidelines, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9)

Vera Institute of Justice launches "The Human Toll of Jail"

6a00d83451574769e201bb08323a26970dI received an email this morning announcing the launch of a notable new project by The Vera Institute of Justice. Here is the heart of the email (with a few links) detailing what the project is all about:

The Human Toll of Jail [is] a national storytelling project about the uses and abuses of jails in the United States, supported by the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge.

The Human Toll of Jail uses poignant essays, videos, comics, and photojournalism to tell the stories of Americans who have been caught up in local justice systems as well as highlight unexpected voices for reform from the frontlines — including judges, prosecutors, healthcare providers, and others.  Along with every story featured here, the project offers additional resources with research, policy analyses, and best practices that address the larger questions and issues around local jails.  Stories in the project include:

  • INSIDE THE MASSIVE JAIL THAT DOUBLES AS CHICAGO’S LARGEST MENTAL HEALTH FACILITY — Since drastic budget cuts left thousands of Chicagoans without access to reliable mental health care, all too many are getting their only real treatment when they land behind bars.

  • RETURN TO RIKERS — After two decades of incarceration, Patrick went back to Rikers Island for the first time in 20 years — to visit his son.  His story is told here as comics journalism.

  • THE JAIL WITHOUT BARS — At one Idaho correctional facility, an innovative approach is built on a commitment to the site’s workers and an investment in the inmates’ success.  The result is a jail that looks nothing like the ones you’ve seen on TV.

  • A NEW APPROACH TO PROSECUTION — Local prosecutors across the country wield enormous power to make decisions that affect the flow of people in and out of often-overcrowded jails. With that power in mind, the district attorney in one California county wants to upend the way we think about his job responsibilities.

  • JUDGING WITHOUT JAIL — Many states have made moves to end the fruitless cycle of arrest and incarceration by moving nonviolent defendants out of prosecution and into more productive intervention programs. One New Orleans judge has seen just how effective this approach can be.

February 24, 2016 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, February 23, 2016

Former UN Secretary-General Kofi Annan explains "Why It's Time to Legalize Drugs"

This new Huffington Post commentary, titled "Why It's Time to Legalize Drugs," is authored by Kofi Annan, who served as Secretary-General of the United Nations from 1997 to 2006. Here is part of his pitch:

Nowhere is [the] divorce between rhetoric and reality more evident than in the formulation of global drug policies, where too often emotions and ideology rather than evidence have prevailed.

Take the case of the medical use of cannabis. By looking carefully at the evidence from the United States, we now know that legalizing the use of cannabis for medical purposes has not, as opponents argued, led to an increase in its use by teenagers. By contrast, there has been a near tripling of American deaths from heroin overdoses between 2010 and 2013, even though the law and its severe punishments remain unchanged.

This year, between April 19 and 21, the United Nations General Assembly will hold a special session on drugs and the world will have a chance to change course. As we approach that event, we need to ask ourselves if we are on the right policy path. More specifically, how do we deal with what the United Nations Office on Drugs and Crime has called the "unintended consequences" of the policies of the last 50 years, which have helped, among other things, to create a vast, international criminal market in drugs that fuels violence, corruption and instability? Just think of the 16,000 murders in Mexico in 2013, many of which are directly linked to drug trafficking.

Globally, the "war on drugs" has not succeeded. Some estimate that enforcing global prohibition costs at least $100 billion (€90.7 billion) a year, but as many as 300 million people now use drugs worldwide, contributing to a global illicit market with a turnover of $330 billion a year, one of the largest commodity markets in the world.

Prohibition has had little impact on the supply of or demand for drugs. When law enforcement succeeds in one area, drug production simply moves to another region or country, drug trafficking moves to another route and drug users switch to a different drug. Nor has prohibition significantly reduced use. Studies have consistently failed to establish the existence of a link between the harshness of a country's drug laws and its levels of drug use. The widespread criminalization and punishment of people who use drugs, the over-crowded prisons, mean that the war on drugs is, to a significant degree, a war on drug users -- a war on people.

Africa is sadly an example of these problems. The West Africa Commission on Drugs, which my foundation convened, reported last year that the region has now become not only a major transit point between producers in Latin America and consumers in Europe, but an area where consumption is increasing. Drug money, and the criminality associated with it, is fostering corruption and violence. The stability of countries and the region as a whole is under threat.

I believe that drugs have destroyed many lives, but wrong government policies have destroyed many more. We all want to protect our families from the potential harm of drugs. But if our children do develop a drug problem, surely we will want them cared for as patients in need of treatment and not branded as criminals.

February 23, 2016 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (4)

Latest notable comments by Attorney General Lynch about sentencing reform developments

ImagesVia email alert,I received notice that AG Loretta Lynch is giving this lengthy speech today in DC at the at the National Association of Attorneys General Annual Winter Conference. The speech covers a lot of federal and state criminal justice issues, and this section concerning sentencing policies and reform seemed worth spotlighting here:

Through the Smart on Crime initiative — launched by my predecessor, Eric Holder, in 2013 — we’re directing our prosecutorial resources at the most serious crimes, while investing in diversion and treatment programs like drug courts and veteran’s courts.  And we’re placing a renewed focus on rehabilitation and reentry in order to reduce recidivism, promote public safety and ensure that formerly incarcerated individuals can return to their communities as productive citizens with a meaningful new chance at a better life.

As we all know, improving rehabilitation programs and reentry outcomes doesn’t just help formerly incarcerated individuals; it’s also good for our communities as a whole.  More than 600,000 people are released from federal, state and local prisons every year and their ability to stay on the right path and stay out of the criminal justice system has a tremendous impact on the safety of our neighborhoods and the strength of our nation.  That’s why the Federal Interagency Reentry Council, which I am proud to chair, has brought together more than 20 federal agencies to curb recidivism and foster better prospects for employment, education, housing, healthcare and child welfare.  It’s why the Department of Justice is forging partnerships with the Departments of Education, Labor, Housing and Urban Development and others to boost opportunities for formerly incarcerated individuals and eliminate unnecessary collateral consequences of incarceration.  And it’s why our Office of Justice Programs has offered nearly 750 Second Chance Act grants since 2009, totaling more than $400 million to support reentry efforts in 49 states.

Beyond these and other efforts at the Department of Justice, we are working with Congress to support meaningful legislation that combines front-end sentencing reforms and back-end corrections reforms.  Over the past several months, we’ve seen important progress: sentencing and corrections legislation has been reported out of both the House and Senate Judiciary Committees and both Democrats and Republicans in the House and Senate have spoken out about the pressing need for reform.  The Department of Justice will continue to support federal sentencing laws that reduce the overreliance on mandatory-minimum sentences and improve federal probation and supervised-release programs.

Of course, the Department of Justice and the Obama Administration cannot do this work alone.  As the chief law enforcement officers of this country’s states and territories, you have the ability to bring about much-needed change. Over the past several years, many of you have led the way in helping enact justice system reforms in your own jurisdictions.  This Administration has supported your work through efforts like the Justice Reinvestment Initiative (JRI), which helps states identify the drivers of rising corrections costs and develop solutions to reduce spending and increase public safety.  JRI is currently active in 24 states and the experiences of states like Georgia and North Carolina demonstrate that JRI-involved states can both achieve significant reform — including reductions to incarceration rates — and produce savings while simultaneously enhancing public safety.  Since 2011, Georgia’s prison population has dropped by 8 percent, instead of growing by 8 percent as projected, saving funds and reducing crowding.  North Carolina’s prison population has decreased by almost 3,400 people since 2011 and the state has used savings from the closure of 10 prisons to add 175 probation and parole officers and to invest in intervention and treatment programs.  At the same time, North Carolina’s crime rate has plunged 11 percent.

We will continue to support programs like JRI — and additional efforts that seek to make our criminal justice system more efficient, more effective and more fair across the board.  In fact, President Obama’s budget for this coming fiscal year would invest $500 million in states’ comprehensive criminal justice reform efforts as part of the “21st Century Justice Initiative” — supporting a range of projects, from improving policing, to reducing unnecessary incarceration, to bolstering re-entry services.  This is an exciting and groundbreaking initiative and I am hopeful that Congress will move forward in support of its goals.

February 23, 2016 in Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Monday, February 22, 2016

Because Michigan lacks the death penalty, can and should feds consider capital charges against admitted Uber mass murderer?

This new AP article, headlined "Uber driver admits to fatal Michigan rampage," prompts the question in the title of this post now that it seems there were be no questions about guilt in the latest horrific mass shooting.  Here are the disturbing particulars:

The Uber driver suspected in a series of three random shootings in Michigan admitted carrying out the seemingly random attacks that killed six people, a prosecutor said Monday. Jason Dalton waived his right against self-incrimination before making the statement to authorities, Kalamazoo County prosecutor Jeff Getting said.

Dalton's statements to police were used to file charges of murder and attempted murder Monday, two days after the shootings in the Kalamazoo area.  Dalton appeared briefly in court to hear the charges. He was ordered held without bond and will get a court-appointed attorney.

The shootings occurred in a restaurant parking lot, outside an apartment building and at a car lot. Two victims remain hospitalized.

Meanwhile, an Uber passenger said he called police to report that Dalton was driving erratically more than an hour before the shooting rampage began.

Matt Mellen told Kalamazoo television station WWMT that he hailed a ride around 4:30 p.m. Saturday. He said driver Jason Dalton introduced himself as "Me-Me" and had a dog in the backseat.... "I'm upset because I tried contacting Uber after I had talked to the police, saying that we needed to get this guy off the road," Mellen said....

Kalamazoo County Sheriff Richard Fuller said Uber is cooperating with law enforcement officials, and he believes the company will "help us fill in some timeline gaps." Investigators are particularly interested in communication between Dalton and Uber, as well as customers he might have driven, the sheriff said.

Questions about motive and Dalton's frame of mind are "going to be the hardest to answer for anybody," Fuller said.  He expects some answers to emerge in court, but he doubts they will be satisfying. "In the end, I ask people, because I keep hearing this question of why, 'What would be the answer that would be an acceptable answer for you?' They have to think about it for a moment, and they say, 'Probably nothing.' I have to say, 'You are probably correct.'  I can't imagine what the answer would be that would let us go, 'OK, we understand now.' Because we are not going to understand."

If Dalton is convicted, the murder charges carry a mandatory life sentence.  Michigan does not have the death penalty.

Authorities allege that he shot the first victim outside of an apartment complex and that he shot seven others over the next several hours.  Police have not provided a motive. The victims had no apparent connection to the gunman or to each other.

The attacks began early Saturday evening outside the Meadows apartment complex on the eastern edge of Kalamazoo County, where a woman was shot multiple times. A little more than four hours later and 15 miles away, a father and his 17-year-old son were fatally shot while looking at cars at a car dealership.  Fifteen minutes after that, five people were gunned down in the parking lot of a Cracker Barrel restaurant.  Four of them died....

A man who knows Dalton said he was a married father of two who never showed any signs of violence.  Gary Pardo Jr., whose parents live across the street from Dalton in Kalamazoo Township, described him as a family man who seemed fixated on cars and often worked on them.

I do not know enough about federal jurisdiction in capital cases to feel entirely confident that the feds would have a sure-fire jurisdictional basis to take over the prosecution of Jason Dalton.  But if one looks at the crimes that have landed some others on federal death row (listed here thanks to DPIC), most involve many fewer murders than Dalton committed.  And the fact that Dalton was apparently "on the job" for a notable national (internet?) company when he randomly slaughtered six innocent people and critically wounded two others.

February 22, 2016 in Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Highlighting that, despite lots of talk and a little action, Prez Obama remains a clemency grinch

Over at his blog Pardon Power, political scientist PS Ruckman does a terrific job tracking and placing in historical context the latest date concerning the use of presidential clemency powers.  And these three recent posts highlight effectively that, despite lots of talk from the Obama Administration about a big clemency initiative, the current President the most notable story to date concerning Obama's clemency record is how stingy it is:

As long-time readers know, I have been urging Prez Obama to live up to his hope and change rhetoric in this arena since the day he was inaugurated seven year ago, as highlighted by these two posts from January 20, 2009: Inaugural rhetoric about freedom and liberty in prison nation and Is it too early to start demanding President Obama use his clemency power?.  (The extensive comments to the second of these posts are especially interesting to review with the benefit of seven years of political hindsight.)  In addition, way back in 2010, I authored this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders," which closed with this recommendation:

President Obama ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, my vision and goals here are meant to be fairly basic.  The idea is for President Obama to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency.  Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice.

The Clemency Commission could and should study the modem causes of wrongful conviction, "excessive" sentences, and overzealous prosecutions, and then make formal and public recommendations to the President and other branches about specific cases that might merit clemency relief or systemic reforms that could reduce the risk of miscarriages of justice.  In addition, the Commission could be a clearinghouse for historical and current data on the operation of executive clemency powers in state and federal systems.  It could also serve as a valuable resource for offenders and their families and friends seeking information about who might be a good candidate for receiving clemency relief. Though the creation of a Clemency Commission would be an ambitious endeavor, the effort could pay long-term dividends for both the reality and the perception of justice and fairness in our nation's criminal justice system.

I have reprinted this suggestion here because, though I made the pitch in print more than half a decade ago, it still strikes me as timely and relevant to the on-going discussions about federal criminal justice reform.  Indeed, given this latest data marshalled by PS Ruckman and the seemingly limited success and limited basis for optimism as of February 2016 surrounding "Clemency Project 2014," I think Prez Obama and the rest of the federal criminal justice reform discussion might benefit now more than ever from the creation of some form of a "Clemency Commission" headed by a "clemency czar."  And, especially with US District Judge John Gleeson now only a few weeks away from stepping off the federal bench, there is an obvious candidate for the ideal first clemency czar.

As regular readers (and my students know), I could go on and on and on about this subject and especially about President Obama's unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena.  But rather than repeat myself, I will just link to just a few of my prior Obama-era posts while starting to wonder in the wake of recent election results whether President Hillary Clinton or President Donald Trump might have the interest and ability to really bring hope and change to a very sorry modern federal clemency history.

Just a few of many recent and older posts concerning the modern ugly realities of federal clemency:

February 22, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Sunday, February 21, 2016

"Equity, Not Mercy"

The title of this post is the title of this notable paper by Mary Sigler just posted to SSRN. Here is the abstract:

In a variety of criminal justice settings, the term mercy is used broadly to refer to almost any instance of remitting the harshness of punishment.  Although unobjectionable as a colloquial matter, this indiscriminate usage is conceptually problematic.  Mercy understood in this broad sense distorts at least two concepts that are essential to our moral life. Specifically, the broad use of mercy denies us the conceptual resources to assess the distinctive operation of traditional mercy — an act of grace that cancels or mitigates what is due out of compassion or concern for the recipient.  Perhaps more important, broad mercy effectively diminishes the concept of justice, alleviating the pressure it would otherwise exert to redress claims of right.

I first consider the concept of mercy in both its traditional and broad senses.  I then turn to equity as an alternative. Equity, like mercy, operates within the realm of discretion; but unlike mercy, equity aims at justice.  In the legal context, equitable judgment represents a form of guided discretion in which decision making is both searchingly particular and constrained by authoritative standards of justice.  A careful analysis of the concept of discretion underscores both the promise and pitfalls of the discretion with which we empower actors in the criminal justice process. Equity, not mercy, should structure their deliberations.

February 21, 2016 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Saturday, February 20, 2016

"Criminal Justice and (a) Catholic Conscience"

The title of this post is the title of this intriguing new article authored by Leo E. Strine Jr., the current Chief Justice of the Delaware Supreme Court, and now available via SSRN. Here is the abstract:

This article is one person's reflections on how an important influence on his own sense of moral values — Jesus Christ — affects his thinking about his own approach to his role as a public official in a secular society, using the vital topic of criminal justice as a focal point.  This article draws several important lessons from Christ's teachings about the concept of the other that are relevant to issues of criminal justice.

Using Catholicism as a framework, this article addresses, among other things, capital punishment and denying the opportunity for redemption; the problem of racial disparities in the criminal justice system; the problem of over-incarceration of poor defendants through the use of money bail; the problem of ever increasing mandatory minimums and a sprawling criminal code; and the need to improve the relationship between and the effectiveness of police in protecting communities of color.  Finally, the article reminds us that Christ requires compassion and respect for all, and that any reasoned discussion of criminal justice must accord respect, empathy, and compassion to those victimized by crime, and those who do the tough job of law enforcement and corrections.

February 20, 2016 in Purposes of Punishment and Sentencing, Religion | Permalink | Comments (1)

Friday, February 19, 2016

Making the case for criminal justice "frugality"

The quoted portion of the title of this post is from the last line of this new USA Today commentary authored by criminologist James Alan Fox and sociologist Richard Moran.  The commentary is given the headline "that "Soft on crime turns out to be smart on crime," but I am not sure that really captures what the commentary is trying to say.  Here are excerpts so readers can judge for themself:

The shame of wrongful conviction has captured the public's imagination.... Many of the hundreds who have been exonerated and released from prison in the past several decades were prosecuted during a period of high crime rates and unprecedented fear.  At a time when a no-nonsense, "lock 'em up" criminal justice policy carried the day, the nation largely turned a blind eye to injustices.  We were far more intent on ensuring public safety than protecting the rights of the accused.  Meanwhile, a booming economy afforded close to a ten-fold expansion in state and federal prison populations.

Times have changed.  Crime rates are at a 50-year low, and, in part due to runaway correctional expenditures, a majority of states are struggling to balance their budgets.  This dire financial situation has forced politicians to seek out cost-saving measures, and the low crime rate has allowed them to do so without much public opposition.

The focus on innocence and exoneration actually reflects a much broader rethinking of our criminal justice policies in the context of low crime and limited resources.  When crime rates were rising, the cops were handed a mandate to do whatever it took to arrest criminals.  Now the police are being held accountable like never before. We are questioning their use of deadly force, and equipping them with body cameras to monitor their every move.

Similarly, the 1990s panic over youth and gang violence had us characterizing juvenile offenders as "superpredators" who were beyond redemption.  The popular slogan "adult time for adult crime" echoed a "get-tough" approach for punishing kids.  Recently, however, the U.S. Supreme Court abolished mandatory life sentences for minors.  And policy makers have recommitted to the original philosophy of juvenile justice, prioritizing the needs of young offenders rather than what punishment is deserved.

The 1990s also saw the rapid spread of a penal policy patterned after a well-known baseball refrain — "three strikes and you're out."  This metaphorical approach to sentencing felons helped nearly bankrupt many states, especially California where "three strikes" was most enthusiastically adopted.

Thousands upon thousands of Americans were taken prisoner in the "War on Drugs" declared in the early 1970s when crime rates soared.  Having surrendered this misguided campaign, the nation is now looking more toward treatment for addicts than punishment, and releasing nonviolent drug offenders from prison.

Many, if not all, of the recent shifts in philosophy reflect the fact that we simply can't afford to keep millions of Americans locked behind bars.  Mass incarceration may have contributed marginally to bringing down the crime rate, but it was hardly a cost-effective strategy.  Rehabilitation, despite its limitations, is significantly cheaper and far more attractive to cost-conscious lawmakers and their constituents.

For several decades, ever since Richard Nixon won the White House on a "law and order" platform, the predominant response to crime was decidedly punitive.  Today's proposed criminal justice reforms — from deincarceration to exoneration — would have been condemned as soft on crime.  Whether they will prove to be smart on crime, as reformers have promised, one thing is for sure: They are frugal, and frugality is definitely in fashion these days.

February 19, 2016 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, February 18, 2016

Compassionate release consensus and dissensus at US Sentencing Commission public hearing

As detailed in this press report, headlined "Prison-Release Program Debated in Hearing," there were both common and diverse perspectives at the US Sentencing Commission hearing yesterday concerning the federal system's approach to compassionate release:

The compassionate release system for federal prisons is "broken," a series of government witnesses, advocates and stakeholders told the U.S. Sentencing Commission at a public hearing Wednesday.  But while the panels of witnesses generally agreed the program is in need of a fix, they proposed starkly different solutions and laid the blame at the feet of a number of different organizations and agencies.

The compassionate release program is meant to release elderly inmates, those with terminal illnesses and others who meet certain conditions, though as the witnesses at Wednesday's hearing said, the program does not necessarily cover all of the inmates in federal prison it is meant to.

Wednesday's public hearing in a small conference room in the Thurgood Marshall Federal Judiciary Building in downtown Washington, D.C., was meant to evaluate a proposed set of changes to the compassionate release program, including lowering the age at which an inmate can be considered for release, reducing the amount of their prison term they must serve before qualifying for release, and adding more circumstances that would allow an inmate to go free early.  

The current program allows the director of the Bureau of Prisons (BOP) to motion for the early release of inmates deemed not a danger to their communities who are least 70 years old and have served at least 30 years of their sentence, or those who have "extraordinary and compelling reasons."  Under the current rule "extraordinary and compelling reasons" are limited to debilitating or terminal physical or mental illnesses or a death in the inmate's family that would leave a minor without care.

The proposed amendment to the program expands these circumstances further and would allow the BOP director to motion for the release of a prisoner who is 65 or older and has served at least 10 years or 75 percent of their sentence, regardless of their medical condition.  

The 10 year requirement drew some criticism from the witnesses, especially Michael Horowitz, inspector general for the U.S. Department of Justice, who suggested the 10-year requirement might have unintended consequences.  Horowitz estimated the requirement that inmates serve at least 10 years of their sentence before being considered for compassionate release cuts out half of the inmates who could benefit from the program.  This includes elderly inmates sentenced to relatively short times in prison, who are arguably the safest prisoners to release into the community, Horowitz said.

The commission seemed to agree with Horowitz and his suggestion to simply eliminate the 10-year requirement and keep the guidelines requiring inmates serve at least 75 percent of their given sentences.  "Where's the science behind the 10 years?" Judge Charles Breyer, vice chair of the commission, asked.  "I don't see it, I'm unaware of it, but is there something that the Justice Department or the Bureau of Prisons have figured out that 10 years?  Because it looks to me that all they're saying is we want to make sure that somebody receives an adequate punishment."

The involvement of the BOP director was another point of contention at Wednesday's hearing, as witnesses offered competing views of who should be in the driver's seat of the compassionate release program.  Jonathan Wroblewski, principal deputy assistant attorney general for the Justice Department, told the six-member sentencing commission that the BOP is in charge of the compassionate release program, and suggested the commission and courts take on an advisory role....

Margaret Love, a non-voting member of the Practitioners Advisory Group, stood in stark contrast to Wroblewski's executive-centric policy proposal, arguing that Congress intended the U.S. Sentencing Commission to lead the program, with the courts taking a major role and the BOP being relegated to the "gate-keeping" role of applying the guidelines to specific cases....  She urged the commission to develop a clear policy to lead the BOP and suggested an addition to the proposed amendment that would require the BOP director to make a motion for release of an inmate under the compassionate release program if they meet all qualifications, instead of the voluntary system in place now.

This agenda from the USSC hearing yesterday now has links to all the witnesses' written testimony.

February 18, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, February 17, 2016

Is federal bail reform key to making a serious dent in mass incarceration?

The question in the title of this post is prompted by this notable This Week commentary by Ryan Cooper, headlined "President Bernie Sanders couldn't stop mass incarceration by himself. But this one reform would be a very good start."  Here are excerpts (with a few links from the original):

[Many have] badly understated the extent to which federal policy affects incarceration outside of federal prisons — particularly jails.  It's a great opportunity for Sanders to clarify his message [about reducing incarceration] and seize on bail reform — a vastly overlooked part of the mass incarceration problem.  While it probably wouldn't move the U.S. from the top spot by itself, bail reform could make an enormous difference....

First, federal crime policy exerts a strong gravitational pull on state behavior.  Federal sentencing guidelines heavily influenced the state versions; state-level lawyers, judges, and policymakers tend to look to the higher-status federal system for cues and ideas, and there is much back-and-forth staff movement.  Hence, if the federal criminal justice system were to make a sharp turn against harsh punishments, it's virtually certain that would percolate through some if not most of the state systems and thus reduce the prison population over time.  Federal leadership matters here.

This effect also holds for bail policy, which is the primary determinant of the size of the jail population. As I covered extensively last year, about 62 percent of the people in jail are legally innocent.  A major reason why is the Bail Reform Act of 1984, which made it dramatically easier to keep people locked up before federal trials; most of the states followed suit.  Today, roughly two-thirds of the people in jail are there either because they are too poor to make bail, or because they've just been arrested and will make bail in the next few days.  Over the last 15 years, fully 99 percent of the growth in the jail population is due to increased incarceration of the legally innocent.

This is a human rights atrocity for many reasons, but perhaps the biggest one is that the first 48 hours or so in jail is extremely traumatic for people with no experience in the prison system. It's why the suicide rate in jails is 2.5 times greater than in actual prisons — witness Sandra Bland, an ordinary middle-class person who apparently committed suicide very soon after being thrown in jail.

Now, it would be unconstitutional for Congress to simply force states to change the way they do bail.  But there are four less direct avenues to pursue: First, pursue reform for federal prisoners, to take advantage of the percolation effect mentioned above.  Second, put conditions on the many grants the feds dole out for the states' criminal justice systems, requiring bail reform as a condition of getting the money. Third, pass a law declaring current use of money bail a violation of the 14th Amendment's due process protection, which Congress has power to protect.  Fourth, there is a very strong case that current bail policy is a violation of the 8th Amendment, so the Department of Justice could pursue a lawsuit and attempt to get a Supreme Court ruling allowing the feds to step in.  The last two of these are a bit of a long shot, but taken together this would be a powerful package.

But what would bail reform look like? There are two basic principles: First, work to make sure arrestees are processed as fast as possible — ideally within 24 hours, as many jurisdictions are moving towards.  Second, very sharply reduce the use of money bail. If used, it should never be beyond a person's ability to pay.  No person should ever rot in jail waiting for a trial because he can't scrounge up the cash to make bail — poverty should not be a crime.  Besides, research from the Vera Institute of Justice shows that bail is largely worthless for making sure that accused criminals show up to trial.  In most cases, it simply isn't needed — basic pretrial supervision works much better.

There is tremendous churn in and out of the jail system — 11.4 million people were admitted in 2014.  Bail reform would thus be more about diverting the flow of prisoners rather than releasing lots of long-term ones. A new federal law mandating speedy processing of arrestees, and sharply restricting the use of money-bail, would erode the jail population from two directions at once.  It could be combined with incentives to use alternatives to arrest, like citation-and-release or pre-booking diversion, to further slow the rate of jail entry.  At a very rough guess, such a reform done well could knock about a third — perhaps 200,000 people — off the jail population.

At any rate, even very aggressive bail reform wouldn't get us to the Chinese figure of 1.66 million prisoners quoted above, and it would require congressional action.  But bail reform would be a gigantic step in the right direction. When it comes to fighting mass incarceration, it's the easiest and most obvious first step.

February 17, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Friday, February 12, 2016

"A Republican Crime Proposal That Democrats Should Back"

The title of this post is the headline of this New York Times op-ed authored by Gideon Yaffe discussing federal mens rea reform.  Here are excerpts:

These days, it’s practically unheard-of for those on the left to embrace ideas promoted by the likes of the Koch brothers and the conservative Heritage Foundation. But it would be a shame if partisan distrust kept Democrats from supporting a proposal favored by the right: a measure that would bolster the idea that a criminal conviction should require proof of what lawyers call “mens rea” — literally, a guilty mind.  That’s because it can be harnessed to aid some of those who are especially ill treated by the criminal justice system: the poor and racial minorities.

As a legal principle, mens rea means that causing harm should not be enough to constitute a crime; knowingly causing harm should be.  Walking away from the baggage carousel with a suitcase you mistook for your own isn’t theft; it’s theft only if you knew you didn’t own it.  Ordinary citizens may assume that this common-sense requirement is already the law of the land.  And indeed law students are taught that prosecutors must prove not just that a defendant did something bad, but also that his frame of mind made him culpable when he did it.  But over the years, exceptions to the principle have become common because mens rea requirements have not been consistently detailed in laws....

Congress is now considering a measure sponsored by Representative James Sensenbrenner, Republican of Wisconsin, that would require that mens rea be proven in many more cases. For instance, a law making it a crime to mislabel drugs would automatically be interpreted as criminalizing knowing mislabeling.  The measure would not affect statutes that make clear that no mental state need be shown for guilt — for example, laws criminalizing sex with minors.

The provision is part of a sweeping criminal justice bill that includes important reforms sought by liberals, including reduced sentences for minor crimes.  Democrats, however, oppose the mens rea provision on the ground that it would weaken efforts to prosecute corporate executives whose companies have caused harm.  Their opposition is a major stumbling block to passage of the larger bill.  But suspicions about Republican motivations should not turn liberals against these changes, because strengthening mens rea requirements will also help poor and minority people....

The Justice Department opposes the proposed mens rea measure on the ground that it would have prevented convictions of corporate executives whose products caused harm.  But it is entirely possible that the government could have proven mens rea had it been required to try.  Furthermore, criminal conviction is not the only way to make corporations pay for their harms: Tort liabilities and civil penalties are not constrained by mens rea requirements.  Senator Patrick Leahy, Democrat of Vermont, opposes strengthening mens rea requirements across the board, arguing that each problematic statute should be revised individually.  But it would take years to revamp thousands of laws....

The greatest impact of the federal legislation might be in encouraging changes at the state level, where poor and minority defendants are most frequently prosecuted.  Ohio and Michigan have already passed mens rea reform laws.  And in the wake of federal legislation, other states, including New York, would likely follow their lead.

Democrats should push for even more sweeping changes to unjust “felony murder” laws, which permit murder convictions for anyone participating in a felony in which someone dies, even if no one involved could have been expected to foresee that happening.  We know that adolescents are far less aware than adults of the risks their conduct involves, but since felony murder does not require proof of mens rea, adolescent defendants can’t offer evidence of their distorted perceptions of risk.

For liberals, the right’s proposal offers a chance to strike a blow for justice for ordinary people. No one should be convicted of a crime — or even stopped by the police — without evidence of a criminal state of mind.

Some recent and older related posts:

February 12, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, February 10, 2016

Senator Tom Cotton forcefully (and somewhat thoughtfully) makes his case against the current version of SRCA 2015

23992166449_9ff10a5a94As reported previously in this post and now again via this new piece from The Hill, a number of Senators are in the midst of a robust conversation about the merits of and concerns about the Sentencing Reform and Corrections Act (which I have called SRCA 2015 since its introduction last fall).  Of particular note and importance (and as noted in this prior post), Arkansas Senator Tom Cotton seems to be taking a leading role raising concerns about the current version of the SRCA, and I am now pleased and impressed that Senator Cotton has provide a thorough articulation of his concerns through this new Medium commentary titled "The Current Sentencing Reform and Corrections Act is Dangerous for America," and also through this extended speech delivered yesterday on the Senate Floor.

The Medium commentary, which is relatively short, does not do much more than emphasizethe anti-federal-sentencing-reform points already forcefully and repeatedly expressed by the National Association of Assistant U.S. Attorneys and Bill Otis and others who have been consistent opponents of any changes to the current federal sentencing status quo.  But the Senate floor speech is much, much longer and, in my view, in spots much, much more thoughtful in discussing the SRCA and his own perspectives about federal sentencing reform.  I highly recommend all persons following federal sentencing reform to read Senator Cotton's lengthy floor speech in full, and here are some of the (many) passages that has led me to describe it as forceful (and somewhat thoughtful):

Today, I want to discuss the Sentencing Reform & Corrections Act that has been voted out of the Judiciary Committee. There is much debate about the wisdom of this bill.  That is, like most bills we discuss in this chamber, a judgment call. But there cannot be debate over the facts of this bill. We have to be very clear on what this bill, by its own text, is designed to do....

By its text, the bill will not just apply to so-called "non-violent offenders," but to thousands of violent felons and armed career criminals who have used firearms in the course of their drug felonies or crimes of violence.

By its text, the bill will reduce sentences not for those convicted of simple possession, but for major drug traffickers, ones who deal in hundreds of thousands of dollars' worth of heroin or thousands of pounds of marijuana.  And let's be clear: drug trafficking is not "non-violent," as the bill's proponents often claim.  It's an industry that's built on an entire edifice of violence, stretching from the narcoterrorists of South America to the drug-deal enforcers on our city streets. If you think dealing drugs on a street corner while armed with a gun is a "non-violent" offense, you probably live in a rich suburb or a gated community....

It's been reported that the bill's sponsors are preparing to release a revised bill, one that would address some of these many shortcomings.  Regarding this news, I first want to thank the sponsors for acknowledging that the bill as passed by committee does in fact apply to serious drug traffickers and other violent felons.  I look forward to evaluating the new legislative text, and I hope it addresses these problems....

The [US Sentencing] Commission first reduced sentencing guidelines in 2007.  It did so again in 2010. And again in 2014. That is three major systemic sentencing reductions in the span of seven years. The result?  46,000 federal convicts will walk from jail early.  Wendell Callahan was one among that 46,000.  There will be many more like him. And while we pray — against all odds — that none of them go on to commit a triple-murder like Wendell Callahan did, or any other heinous crime, I'm afraid our prayers will go unanswered, at least in part.

The Sentencing Commission is an independent judicial agency that provides uniform sentencing guidance to judges. Congress didn't have a hand in those sentencing reductions.  But with the Sentencing Reform & Corrections Act, the Senate would impose a fourth major sentencing reduction within eight years — one that is deeper and broader than the reductions imposed by the Sentencing Commission.

This is badly misguided.  The Senate would be launching a massive social experiment in criminal leniency without knowing the full consequences of the first three reductions imposed by the Sentencing Commissions.  This experiment threatens to undo the historic drops in crime we have seen over the past 25 years....

The Senate, and the American people, need to consider any change to our sentencing laws with full information.  We need to know if this sentencing-leniency bill will return us closer to the days of the `70s and `80s when our cities were besieged by the drug trade, and whole communities were being rotted out as a result.  We need to debate sentencing changes with all the data available to us.  We need to do this with eyes wide open.

That is why today — together with Senators Hatch, Sessions, and Perdue — I am introducing the Criminal Consequences of Early Release Act.  This is a simple, but very needed bill.  It will require the federal government to report on the recidivism rates of the 46,000 federal inmates to be released early under the Sentencing Commission's reductions.  And it will require the same reporting for any prisoners released early under any future reductions passed by Congress.

The report required by this bill will make clear how many crimes are being committed by released felons.  It will make clear what types of crimes — from drug trafficking to assault to robbery to murder — are being committed by these felons. And it will make clear in which states these crimes are occurring.

Currently, this type of data is extremely hard to compile.  It is not reported by the Bureau of Justice Statistics, and any information we do have comes through anecdotes and sporadic media reports.  Full information on the criminal consequences of early release must be published in detail.  Before voting on any bill to reduce sentences, the members of this chamber need to understand fully the criminal consequences of prior sentence reductions....

I want to be clear.  To those who support the Sentencing Reform & Corrections Act, we are not in full disagreement. Like you, I oppose jail for first-time drug users with no prior record.  It's vanishingly rare for such offenders to be prosecuted and jailed in the federal system.  But it remains true that the better option for them — particularly if they are addicts — would be drug treatment.  Like you, I believe that our prisons should not be an anarchic jungle that is a danger to both prisoners and corrections officers.  Like you, I believe that those prisoners who will someday complete their sentences and re-enter society should be given the chance to rehabilitate and redeem themselves while in prison so that they do not recommit crimes once they are released.  Like you, I do believe that there exists the possibility of an unjust sentence, one that is so out of proportion that it shocks the conscience.

So I suggest, let's work on that bill.  Let's work on a bill that identifies and addresses all first-time drug possession inmates in the federal system, but keeps drug traffickers and other violent offenders in prison to finish their sentences.  Let's improve prison conditions and give prisoners a shot at redemption and a better life.  And, if you wish, let's work on a bill to speed the consideration of commutation applications.

If we want to undo unjust sentences, we can help the president use his constitutional power of pardon and commutation as a precise scalpel to identify and remedy those rare cases of manifestly unjust sentences.  But what we should not do is use the blunt instrument of releasing thousands of violent felons and major drug traffickers.  The president has the constitutional power to remedy unjust sentences.  But you know what power he doesn't have?  The power to bring back to life the victims murdered by prisoners who are released early or sentenced inadequately.

There are a number of statements in the parts of this speech quoted above with which I could take serious issue. In particular, Congress always has authority to block any and every formal decision by the US Sentencing Commission, and the crack-guideline reductions of 2010 were essentially mandated by Congress in the Fair Sentencing Act of 2010. Consequenlty, it is not accurate for Senator Cotton to assert that "Congress didn't have a hand in those sentencing reductions" to drug sentences promulgated by the USSC in recent years. More generally, to assert in blanket terms that "drug trafficking is not 'non-violent'," is no better than asserting in blanket terms that "drug trafficking is non-violent." Some federal drug-traffickers in some settings are extremely violent in doing business. But I have not heard of much violence taking place in all the stores now selling a whole lot of marijuana in Colorado and other states, and I surmise that the ability to purchase this drug in a safe environment is one reason marijuana sales seem to keep going up and up in a number of states.

But, critically, even though Senator Cotton sometimes favors rhetoric over reality in this speech, the basic themes and many particulars he stresses are an important and valuable contribution to the broader debate over federal sentencing reforms. In particular, Senator Cotton is 100% right that our national data on the recidivism rates and realities of federal offenders — not only with respect to those who get sentence reductions, but also for the entire released offender population — leave a lot to be desired and raise more questions than answers. (Indeed, as some readers likely know well, the very term "recidivism" is subject to various definitions in various settings.) I could not agree more with Senator Cotton's statement that the "Senate, and the American people, need to consider any change to our sentencing laws with full information." Indeed, I have long thought that many of our worst federal sentencing laws enacted in prior decades — e.g., the 100-1 crack/powder disparity, some of our most severe gun possession mandatory minimums — were passed largely based on misinformation about their reach and likely impact.

In addition, I think Senator Cotton merits praise for urging his colleagues to "improve prison conditions and give prisoners a shot at redemption and a better life," and especially for suggesting "work on a bill to speed the consideration of commutation applications" in order to "help the president use his constitutional power of pardon and commutation as a precise scalpel to identify and remedy those rare cases of manifestly unjust sentences." As long-time readers know, many sentencing reform advocates (myself included) have been advocating for Presidents of both parties to make much broader and more constitent use of the "constitutional power of pardon and commutation." I think it is both quite heartening and significant that now the Senate's most vocal opponent of proposed sentencing reforms is sincerely calling for President Obama (and future presidents) to use the clemency power to remedy any and all federal sentences that appear to the President to be "manifestly unjust."

February 10, 2016 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

"'In the Wasteland of Your Mind': Criminology, Scientific Discoveries and the Criminal Process"

The title of this post is the title of this interesting new article available via SSRN authored by Michael Perlin and Alison Lynch. Here is the abstract:

This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.

Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case.  If used properly, it may help to provide a more truly objective set of factors that contribute to an individual’s particular offending patterns, rather than continuing reliance on sentencing schemes that are swayed by societal bias and prejudice.  However, it can become problematic if a legal system relies too heavily on untested theories, and even more problematic in cases in which science does not support legal conclusions. Scientific discovery moves faster than the law, and it is critical to make sure that the legal system is given an opportunity to catch up, rather than risk allowing “junk science” to influence how a defendant is treated.

In this paper, we first examine criminal sentencing procedures, and discuss how a criminological view of a defendant’s offending behavior can work to mitigate harshly inappropriate sentences; in this context, we consider how Federal Sentencing Guidelines cases consider the significance of mental disability in sentencing decisions, especially in the aftermath of the Supreme Court’s decision in United States v. Booker.  Then we review recent work on the biological bases of certain criminal behaviors and how it can be captured through brain imaging.  Next, we consider how the use of such evidence continues to expand in the criminal trial process.  Following this, we look at how the school of therapeutic jurisprudence can better inform how the legal system incorporates such evidence.  Finally, we offer our recommendations for ensuring that scientific evidence is introduced appropriately in the legal system.

February 10, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (4)

Tuesday, February 09, 2016

Is California conducting an "unprecedented experiment in mass forgiveness"?

The question in the title of this post is prompted by the headline of this lengthy new Washington Post article, which suggests the Golden State has become a unique criminal justice laboratory.  Here are excerpts:

[Jose] Gonzalez is among thousands of felons benefiting from a grand experiment, an act of mass forgiveness unprecedented in U.S. history.  In California, once a national innovator in draconian policies to get tough on crime, voters and lawmakers are now innovating in the opposite direction, adopting laws that have released tens of thousands of inmates and are preventing even more from going to prison in the first place.

The most famous is a landmark ballot measure called Proposition 47, which in 2014 made California the first state in the nation to make possession of any drug — including cocaine and heroin — a misdemeanor.  More astonishing is the state’s decision to show leniency toward violent offenders, including murderers like Gonzalez.

For example, the state has ordered parole hearings for longtime inmates convicted of committing violent crimes before they turned 23, requiring authorities to consider anew whether immaturity at the time of the inmates’ offense argues for their release.

Meanwhile, Gov. Jerry Brown (D) has approved parole for roughly 2,300 lifers convicted of murder and about 450 lifers sentenced for lesser offenses — a revolution in a state that released only two lifers during former governor Gray Davis’s entire four-year term.  And more reforms could be in store. Last month, Brown unveiled a ballot measure that, if approved by voters in November, would grant early release to nonviolent felons who complete rehab programs and demonstrate good behavior.

Progressives across the nation have applauded California’s U-turn. “There is a gathering sense that the public is considerably less punitive than people had thought,” said Joe Margulies, a professor of law and government at Cornell University.

But with crime in some of California’s largest cities ticking up after years of sustained decline, many law enforcement leaders and victims’ advocates say the state has gone too far. “Our hope was folks getting out of prisons are going to come out and be model citizens,” said Christine Ward, executive director of the Crime Victims Action Alliance. “Unfortunately, we’re not seeing that.”...

So far, 250 inmates have been released under the Youth Offender Parole law, most of them violent offenders.  As many as 16,000 more remain eligible.  Meanwhile, a study by Stanford Law School found that Proposition 47 had unlocked the cell doors of nearly 4,500 prisoners since taking effect in late 2014.

Sheriffs, police chiefs and prosecutors speculate that Prop 47 has contributed to a recent rise in crime and homelessness in major California cities, arguing that the law eliminated a useful billy club: the threat of a felony conviction to steer addicts into treatment.  “It’s a vicious cycle,” said Kirk Albanese, deputy chief of the Los Angeles Police Department.  “You’ve got an addiction, we are not holding you accountable, and you’re back into the cycle of using. How do you support that habit?  Stealing.  Our burglaries are up, car theft is up, break-ins are up — they are all up.”

Hilary Chittick, a veteran judge for the Superior Court of Fresno County, said Prop 47 has “decimated” her ability to force addicts into treatment. “The public had a house with a leaky roof and bad pipes,” she said. “So they blew up the house.”

Prop 47 supporters acknowledge the problem and say efforts are underway to address it.  More drug courts, for instance, are opening their doors to misdemeanants as well as felons, said Prop 47 co-author Lenore Anderson, executive director of the advocacy group Californians for Safety and Justice. “If you think that you need a stick in order to mandate treatment, that option is available with a misdemeanor,” Anderson said.  But Prop 47 supporters reject the notion that the ballot measure contributed to localized spikes in crime.  Early reports indicate that recidivism among inmates released under the full range of reforms has been low....

In general, more than half of inmates released from California prisons — 54 percent — return to prison within three years. Among lifers paroled under Brown, the Los Angeles Times found, fewer than 2 percent have committed new crimes.  Among the 2,100 inmates released after the softening of the state’s three-strikes law, only about 6 percent have returned to prison. Michael Romano, director and co-founder of the Stanford Law School Three Strikes Project, attributes the success of this cohort in part to extensive rehab, but also to a kind of forgiveness psychology.

Because I do not live in California, it is hard for me to judge whether the state is genuinely engaged in "mass forgiveness" when passing laws designed to reduce its prison population and the severity of its sentncing laws. But there is little doubt that all sorts of significant criminal justice reforms are now playing out in California, and it will be quite valuable and important for criminal justice advoates and researchers to watch and study crime and punishment developments in the state in the months and years to come.

February 9, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Mark you calendar for ASKS, a big alternative sentencing summit next month in DC

Logohome99I am pleased to be able to promote an exciting event taking place next month: the Alternative Sentencing Key-Stakeholder Summit (ASKS), at Georgetown University Law Center, DC on March 7-8, 2016. Here is a link for registration, and here is the ASKS gameplan and a Q&A via its website:

Summit Overview: Alternative sentencing has been at the heart of improving public safety and includes successful sentencing, reentry and other fiscally responsible criminal justice policies and programs both in the U.S. and around the globe. As the U.S. starts 2016 with commitments from the President and Congress to pass meaningful federal criminal justice reform legislation, the time is right to evaluate the role alternative sentencing can play in furthering the key objectives of public safety and fiscal responsibility.

More Info: Who will participate in the ASKS Summit? The summit will bring together an unprecedented number of current and former leaders and senior government officials who have served on the front lines of day-to-day operations in the criminal justice system, including law enforcement, government, judiciary, defense, forensic social workers and psychologists, and nonprofits, as well as formerly incarcerated people, victims and advocacy groups.

What are the ASKS Summit objectives? Beyond education, ASKS will use plenary, breakout and interactive sessions to generate substantive dialogue between all delegates and identify key priorities for:

  • Expanding the use of effective alternative sentencing programs while enhancing public safety, including the mechanisms of discretion (police, prosecutorial and judicial) and legislative reforms;
  • Addressing public safety concerns over its broadened use and practical barriers to expansion and launching effective new programs in new jurisdictions, including operational limitations, program evaluation and public education;
  • NGOs that can help to support broader application of effective alternative sentencing, eg. ubiquity of access and other measures and peripheral programs to help ensure successful reentry.

February 9, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Saturday, February 06, 2016

"Instead of building 'super prisons,' let's build super schools"

The title of this post is the headline of this notable commentary by an Alabama state rep in response to a recent proposal by the state's Governor.  Here is how the commentary begins:

During his State of the State Address Tuesday night, Gov. Bentley laid out his four-year plan, which included spending up to $800 million to build four new super prisons.  The next day, the governor announced that he wants to transfer $181 million out of the education budget and put it in the general fund budget, which also pays for prisons.

Don't get me wrong.  There are some very serious problems with our state prisons. What's happening at the Julia Tutwiler Prison for Women is unacceptable!  Changes need to be made, and more prison reform is absolutely needed.

But how can the governor — or any legislators, for that matter — justify spending almost a billion dollars on new accommodations for prisoners while thousands of our children are going to school in run-down facilities that have broken windows and no air conditioning?

Instead of building "super prisons" like what the governor is talking about, how about we build "super schools" instead? Why is the governor willing to invest hundreds-of-millions of dollars in our prison population's future, but wants to cut hundreds-of-millions from our children's future?

Among other points, this commentary highlights the reality that, for states with fixed and limited budgets, any and all extra taxpayer investments in cells can often require a reduction in taxpayer investment in classrooms.

February 6, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Wednesday, February 03, 2016

"Do sex offenders deserve a scarlet letter on their passport?"

The question in the title of this post is the headline of this Los Angeles Times editorial.  Here is how it starts:

After rousing themselves from the 30-plus-year bad trip that was the war on drugs — or rather, the war on drug users — many Americans in and out of elected office looked around for someone else to persecute.  Someone, somewhere, must be so depraved and hateful that liberals and conservatives, Democrats and Republicans could join in common cause to vilify them.

They appear to have found their target: sex offenders.  The current case in point is a congressional proposal to alert the nations of the world that particular U.S. citizens who have committed sex offenses against minors are planning to visit.  Passports would be specially marked so that other countries could turn travelers away at the border because of old crimes for which they have already served their time in the U.S.

This vindictive bill has been wisely rejected numerous times in the past, but now it's heading to President Obama's desk.  He should veto it.

Sex offenses against minors are particularly horrendous crimes.  But when offenders have completed their sentences and periods of supervision, there is no more reason to continue hounding and harassing them than convicted murderers or drug traffickers, who don't bear scarlet letters on their passports.

But wait, some supporters argue, people who commit sex crimes against children are a special case.  As soon as they've done it once, they'll want more, posing imminent danger to any underage person anywhere.  Their front doors should be marked to warn trick-or-treaters.  They should be banned from park benches.

This blatantly false argument thrives on ignorance.  There are indeed mentally disordered sex offenders whose conditions make them extremely high risks to commit more crimes of the same variety.  Some may target minors.  But that is far different from saying that anyone convicted of a sex offense against a minor falls into that very narrow category.  Corrections officials in California report that most sexual crimes committed by adults against minors occur among family members, and that the rate of recidivism is fairly low.

Prior related post:

February 3, 2016 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (29)

Tuesday, February 02, 2016

"The Irrationality of Natural Life Sentences"

The title of this post is the headline of this New York Times Opinionator column authored by Jennifer Lackey.  Here are excerpts:

[Personal] transformations can be seen most clearly by considering the two ends of the spectrum of life.  On the early side, it is often noted that the prefrontal cortex of the brains of adolescents is still developing, and so they are more likely than adults to act on impulse, engage in dangerous or risky behavior, and misread social cues and emotions.  This raises a host of questions about the level of responsibility that juveniles bear for their crimes and the appropriate punishments that should be handed out to them.  If the underdeveloped brains of adolescents at least partly explain their criminal behavior, then holding them fully responsible for their actions, and punishing them as adults, seems wildly off the mark.

On the later side of the spectrum, only 1 percent of serious crime is committed by people over the age of 60. According to Jonathan Turley, a professor of public interest law at George Washington University: “Everyone agrees on what is the most reliable predictor of recidivism: age.  As people get older, they statistically become less dangerous.” Turley refers to this period as “criminal menopause,” a phenomenon that raises serious questions about the rationale for incarcerating the elderly.  Still, researchers project that the elderly prison population in the United States will be over 400,000 in 2030, compared with 8,853 in 1981.

At the early end of the spectrum of life, then, there is the possibility that prisoners might change; at the later end, there is the reality that they have changed.  Both facts bump up against natural life sentences.  A sentence of “natural life” means that there are no parole hearings, no credit for time served, no possibility of release.  Short of a successful appeal or an executive pardon, such a sentence means that the convicted will, in no uncertain terms, die behind bars.

Many types of arguments have been leveled against natural life sentences.  Economic ones focus on the ballooning costs of mass incarceration and the toll this takes on government budgets, especially as the age and medical expenses of prisoners rapidly increase.  Legal ones ask whether such sentences are cruel and unusual and therefore violate the Eighth Amendment, particularly for juveniles.  Social arguments ask whether natural life sentences discourage reform by providing no incentive for rehabilitation.  Moral concerns are grounded in the dignity and rights of prisoners, while psychological objections call attention to the myriad causes of deviant behavior and their responsiveness to appropriate treatment.

But one argument that is surprisingly absent from these conversations is an epistemic one that has to do with us.  For natural life sentences say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal.  Nothing.  So no matter how much a juvenile is transformed behind bars, and no matter how unrecognizable an elderly prisoner is from his earlier self, this is utterly irrelevant to whether they should be incarcerated.  Our absence of knowledge about the future, our ignorance of what is to come, our lack of a crystal ball, is in no way a barrier to determining now what someone’s life ought to be like decades from now.

Moreover, prisoners aren’t the only ones who can change: victims and their families can come to see the convicted as being worthy of forgiveness and a second chance, and public attitudes can evolve, moving away from a zealous “war on crime” approach to one that sees much criminal activity as the result of broader social problems that call for reform.  Even if we set aside the other arguments against natural life sentences — economic, legal, moral and so on — the question I want to ask here is this: how is it rational to screen off the relevance of this information?  How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades­-from-­now prisoner deserves?...

Notice that nothing in the epistemic argument here suggests that no prisoners should, in fact, spend the rest of their natural lives behind bars.  Instead, the point is that rationality requires that we leave the epistemic door open to acquiring new information.  Put bluntly, the argument says that it is irrational for the possibility of parole to be taken off the table at the outset of any sentence.

If Hume is right that “a wise man proportions his belief to the evidence,” then our beliefs about the punishment a person deserves at any given time need to be sensitive to the evidence available at that time.  But if we screen off huge amounts of potentially relevant information decades before the beliefs about what a prisoner deserves are even formed, then it is impossible for them to be proportioned to the evidence.

February 2, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Monday, February 01, 2016

"Accommodating Justice: Victim Impact Statements in the Sentencing Process"

The title of this post is the title of a forthcoming book by Tracey Booth, the introduction to which can be downloaded here via SSRN.  Here is the SSRN abstract:

Prominent criminologist, David Garland, has argued that VISs have led us into “unfamiliar territory where the ideological grounds are far from clear and the old assumptions an unreliable guide”.

A victim impact statement (VIS) is a highly nuanced and individual narrative that can operate as both an informational device in the sentencing process and an expressive mechanism for crime victims.  From the law perspective, VISs provide the court with details of harm caused by the offence and the consequences of the offending in order to further purposes of sentencing.  As an expressive mechanism, VISs offer victims the opportunity and space to express their feelings, tell their personal story of the aftermath of crime, and be heard by the court, the offender, and the wider community.

Though a well-established feature of contemporary sentencing hearings (at least in superior courts) VISs remain controversial in common law jurisdictions.  The ‘non-legal’ nature of VISs has generated uncertainty in relation to the functioning of the sentencing hearing and concerns have been raised that VISs are: inconsistent with established legal values, detrimental to the offender’s entitlement to a fair hearing, detrimental to victims’ wellbeing, and harmful to the integrity of the legal proceedings.

Accommodating Justice: victim impact statements in the sentencing process explores complex territory where VISs, the law and legal institutions intersect with a focus on the requirements of fairness, most particularly in the courtroom.  And it does so from multiple perspectives: courts, offenders and victims.  The book draws from a range of theoretical and doctrinal sources as well as empirical studies from Australia, Canada, the United States and the United Kingdom.  An ethnographic study of the performance of VISs in homicide sentencing hearings in the NSW Supreme Court woven through most chapters provides an innovative and evidence-based approach to the issues.

February 1, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4)

Sunday, January 31, 2016

Highlighting the highlights of the Colson Task Force report on improving federal justce system

As reported in this recent post, last week the Charles Colson Task Force on Federal Corrections issued numerous recommendations to reform the federal criminal justice system in a big report titled Transforming Prisons, Restoring Lives.  The helpful folks at Vice subsequently published this helpful overview of the report in an article headlined "A Bipartisan Congressional Panel Just Agreed on Ways to Send Fewer Americans to Prison."  Here are excerpts: 

Chief among the recommendations of the nine person, bipartisan Charles Colson Task Force on Federal Corrections is sending fewer low-level drug offenders to federal prison, and sentencing offenders to far fewer years behind bars, which would reverse two of the changes that have driven the federal prison population to grow by 700 percent since 1980.

But the task force also dug into the minutiae of how the prison system is operated, including how it evaluates the success of its programs, the recidivism rate, and how it uses its resources.  In their final report, members suggest that the prisons should actually devote more resources to addiction treatment, cognitive behavioral therapy, classes, and faith programs, and incentivize participation by offering offenders reducing time from their sentences and a "second look" at their cases by a federal judge after they've served certain number of years.

"If their behavior is good in the program, they've taken part in programs, they can have their sentence looked at again. It's an incentive to have people behave well and participate in programs that are evidence-based to improve behavior," said Laurie Robinson, a criminal justice professor and former Assistant Attorney General who served on the task force....

Robinson described her experience working with the task force as "terrific."  Despite 30 years working in the criminal justice system, she said she learned both from the diverse viewpoints of her colleagues and the federal prisoners she met on site visits.  "Some were in their late 60s or 70s, and at least one of those individuals was in very bad health and said he had applied several times for compassionate release," she said.  "And it just made you think: Why are we spending so much in the way of taxpayer dollars to keep people behind bars?"...

Robinson and her colleagues were meeting with senior staff at the White House ... to brief them on the report and point out which actions could be taken without a Congressional vote or legislation.  "There are things in there that the director of the BOP could do tomorrow, she said, noting that there are also steps the DOJ and president could take that focus on management, resource allocation, and best practices.  Others of them I think might not happen necessarily quickly but maybe are things that will get into the public conversation that will have to happen at a later time," she said....

Going forward, the report says, sentences should be individualized, policy should emphasize public safety, data should guide policies, and the costs should be more carefully considered.  Most importantly, the report says, the lawmakers who receive the recommendations "must capitalize on this rare moment in time" of political will and public awareness to make effective change.

Prior related post:

January 31, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Saturday, January 30, 2016

Judge Jack Weinstein disregards severe federal child porn guidelines again

A helpful reader alerted me to this notable local story describing the latest notable child porn downloading sentence imposed by US District Judge Jack Weinstein.  The piece is headlined "Judge Gives Man 5 Days for Child Porn, Rails Against Harsh Sentences," and here are excerpts:

A Brooklyn man who faced 10 years for downloading child pornography was sentenced to five days by a federal judge who sharply criticized punishment guidelines for failing to distinguish between dangerous offenders and those who pose little threat.

U.S. District Judge Jack Weinstein wrote a 98-page decision explaining why he bypassed the guidelines and chose not to put the man in prison for possessing two dozen photos and videos — some showing men sexually assaulting girls as young as 3 years old, according to court papers.  "Removing R.V. from his family will not further the interests of justice," Weinstein wrote, using the defendant's initials. "It will cause serious harm to his young children by depriving them of a loving father and role model and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."

His opinion, first reported in the New York Law Journal, is the latest salvo in a war over whether penalties for possessing child pornography have gotten too harsh.  The existing guidelines, Weinstein wrote, do not "adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment."

The defendant, who agreed to speak to NBC News on the condition his name was not used, said he was surprised and relieved that Weinstein was so lenient after his guilty plea.  "I prayed to God and took my chances," the 53-year-old father of five said.  "I feel very remorseful. It's something that will never happen again."

But child-abuse victims' advocates said they were appalled by Weinstein's reasoning. "I think Judge Weinstein's opinion minimizes the harm that is done to victims of these crimes from the mere act of viewing their images. It's a gross violation of privacy and an invasion of privacy that traumatizes them throughout their lives," said Paul Cassel, a former federal judge who is now a law professor at the University of Utah.

In 2013, investigators remotely connected to the man's computer and downloaded four photos and videos showing men engaged in sexual acts with girls, including a 3-year-old and a 5-year-old, and they seized more porn on thumb drives with a search warrant, court papers said. The man also had "sexual" chats with underage girls online, but there was no evidence he sought physical contact with minors. When he pleaded guilty, the defendant said he understood the charge carried up to 10 years behind bars. Based on the specifics of his case, the federal guidelines called for a sentence of 6.5 to 8 years in prison.

But Weinstein thought that was too much time for an offender who did not make, swap or sell child porn or try to abuse children. He said the five days the man served before making bail, plus seven years of court supervision and a fine, were punishment enough. The judge noted that the man was undergoing sex offender treatment and was deemed unlikely to relapse and that a psychiatrist testified he was not a danger to his own or other children. He also noted that the Internet has made child pornography accessible to a much wider group of Americans who might not otherwise have been exposed to it.

The man — who lost his $75,000-a-year job as a restaurant manager after his arrest — told NBC News that he stumbled on child pornography while consuming legal, adult pornography online. "I just got caught up in it," he said. "It's not like I woke up and said, 'Listen, let me look at this stuff.' It kept popping up every time I was downloading."

Weinstein is among a group of federal judges who have argued that sentencing ranges for possessing child pornography — which were doubled by Congress in 2003 — are too severe. The federal bench handed down sentences below the guidelines 45 percent of the time, the Associated Press reported in 2012. Those who favor tougher sentences point out that while many consumers of child pornography may not never lay a hand on a child, some do. And all, they say, play a role in a system that promotes the abuse of children....

Jennifer Freeman, an attorney who represents child-porn victims in efforts to obtain restitution, called Weinstein's opinion "a diatribe" and said he was using the particulars of one case to indict the entire sentencing structure. "He's basically saying it's not worth too much punishment," she said, adding that she did not want to comment on whether the man Weinstein sentenced deserved more time than five days.

That man said that he had done something wrong and was ashamed of it but that locking him up would not have served any purpose and would have "put my family living out on the street."

"It should be illegal," he said of child pornography. "No child should be put through that process." But he added, "I would never physically do anything. I never had even a thought of it."

I will need to track down and review closely Judge Weinstein's lengthy opinion in this case before I would feel comfortable weighing in on this specific sentencing decision. But I already can state that I am sure federal prosecutors involved in this case are sure to feel quite uncomfortable when trying to decide whether to appeal this sentencing decision to the Second Circuit as unreasonable.

Assuming Judge Weinstein did not disregard any applicable mandatory minimum statute nor made any other clear doctrinal error, federal prosecutors might have a hard time establishing on appeal that Judge Weinstein's exercise of his post-Booker discretion in this case was unreasonable (especially in light of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines).  But a decision by federal prosecutors not to appeal this sentence might be viewed, perhaps properly, as a tacit admission by the government that a non-prison sentence can be appropriate in some child porn downloading cases.

UPDATE:  A helpful reader sent me a copy of Judge Weinstein's sentencing opinion in this case, so I can now provide it here for downloading:  Download US - v- RV weinstein sentencing opinion

January 30, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (23)

Friday, January 29, 2016

Forces in Oklahoma talking about criminal justice reform via ballot initiative ... prompting question "is direct democracy the best way to approach criminal justice reform?"

This local article, headlined "Coalition wants to give voters a choice on criminal justice reform in Oklahoma," highlights that a number of prominent advocates for criminal justice reform in the Sooner State want to soon have citizens voting directly on these reforms. Here are the basics:

A politically diverse group of state officials, policy advocates, and members of the business community came together Wednesday to announce they were joining forces to stop a problem the state can no longer ignore: Oklahoma's high incarceration rates. “We're running a factory to create future felons,” said Bancfirst Corp. Chairman Gene Rainbolt.  “It's ridiculous.”

Addressing the media at the state Capitol, Rainbolt was among about one dozen other prominent Oklahomans who said they had formed a coalition, known as Oklahomans for Criminal Justice Reform, and they plan to take the issue straight to the voters through two ballot initiatives.

“We need to correct corrections, and if we're going to call it the Department of Corrections we need to do some correcting. If not now, when? We are at 119 percent capacity,” said Rep. Pam Peterson, R-Tulsa, referencing the state's swelling prison population. More than 28,000 inmates — the highest prison population the state has ever seen — sit behind bars in Oklahoma today.

If successful, the coalition will place two ballot measures before voters, said former state House Speaker Kris Steele. The first will lower several nonviolent felonies that would warrant prison time, such as simple drug possession and writing fraudulent checks, to misdemeanors that would call for community-based treatment....

The second initiative would task the Office of Management and Enterprise Services with tracking the number of offenders who would be diverted to treatment rather than prison and calculate the savings.  Those funds would be held in a lock box, to be distributed to county governments for substance abuse treatment, mental health care, and offender supervision. This money could be going to schools, health care, and “the other building blocks for a good state,” said David Blatt, president of the Oklahoma Policy Institute....

In order to get both questions on a state ballot, the coalition will have to gather almost 68,000 signatures for each initiative. Several bills have been filed for the upcoming Legislative session that will address many of the same solutions proposed in the ballot measures, said Rep. Peterson, and their hope is to complement those efforts.

Peterson noted Steele's work years before with the Justice Reinvestment Initiative, a sweeping criminal justice reform bill passed by the state Legislature in 2011. JRI would have moved Oklahoma's justice system in a similar direction, but it was never fully funded and eventually stymied. Peterson said reform of this level doesn't happen overnight. “Speaker Steele really started in 2011, but it's taken this long to get to this point,” she said when asked if the political climate is right for sentencing reform. “So, it takes a while.”

I find this story of taking reform efforts directly to the voters in Oklahoma especially in the wake of California Gov Jerry Brown earlier this week (as blogged here) proposing a state ballot initiative to expand parole and make other reforms that I would usually expect to be pursued via traditional legislative action. And, of course, as often highlighted in posts at my other blog, Marijuana Law, Policy and Reform, ballot initiatives have been the primary driver of major marijuana reforms in the states over the last decade.

I tend to be a huge fan of so-called "direct democracy" for a wide number of legal process reasons, but these latest developments in California and now Oklahoma leave me to wonder a lot if criminal justice reform by plebiscite ought to be seen as a truly welcome development.

January 29, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, January 28, 2016

"Gender, Risk Assessment, and Sanctioning: The Cost of Treating Women Like Men"

The title of this post is the title of this notable and timely new paper authored by Jennifer Skeem, John Monahan and Christopher Lowenkamp now available via SSRN. Here is the abstract:

Increasingly, jurisdictions across the U.S. are using risk assessment instruments to scaffold efforts to unwind mass incarceration without compromising public safety. Despite promising results, critics oppose the use of these instruments to inform sentencing and correctional decisions. One argument is that the use of instruments that include gender as a risk factor will discriminate against men in sanctioning.

Based on a sample of 14,310 federal offenders, we empirically test the predictive fairness of an instrument that omits gender, the Post Conviction Risk Assessment (PCRA). We found that the PCRA strongly predicts arrests for both genders — but overestimates women’s likelihood of recidivism.  For a given PCRA score, the predicted probability of arrest — which is based on combining both genders — is too high for women.  Although gender neutrality is an obviously appealing concept, it may translate into instrument bias and overly harsh sanctions for women.  With respect to the moral question of disparate impact, we found that women obtain slightly lower mean scores on the PCRA than men (d= .32); this difference is wholly attributable to men’s greater criminal history, a factor already embedded in sentencing guidelines.

January 28, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (2)

Wednesday, January 27, 2016

"Legislation to clarify intent requirements is long overdue brake on prosecutorial excess"

The title of this post is the headline of this notable new commentary in The Hill authored by Norman Reimer, executive director of the National Association of Criminal Defense Lawyers. Here are excerpts:

For several years now, unprecedented bipartisan support for an array of criminal justice reforms, including addressing criminal intent deficiencies, has been building.  Leaders from across the political spectrum have reached across the political divide to work together for a fairer, more rational, and more humane criminal justice system.  This emerging coalition seeks to restore a measure of restraint to a criminal justice system that is out of control.  The United States has more than 2 million people behind bars, recent FBI statistics indicate that we arrest more than 14 million annually, and we have more than 70 million adults with a criminal record.

These shocking statistics do not make the case that this is a nation of criminals; rather they reflect an unprecedented and unrestrained use of the prosecutorial power of government to regulate all manner of disfavored social and personal behavior. There are many ways to address this problem.  One modest, but critical step is to ensure that there is clarity in the criminal law, and that we do not enact vague criminal provisions and count on prosecutorial discretion to ensure that they are not misapplied.  Recently proposed legislation in the House and Senate that would provide a default intent provision where a statute is silent on the level of intent necessary to brand a person as a criminal is a responsible, measured, and incremental step to reign in governmental abuse of its prosecutorial power....

When the government brings to bear its most awesome power short of warfare, the power to prosecute an individual, it has an obligation to do so with precision and clarity, so that the average person can understand what is illegal.  A fundamental principle of law is that to establish criminal behavior it must be demonstrated that a person committed a bad act, and did so with some culpable mental state.

Unfortunately, the federal criminal code has exploded from a handful of criminal provisions a century ago to what is now estimated to be more than 4,500 criminal statutes, and hundreds of thousands of additional criminal provisions in federal regulations.  In its headlong rush to criminalize, Congress has become careless by writing laws and authorizing agencies to enact criminal provisions that can send people to jail, but do not define the required criminal mental state.  That failing opens the door to prosecutorial abuse.  Nonetheless, the Department of Justice is raising concerns about the proposed legislation.  Heaven forbid we should actually make prosecutors prove that someone actually intended to commit a crime!

What the DOJ criticism does not recognize is that criminal intent reform merely provides that if a criminal law or regulation lacks a prescribed mental state then judges and prosecutors should presume that there really is one.  It does not undo any criminal provision that already has a prescribed state of mind.  Government prosecutors can still go after people to their heart’s content, and, despite claims to the contrary, they can do so based on willful, reckless, or negligent behavior if that is what the law provides.  And they can even prosecute based on strict liability – that is without showing a guilty state of mind – provided that is what the law expressly authorizes.  But if the law is silent, rather than ceding to prosecutors unchecked authority to wield the prosecutorial power indiscriminately, this new law provides a modest brake on that power by requiring proof that the person knew that they were breaking the law.

Some recent and older related posts:

January 27, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, January 26, 2016

"Congressionally Mandated Task Force Calls for Bold Transformation of Federal Corrections System"

CCTFThe title of this post is the headline of this press release which summarized the contents and import of a new report released this morning by the Charles Colson Task Force on Federal Corrections.  Here are excerpts from the press release (which includes a link to the report):

Today, the Charles Colson Task Force on Federal Corrections issued a set of bold recommendations to reform the federal justice system, enhance public safety, and save the government billions of dollars. In a new report, Transforming Prisons, Restoring Lives, the Congressionally mandated blue-ribbon panel released the findings of its year-long investigation into the nation’s overcrowded and costly federal prisons....

“We have laid out a detailed roadmap of ambitious, consensus-based recommendations that place public safety first while reserving prison for those who truly need it,” said task force chair, former Republican congressman from Oklahoma J.C. Watts, Jr. “If taken together, these reforms are projected to reduce the federal prison population by 60,000 people in the coming years and save more than $5 billion.”

Congress established the bipartisan panel in 2014 in response to mounting concerns about the scale and cost of the federal Bureau of Prisons (BOP), which currently houses 197,000 people with a budget of almost $7.5 billion this year. Alan Mollohan, the task force’s vice-chair, said that the seven-fold increase in the BOP’s population since the 1980s is unsustainable. 

"The BOP has been operating at crisis levels for decades," said Mollohan, a former Democratic congressman from West Virginia. "As a result, its policies and practices have not kept up with best practice in the field, presenting a missed opportunity to rehabilitate those who are confined in federal prisons and thus promote public safety.”...

In the report, the task force recommends that the federal justice system move away from its current “one size fits all” approach to meting out punishment and delivering treatment and programs. Instead, they advise that sentencing decisions and correctional responses be based on the individual case–an approach grounded in research evidence as the most effective means of reducing recidivism.

Observing that prison is expensive and imposes tremendous harm to individuals, families, and communities, the Task Force recommends that prison sanctions be used sparingly and long terms of incarceration be reserved for only the most serious federal crimes. They advise incentivizing participation in programs that are proven to lower recidivism and increase the odds of success for individuals reentering society. And, in following the example of successful reforms in states like Texas, Utah, Georgia, South Carolina, and Pennsylvania, they advocate for a more diversified, evidence-based approach to criminal justice that delivers public safety at less cost.

In more specific terms, the Task Force recommends that:

  • Mandatory minimum penalties for drug offenses should be reserved for “drug kingpins”–those found to have served a leadership role in a large cartel;
  • Program and treatment participation in prison should be incentivized through earned time off one’s sentence; and
  • The BOP should better assess the risks, needs, and assets of its population and align programming and treatment accordingly to reduce recidivism and enhance public safety.

Along with the release of this important report, J.C. Watts, the chair of the Charles Colson Task Force on Federal Corrections, authored this Washington Post commentary headlined "Prisons are full of low-level offenders. It’s time to rethink federal sentencing laws.: Americans believe in redemption, but for too long, our reflexive reliance on incarceration has left us little room to show it."

January 26, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

"Why we must rethink solitary confinement"

The title of this post is the headline of this new Washington Post commentary authored by the President of the United States Barack Obama.  Here are excerpts from the piece, which concludes with a pitch for broader sentencing reforms:

Solitary confinement gained popularity in the United States in the early 1800s, and the rationale for its use has varied over time.  Today, it’s increasingly overused ... with heartbreaking results — which is why my administration is taking steps to address this problem.

There are as many as 100,000 people held in solitary confinement in U.S. prisons — including juveniles and people with mental illnesses.  As many as 25,000 inmates are serving months, even years of their sentences alone in a tiny cell, with almost no human contact.

Research suggests that solitary confinement has the potential to lead to devastating, lasting psychological consequences.  It has been linked to depression, alienation, withdrawal, a reduced ability to interact with others and the potential for violent behavior.  Some studies indicate that it can worsen existing mental illnesses and even trigger new ones.  Prisoners in solitary are more likely to commit suicide, especially juveniles and people with mental illnesses.

The United States is a nation of second chances, but the experience of solitary confinement too often undercuts that second chance.  Those who do make it out often have trouble holding down jobs, reuniting with family and becoming productive members of society.  Imagine having served your time and then being unable to hand change over to a customer or look your wife in the eye or hug your children.

As president, my most important job is to keep the American people safe.  And since I took office, overall crime rates have decreased by more than 15 percent.  In our criminal justice system, the punishment should fit the crime — and those who have served their time should leave prison ready to become productive members of society.  How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer.  It’s an affront to our common humanity....

The Justice Department has completed its review [on the use of solitary], and I am adopting its recommendations to reform the federal prison system.  These include banning solitary confinement for juveniles and as a response to low-level infractions, expanding treatment for the mentally ill and increasing the amount of time inmates in solitary can spend outside of their cells.  These steps will affect some 10,000 federal prisoners held in solitary confinement — and hopefully serve as a model for state and local corrections systems.  And I will direct all relevant federal agencies to review these principles and report back to me with a plan to address their use of solitary confinement.

Reforming solitary confinement is just one part of a broader bipartisan push for criminal justice reform.  Every year, we spend $80 billion to keep 2.2 million people incarcerated.  Many criminals belong behind bars.  But too many others, especially nonviolent drug offenders, are serving unnecessarily long sentences.  That’s why members of Congress in both parties are pushing for change, from reforming sentencing laws to expanding reentry programs to give those who have paid their debt to society the tools they need to become productive members of their communities.  And I hope they will send me legislation as soon as possible that makes our criminal justice system smarter, fairer, less expensive and more effective.

In America, we believe in redemption.  We believe, in the words of Pope Francis, that “every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes.”  We believe that when people make mistakes, they deserve the opportunity to remake their lives.  And if we can give them the hope of a better future, and a way to get back on their feet, then we will leave our children with a country that is safer, stronger and worthy of our highest ideals.

January 26, 2016 in Criminal justice in the Obama Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, January 25, 2016

Helpful accounting by Pew Charitable Trusts of huge state-level reforms resulting from Justice Reinvestment Initiative

The good folks at Pew recently released these two helpful mini-reports that provide a summary accounting of lots of the criminal justice reform work that has been done by states in recent years through the so-called Justice Reinvestment Initiative:

The first of these linked documents has a pdf version with huge chart with lots of interesting specifics under the heading "Sentencing and Corrections Reforms in Justice Reinvestment States."  Anyone eager to get a feel for just some of the massive criminal justice reforms that have taken place in the states over the last decade ought to check out this document.  And the document has this overview discussion at the outset:

Since 2007, 31 states have reformed their sentencing and corrections policies through the Justice Reinvestment Initiative, a public-private partnership that includes the U.S. Justice Department’s Bureau of Justice Assistance, The Pew Charitable Trusts, the Council of State Governments Justice Center, the Crime and Justice Institute, the Vera Institute of Justice, and other organizations.  Although reforms vary from state to state, all aim to improve public safety and control taxpayer costs by prioritizing prison space for serious and repeat offenders and investing some of the savings in alternatives to incarceration for low-level offenders that are effective at reducing recidivism.

Justice reinvestment policies generally fall into four categories: sentencing laws that instruct courts about how to sanction convicted defendants; release laws that determine the conditions for offenders’ departure from prison; supervision laws that guide how those on probation or parole are monitored; and oversight laws that track the progress of these changes.

In the years since the wave of reforms began, the total state imprisonment rate has ticked downward while crime rates have continued their long-term decline.  At the same time, states that have enacted justice reinvestment laws expect to save billions of dollars as a result of their reforms. 

The second document linked above drills down a little deeper into sentencing-specific reforms, and a quick review of the state-by-state changes suggests that even more "red" states have been involved in making sentencing reforms through the Justice Reinvestment Initiative than "blue" states.

January 25, 2016 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Sunday, January 24, 2016

Making a pitch for judicial second looks while asking "Did I Sentence a Murderer or a Cooperative Witness?"

The question in the second half of the title of this post is the headline of this New York Times commentary authored by Stefan Underhill, a federal district judge in Connecticut.  But the headline does not reflect what thus commentary is really about: it makes a pitch for creating a significant new judicial second-look mechanism in federal sentencing.  I recommend this commentary in full, and here are excerpts:

In 2006, I sentenced a man to 18 years in prison. I have been wrestling with that decision ever since. As a federal district judge, I’ve sentenced hundreds of people, but I’ve rarely agonized as much as I did over this man’s fate.

He was the enforcer for a brutal gang of drug dealers in Bridgeport, Conn., known as the Terminators, and had sold heroin, assaulted rival dealers and murdered a potential witness.  But after a falling-­out with the head of the gang, he turned over a stash house to the police and fled the state.  When captured in 2001, he immediately confessed to the murder and later testified as a star witness for the prosecution.

Thus arose my problem: He had committed horrible crimes, but he also seemed to be making an unusually sincere effort to atone for them.  So which man was I sentencing?  The murderer or the remorseful cooperator?

The prosecutor rewarded his cooperation by filing a so­called 5K motion, which allowed me to ignore the mandatory life sentence he otherwise would have faced.  Still, after weighing the seriousness of his crimes, I sentenced him to 18 years, which was more time than even the prosecutor wanted....

In the years that followed, I often wondered whether his remorse was strong enough to overcome his past.  In 2012, I had the chance to find out.  While attending a conference on sentencing issues, I learned that he was serving time in a prison nearby.  I wanted to know whether he had become a better citizen or a better criminal.  So I asked a prison staffer if I could meet with him in private.

That the warden felt no need to post a guard was my first clue that he had changed for the better.  He was working in his first real job at the prison industries factory and had been promoted to supervisor.  He showed me recommendations from prison employees for good jobs on the outside.  He brought a folder full of certificates he had earned for attending classes.  He talked lovingly about his girlfriend and daughter, with whom he planned to live as a family after his release.

The meeting made me proud of his accomplishments, but sad that I had not been more confident in him.  He still had several years left on his sentence, but it was clear that he had served enough time.  After I returned to my office, I contacted the prosecutor and his lawyer and encouraged them to find a way to get him released early.  But they told me there was no straightforward way to shorten a federal inmate’s sentence, even if prison officials acknowledge that more jail time is a waste of time and money.  So he had to stay in prison, at an annual cost of $30,000 to taxpayers.

The tragedy of mass incarceration has recently focused much attention on the need to reform three-­strikes laws, mandatory minimums and the federal sentencing guidelines, which often direct judges to impose excessive sentences. We also need a mechanism for judges to re­evaluate the sentences they’ve imposed.  It’s true that federal prisoners can earn up to 15 percent off the length of their sentences if they stay out of trouble.  But this doesn’t incentivize prisoners to take advantage of work or study opportunities.

Instead, Congress should enact legislation that would allow every sentenced defendant one opportunity to petition his sentencing court for a reduction based on extraordinarily good conduct and rehabilitation in prison.

This “second-­look review” should be available only to prisoners who are supported by their wardens.  To minimize the increased workload on busy federal judges, each prisoner should be allowed only a single opportunity to seek early release and do so only after serving at least half of the sentence imposed (or two­-thirds of a mandatory minimum sentence).

Factors in support of an early release should include more than just clean disciplinary records in prison.  Job readiness, success with drug treatment, completion of vocational and educational training and extraordinary family or health circumstances should count as well....

I don’t advocate for a return to the flawed federal parole system that was essentially abolished in the 1980s.  In that system, a judge who believed that a defendant should spend three years locked up would impose a nine­year sentence because parole was likely to be granted after he served one­-third of it.  But if that defendant’s parole was delayed or denied, the judge’s original intent was impeded.  In contrast, my proposal would give the sentencing judge control. This makes sense because judges know whether a particular defendant got a break at sentencing or not and can best gauge the extent of positive change in a person....

A “second look” to adjust sentences would give inmates an incentive to prepare themselves for productive lives on the outside, and allow judges like me to correct sentences that turn out, in hindsight, to be unnecessarily long. This would improve the fairness of our criminal justice system and increase the public’s confidence in our courts.

UPDATE: Intriguingly, since I posted this piece, the New York Times changed its on-line headline to "Did the Man I Sentenced to 18 Years Deserve It?". And, echoing my own gut instincts, it seems that more than a few commentors think that someone who murdered a potential witness deserves at least 18 years in prison. In light of that view, I think the most notable aspect of this sentencing story is fact that the initial 18-year prison sentence "was more time than even the prosecutor wanted."

January 24, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Friday, January 22, 2016

"Incarceration Incentives in the Decarceration Era"

The title of this post is the title of this notable new paper by Avlana Eisenberg now available via SSRN. Here is the abstract:

After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined.  Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth.  These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform.

This Article scrutinizes the incentives of these industry stakeholders in the new decarceration era. Drawing on interviews with a wide range of industry actors, it develops a “taxonomy of resistance” to identify how and why these actors resist reform efforts and uncovers understudied parallels between private and public prison stakeholders.  This fine-grained analysis grounds the Article’s recommendations for changes to compensation and assessment structures to better align industry incentives with decarceration-era goals.  Ultimately, the future of the decarceration era is precarious but not doomed.  The detailed incentives unearthed by this study demonstrate the significant hurdles facing emerging decarceration policies and the urgent challenge of accounting for, overcoming, and co-opting entrenched prison industry stakeholders.

January 22, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)