Friday, November 04, 2016
"Bridgegate" now a federal sentencing story after two former New Jersey officials convicted on all federal counts after lengthy jury deliberations
As regular readers know, I tend to avoid discussing high-profile criminal prosecutions unless and until they become interesting or important sentencing stories. And then, perhaps problematically, once they become notable sentencing stories, I tend to discuss the cases too much. These tendencies are going to be on full display now that the long-running so-called "Bridgegate" scandal this morning because a great sentencing story. This CNN piece explains, while concluding with an accurate and ridiculous sentencing point:
Two former officials linked to New Jersey Gov. Chris Christie's office were found guilty on all charges Friday in connection with the closure of lanes in 2013 on the George Washington Bridge in an act of alleged political retribution, the fallout for which has come to be known as Bridgegate. The news comes after nearly five days of deliberations from the jury.
Bridget Anne Kelly, the former deputy chief of staff to Christie, and Bill Baroni, the former deputy executive director of the Port Authority of New York and New Jersey, both faced seven counts of various charges including conspiracy, fraud, and civil rights deprivation.
The verdict is another setback in Christie's political career, following a controversy that spans nearly three years and put a significant dent in the Garden State Republican's presidential ambitions. Christie is heading planning behind Republican nominee Donald Trump's transition if he wins the presidency. CNN has reached out to the Trump campaign for comment and not yet gotten a response.
Prosecutors allege that the lane closures on the George Washington Bridge were part of a deliberate effort to punish the Democratic mayor of Fort Lee, New Jersey, who did not endorse the Republican incumbent Christie in his 2013 re-election bid. Emails and text messages released in January of 2014 form the basis of the charges. In one particularly damning email, Kelly told former Port Authority official David Wildstein, "Time for some traffic problems in Fort Lee." Kelly later said her messages contained "sarcasm and humor," and she claims that she had told Christie about traffic problems resulting from a study a day prior to sending the email....
Kelly and Baroni each face a maximum sentence of 86 years, according to Paul Fishman, the federal prosecutor in the case.
Though I am disinclined to accuse federal prosecutors of "overcharging" unless and until I know all the facts, the simple fact that the conviction on all counts here even presents the possibility of a sentence of 86 years in prison leads me to be more than a bit suspicious of how the feds approached this case. That concern aside, I feel pretty certain predicting (1) that now-convicted federal felons Bridget Anne Kelly and Bill Baroni are unlikely to be sentences to more than a few years in prison, and (2) that federal prosecutors are going to be inclined to ask for a pretty lengthy prison sentence for these two because they had the temerity to contest their guilt and put the feds through the bother of a lengthy trial, and (3) that a low-profile, high-impact legal question for Kelly and Baroni is whether they will be given bail pending what could be very lengthy appeals of their multiple convictions.
I have not followed this case closely enough to even begin to figure out what the advisory guideline calculations might look like in these cases, but I would love to hear from some informed folks about what they think Bridget Anne Kelly and Bill Baroni are now facing, formally or informally, as this long-running scandal becomes a fascinating federal sentencing case.
November 4, 2016 in Campaign 2016 and sentencing issues, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (9)
"If guilt is proven, should juries always convict?"
The title of this post is the headline of this very interesting new article appearing in my own local Columbus Dispatch. Here is the context and commentary that follows the headline:
No one denied that Edwin Sobony II savagely beat his wife’s heroin supplier with a baseball bat when the man visited the couple’s Hamilton Township home in December. Sobony admitted to investigators that he did it after repeatedly begging the man to stay away. At his trial in September on charges of felonious assault, his defense attorney told jurors that Sobony’s actions were “felonious as hell.”
Yet the attorney, Sam Shamansky, encouraged the jury to acquit his client anyway. “He assaulted him with this bat,” Shamansky said, holding the weapon aloft during his closing argument. “And you say to yourself, ‘You know what, that’s OK. That’s what I would have done.’ Because no one can challenge that opinion. You can go back in that jury room and believe that and vote for it and nobody can touch you. That’s the beauty of the system. It prevents these kinds of prosecutions from ruining lives.”
Shamansky also told jurors that they could acquit by finding that Sobony acted in defense of himself and his family. But he acknowledged last week that, in case they rejected the self-defense claim, he was trying to persuade them that they could employ what is known as jury nullification to find his client not guilty.
Jury nullification occurs when jurors acquit a defendant, despite the prosecution proving its case beyond a reasonable doubt, because they believe the law is unjust or has been unjustly imposed. It appeared to happen last week in Oregon, where a jury acquitted seven defendants who had armed themselves and occupied a national wildlife refuge during a 41-day standoff with federal authorities.
Shamansky’s arguments on behalf of Sobony didn’t work. The jury deliberated for less than three hours before finding the mail carrier guilty of one count of felonious assault. Sobony, 38, is scheduled to be sentenced Wednesday by Franklin County Common Pleas Judge Charles Schneider.
Not everyone agrees that nullifying a law is an appropriate option for juries. Ric Simmons, a professor of law at Ohio State University’s Moritz College of Law, said jurors take an oath to follow the law and return a conviction if the prosecution meets its burden of proof. “In my view, jurors are under a legal obligation to follow the law,” he said.
However, jurors can’t be punished for their decisions, regardless of their reasoning, and their verdicts can’t be appealed. “So jury nullification exists, and we can’t do anything about it,” said Simmons, a former prosecutor.
Others say jury nullification is a time-honored tradition in the United States and was seen by the Founding Fathers as a check on abuse or overreach by the government. It was used by pre-Civil War juries to acquit those charged with violating the Fugitive Slave Act. More recently, it’s been used to acquit those charged with what juries consider antiquated drug-possession laws.
“Jury nullification has played a huge role in the development of our laws,” said Clay S. Conrad, author of “Jury Nullification: The Evolution of a Doctrine.” “For instance, it’s why we have a range of charges for murder, from manslaughter to capital murder. Juries didn’t want everyone to get the death penalty.”
Conrad, a lawyer based in Houston, said police, prosecutors and judges shouldn’t be the only ones allowed to use discretion in how they apply the law. “If a jury believes the prosecution’s idea of justice is wrong, they should have every right to reflect that with their verdict,” he said. “I think the problem we have with getting more juries to nullify in cases where it is appropriate is because so many people are unwilling to challenge authority.”
The leading advocacy group for jury nullification is the Fully Informed Jury Association, a nonprofit organization founded in 1989 in Montana. The group works to educate the public about jury nullification and says that juries should be informed about it as part of jury instructions. “We’re trying to overcome a lack of information, but it’s more than that,” said Kirsten Tynan, the group’s executive director. “Jurors are almost always going to be misinformed. They’re told by the court that they must follow the law as it’s given to them. “We have to educate people that what they’re being told isn’t necessarily true.”
I got into a bit of a verbal fight with my friend and colleague Professor Ric Simmons about this issue just earlier this week (and thus I love seeing him quoted on this front). Readers may not be too surprised to hear that I am generally a fan and supporter of jury nullification. Indeed, I generally believe that juries should be instructed about their power and right to nullify, though I also believe that prosecutors should be able to explain to jurors why they think broad use of nullification powers could have an array of potentially harmful societal consequences.
In this setting and in many others dealing with jury trial rights and procedures, I suspect views are often influenced by one's broader perspectives on the operation of present (and future?) criminal justice systems (both personally and professionally). I have long viewed US criminal justice systems as bloated and inefficient, and thus I have always been inclined to embrace the jury's role as a critical "democratic" check on the criminal justice work of legislative and executive branches. (The late Justice Scalia's writings in cases like Blakely and other jury-respecting rulings have reinforced and enhanced these perspectives in recent years.) My colleague Professor Simmons obviously takes a different view, and I suspect he will not be surprised to know that I believe his views are at least somewhat influenced by his own professional history before he became an academic.
"The lock-’em-up mentality for white-collar crime is misguided"
The title of this post is the subheadline of this recent Economist piece, which reviews a couple notable new books about white-collar crimes and punishments. Here are excerpts:
One thing right-wing populists and left-wing progressives can agree on is that society is too soft on white-collar crime. Conservatives abandon their admiration for business when it comes to “crooked bankers”. Left-wingers forget their qualms if locking up “corporate evil-doers”. Hillary Clinton’s line that “there should be no bank too big to fail but no individual too big to jail” would go down equally well at a Donald Trump rally.
But is society really soft on corporate wrongdoing? And would locking up bankers and businessmen and throwing away the key really solve any problems? Two new books try to inject reason and evidence into a discussion more commonly driven by emotion and hearsay: “Why They Do It: Inside the Mind of the White Collar Criminal” by Eugene Soltes, of Harvard Business School, and “Capital Offenses: Business Crime and Punishment in America’s Corporate Age” by Samuel Buell, the lead prosecutor in the Enron case, who now teaches at Duke University.
Messrs Soltes and Buell both demonstrate that America is getting tougher on business crime. Between 2002 and 2007 federal prosecutors convicted more than 200 chief executives, 50 chief financial officers and 120 vice-presidents. Those at the heart of two big corporate scandals in 2001 and 2002 received harsh treatment: Bernard Ebbers, WorldCom’s chief executive was sentenced to more than 20 years without the possibility of parole — the equivalent of a sentence for murder in many states — and Kenneth Lay, Enron’s former boss, died awaiting sentence. Between 1996 and 2011 the mean fraud sentence in federal courts nearly doubled, from just over a year to almost two years, as the average sentence for all federal crimes dropped from 50 months to 43.
America is constantly giving way to the temptation to punish white-collar criminals more severely: the Sarbanes-Oxley act (2002) and the Dodd-Frank bill (2010) both include measures designed to punish corporate types more severely. Other countries are moving in the same direction.... The global war on white-collar crime is giving rise to a new global industry: advisers such as Wall Street Prison Consultants and Executive Prison Consultants specialise in helping white-collar criminals adjust to life behind bars.
Prosecutorial zeal does not always result in convictions, but that is because prosecutors face some difficult trade-offs — including respecting the rights of some of the world’s most unpopular people.... The DoJ could bring far more individual prosecutions. But most corporate crime is the result of collective action rather than individual wrongdoing — long chains of command that send (often half-understood) instructions, or corporate cultures that encourage individuals to take risky actions. The authorities have rightly adjusted to this reality by increasingly prosecuting companies rather than going after individual miscreants.
Prosecuting firms may not have the smack of justice that populists crave: you can’t imprison a company, let alone force it to do a humiliating “perp walk” — being paraded in handcuffs in public. And the people who end up paying the fines are shareholders rather than the executives or employees who actually engaged in the misconduct. But it saves the taxpayer a great deal of money: the DoJ routinely asks firms to investigate themselves on pain of more serious punishment if they fail to do so. It also advances the cause of reform, if not retribution: companies are routinely required to fix their cultures and adjust their incentive systems.
Populists like to think that there is a bright line between right and wrong: overstep it and you should go directly to jail. But a great deal of wealth-creation takes place in the grey area between what is legal and questionable. Some of the world’s greatest business people have overstepped the mark. Bill Gates was hauled up before the authorities at Harvard University when he was a student for using computers without permission. Steve Jobs participated in backdating stock option-based compensation at Apple, including his own, in order to inflate the options’ value....
The strongest populist argument is about double standards: it is wrong to let the rich get away with a slap on the wrist while poor youths are put in prison for possessing an ounce of cocaine. Messrs Soltes and Buell have clearly demonstrated that the rich aren’t getting away with a slap. But even if they were, this would argue for reforming criminal law for the poor rather than extending the lock-’em-up mentality to the rich. Society should by all means punish white-collar criminals if they have obviously committed crimes and imposed harm. But it should resist the temptation to criminalise new businesses testing the rules. And it should certainly resist the temptation to single people out for harsh punishment simply because they are rich and successful.
A few recent related posts:
- Has DOJ's "Smart on Crime" initiative had a big impact in federal white-collar sentencing outcomes in recent years?
- Federal district judge assails prosecutors for not seeking more prison time for cooperators in government corruption cases
- Nearly four years(!?!) in federal prison for MLB scout who hacked into rival team's research and notes
Thursday, November 03, 2016
Could puppies be the "magical" elixer that can make modern correctional institutions actually correctional?
The question in the title of this post is prompted by this lengthy new local article from California headlined "California prisons struggle to get inmates to change. Are puppies the ‘magical’ answer?." The piece is about a lot more that has been going on in California prison policy and practice than just a shaggy-dog story. But the article's headline and "softer" contents gives me an excuse to post a puppy picture of the dog breed that I share my life with, and I like hearing about prisoners getting some dog-gone good puppy vibes as well. Here are excerpts:
When a pair of puppies stepped into a state prison’s highest security yard on a scorching summer day, dozens of felons fretted that the Labradors would singe their feet on hot pavement. “Pick them up! You’ve got to carry them. Watch out for their paws!” inmate Andre Ramnanan remembers his worried peers shouting at him.
Three months later, Ramnanan says the dogs still have a “magical” effect on the yard at Mule Creek State Prison in Amador County. Sometimes, they even defuse fights. “I’ve seen fights almost break out and then stop because someone says, ‘Wait, there’s a dog here,’ ” said Ramnanan, 43.
Ramnanan, serving life without parole for participating in a murder and kidnapping 24 years ago, is one of a handful of inmates enrolled in a program that gives prisoners a shot at redemption by asking them to nurture service dogs that one day will comfort wounded veterans or children with autism.
The program, called Tender Loving Canines, is among the wealth of new and restored rehabilitation courses that are popping up in California state prisons since Gov. Jerry Brown began boosting programs that help inmates prepare to re-enter society. Today, those programs are giving inmates more opportunities to study, work or pursue therapy than they were offered a decade ago when the state’s prisons were severely overcrowded.
They also provide a template for the reforms Brown is advocating with Proposition 57, his initiative to slim the state’s prison population by empowering parole boards to grant early releases for nonviolent inmates who better themselves while in confinement.Inmates and their loved ones are following the measure closely. On a recent visit to Mule Creek State Prison, some inmates said it may speed their release. “I wanted to join the program because it was helping the community, and I want to get back to the community,” said inmate Maurice Green, 37, who is participating in the service dog program. “Hopefully, if Prop. 57 passes, it’ll be next year.”...
Mule Creek State Prison contains about 3,500 inmates. It’s reserved for inmates who likely would be harmed by prisoners at other institutions, such as corrupt cops, felons who’ve separated themselves from gangs and sex offenders. It also houses inmates with special medical needs, such as prisoners who use wheelchairs. In May, it opened two new wings that will allow it to house about 1,500 more inmates. So far, the $344 million project is at half capacity while the prison hires more medical and mental health workers to staff the new wards.
Like other prisons, it was extremely overcrowded before a series of court rulings beginning in 2009 compelled the state to direct thousands of new inmates to county jails. Brown as attorney general and earlier in his term as governor unsuccessfully appealed those decisions. Since 2009, the state’s prison population has fallen from about 170,000 inmates to fewer than 129,000.
When Mule Creek was at its most-crowded, inmates slept in gymnasiums and in activity rooms, Lt. Angelo Gonzalez said. Back then, the prison didn’t have room for the rehabilitation programs that inmates are using now. “We had so many inmates that the focus was on providing the basic necessities,” said Mule Creek Warden Joe Lizarraga.
Lately, Mule Creek has seen more inmates joining anger management and conflict resolution programs that Lizarraga has been able to fund through grants that support prisons in rural communities. Statewide, Brown has escalated funding for inmate rehabilitation from $355.2 million in 2011 to $481.5 million this year.
Dogs are at the heart of two of Mule Creek’s most popular programs. In the high-security yard, five young dogs are attached to inmates around the clock in the program that trains them to become service animals. They’re stars of the yard, threading crowds of well-tattooed inmates as they follow their mindful trainers. In a lower-security wing, stray dogs from Amador County spend time with inmates until they become socialized and ready for adoption through local shelters.
Last week, inmate James Hardy had a breakthrough when a rambunctious pit bull he’s been minding suddenly started playing with a chihuahua. Until then, the two dogs had been enemies. He identifies with the strays, recognizing that he, too, could use some help figuring out how to live better outside prison.
“They came from a rescue center. They’re a lot like us. I see us like we’re rescues, too,” said Hardy, 40, of Sacramento, who has been in and out of prison for the last 20 years. He’s serving seven years for vehicle theft.
Cherie Flores, one of the service dog training instructors from Tender Loving Canines, said inmates and puppies are a good match. She visits twice a week, coaching the inmates on how to prepare the dogs for a lifetime of service. “This is amazing for them and for the dogs,” she said. “These guys have nothing but time and structure. Puppies need time and structure. This is everything for them.”
Lizarraga makes a point to spend time with the service dogs in Tender Loving Canines. Some members of his staff had reservations about putting the dogs in the prison’s highest security wing. He thought it was worth a chance, to see if the dogs would change the atmosphere. “It’s our most violent yard. What better place to put a program that had the potential to calm the yard down? It’s done a tremendous job,” he said.
Ramnanan said he joined the program in part because he wanted to “atone” for the 1992 murder that sent him to prison. In the past, he used to sit in his cell and “be angry at the world.” Lately, he pays close attention to a puppy named Amador, turning a fan on her when she pants at night. “It’s a 24-hour-a-day job,” he said. “You find an attachment and someone needs you. It’s a good feeling.”
Tuesday, November 01, 2016
Is California's parole reform initiative, Prop 57, among the most important and consequential sentencing ballot issues?
The question in the title of this post is prompted in large part by this recent Los Angeles Times article headlined "Why Gov. Jerry Brown is staking so much on overhauling prison parole." Here are excerpts (with my emphasis added for later commentary):
Few California voters likely know much, if anything, about the state Board of Parole Hearings — from the qualifications of the 12 commissioners to their success in opening the prison gates for only those who can safely return to the streets. And yet Gov. Jerry Brown’s sweeping overhaul of prison parole, Proposition 57, is squarely a question of whether those parole officials should be given additional latitude to offer early release to potentially thousands of prisoners over the next few years. “I feel very strongly that this is the correct move,” Brown told The Times in a recent interview. “I’m just saying, let’s have a rational process.”
Prosecutors, though, contend the governor’s proposal goes too far after several years of trimming down California’s prison population to only the most hardened criminals. They believe the parole board, whose members are gubernatorial appointees, already is swinging too far away from being tough on crime. “They are recommending release of people we never would have expected would have occurred so soon,” said Los Angeles County Dist. Atty. Jackie Lacey. “I’m concerned about people who really haven’t served a significant amount of time.”
In some ways, Proposition 57 is a proxy for a larger battle over prison sentences. There are sharp disagreements between Brown and many district attorneys over the legacy of California’s decades-long push for new and longer mandatory sentences, a system in which flexibility is often limited to which crimes a prosecutor seeks to pursue in court. The warring sides have painted the Nov. 8 ballot measure in the starkest of terms, a choice for voters between redemption and real danger. “We’re dealing with deep belief systems,” Brown said.
Proposition 57 would make three significant changes to the state’s criminal justice framework. It would require a judge’s approval before most juvenile defendants could be tried in an adult court — reversing a law approved by California voters in 2000. Critics believe prosecutors have wrongly moved too many juveniles into the adult legal system, missing chances for rehabilitation.
What’s most in dispute are two other Proposition 57 provisions, either of which could result in adult prisoners serving less time than their maximum sentences. Brown tacked those two provisions onto the juvenile justice measure in January. One would allow an expansion of good-behavior credits awarded by prison officials; the other gives new power to the state parole board to allow early release of prisoners whose primary sentences were not for “violent” crimes.
In an interview last week, the governor argued that his ballot measure would add a dose of deliberative thought to a process too often driven by elected district attorneys playing to the white-hot politics of sensational crimes. “Do you want the hurly burly of candidates, running for office, being the decision makers in the face of horrible headlines?” Brown asked. “Or would you rather have a quiet parole board, not now but 10 years later, deciding what's right?”
The governor’s plan, which amends the state constitution, would only allow parole after a prisoner’s primary sentence had been served — applying only to the months or years tacked on for additional crimes or enhancements. And like the current system, a governor could override any parole board decision to release a prisoner.
Critics, though, think the parole board is already too eager to approve releases. Greg Totten, district attorney of Ventura County, said he believes parole board members are judged by how many prisoners they release. “We don't have confidence that the parole board will consider our concerns about public safety or the crime victims' concerns,” Totten said. “Those hearings have become much more adversarial than they originally were.” Totten and other prosecutors warn that an influx of new requests for early release would overload parole board commissioners and send too many cases to their deputy commissioners, state civil servants whose decisions are made outside of public hearings.
Prosecutors and Brown have sparred mightily over the assertion that Proposition 57 would only expand parole opportunities for “nonviolent” felons, a term used prominently in the ballot measure’s official title and summary. In truth, the description only means that new parole opportunities wouldn’t apply to prisoners sentenced for one of 23 defined violent crimes in California’s penal code. That list includes crimes most voters would expect to see there, such as murder, sexual abuse of a child and kidnapping. But in many ways, the list is porous. Not all rape crimes, for example, are designated as “violent.” Prosecutors insist prisoners serving time for as many as 125 serious and dangerous crimes would be eligible for parole under Brown’s ballot measure. Not surprisingly, the campaign opposing Proposition 57 is replete with images of felons who prosecutors allege could be released if the measure becomes law....
Brown, whose effort is supported by probation officers and leads in most every recent statewide public poll, suggests two overarching motivations. One is the specter of potential federal court-ordered prison releases, less likely now that massive prison overcrowding has abated after efforts to reduce penalties for less serious crimes and divert low-level offenders to county jails. Still, the governor insists that Proposition 57 is a more thoughtful way to reduce the prison population than what could some day be chosen by federal judges.
The other, to hear him tell it, is an effort to undo some of what he did in the 1970s in pushing California toward more fixed, inflexible sentences for a variety of crimes. Brown said he now believes that many convicted felons are best judged not at the time of sentencing, but once they have had a chance to change their lives. “It allows flexibility,” the governor said. “I think this case is irrefutable to anyone with an open mind.”
The sentences I have highlighted above provide some account for why I think the Prop 57 vote is potentially so important, and not just in California. If California voters strongly support this parole reform initiative (and do so, perhaps, will also supporting the preservation of the death penalty in the state), elected official in California and perhaps other states may start to feel ever more comfortable that significant non-capital sentencing reforms have significant public support even during a period in which a number of prominent folks are talking a lot about an uptick in crime. It also strikes me as quite significant that Gov Brown is still talking about the impact of the Supreme Court's Plata ruling about California prison overcrowding and justifying his reform efforts on these terms.
I have previously highlighted in this post why I think an Oklahoma ballot initiative on sentencing reform is similarly worth watching very closely. (That post from September was titled "Why Oklahoma is having arguably the most important vote in Campaign 2016 for those concerned about criminal justice reforms.") I expect that next week's post-election coverage of criminal justice issues will focus particularly on the results of big death penalty and marijuana reform votes. But I believe folks distinctly concerned about modern mass incarceration should be sure to examine and reflect upon the outcomes of these two non-capital, non-marijuana reform ballot initiatives in California and Oklahoma.
November 1, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)
Sunday, October 30, 2016
"The $3.4 Trillion Mistake: The Cost of Mass Incarceration and Criminalization, and How Justice Reinvestment Can Build a Better Future for All"
Over the last three decades, the U.S.’s emphasis on mass incarceration and criminalization policies wasted $3.4 trillion that could have instead been used to create living-wage jobs, improve educational opportunities for youth, and hire mental health and drug treatment counselors, according to a new report released today by three advocacy organizations. The report, “The $3.4 Trillion Mistake: The Cost of Mass Incarceration and Criminalization, and How Justice Reinvestment Can Build a Better Future for All,” provides an analysis of the country’s investments in the justice system and their impact on federal, state, and local budgets, and on individual taxpayers. Authored by Communities United, Make the Road New York, and Padres & Jóvenes Unidos, the report includes state-by-state data and details on alternative investments that would more effectively address the roots causes of crime.
Key report findings show that, from 1982 to 2012, the U.S. increased its spending on the justice system from $90 billion annually to nearly $297 billion, a 229 percent increase. Cumulatively, over that 30-year period, the U.S. spent $3.4 trillion more on the justice system than it would have if spending had remained steady since 1982.
“The ‘tough-on-crime’ approach and the ‘War on Drugs’ have not substantially improved public safety, but they have resulted in nearly eight million U.S. residents that are either in prison, in jail, on probation or parole, or otherwise under control of the justice system,” said Ricardo Martinez, Co-Director of Padres & Jóvenes Unidos. “That amounts to one out of every 40 people, which is a clear indication that our justice system is vastly oversized.”
Report authors found that the flawed spending impacted the country in the following ways:
• All 50 U.S. states accumulated billions of dollars in surplus justice spending over that time, ranging from $2.2 billion for North Dakota to $505 billion for California.
• In 1982, each household in the U.S. paid an average of $1,076 for our justice system. By 2012, each household was paying an average of $2,557, almost $1,500 more.
• Between 1983 and 2012, the justice system added an additional 1.2 million police officers, corrections employees, prosecutors, and other employees to our publicly funded workforce, nearly doubling its number of personnel.
• By far the largest category of justice spending — at 45 percent of the total — is police spending. It has also increased over time more than the other categories. For example, in 2012, the U.S. spent $85 billion more on police than it did in 1982.
• The impact of over-investment in the justice system has been particularly severe in communities of color. For example, approximately 1 in 18 Black residents, and 1 in 34 Latino residents, were under the control of the justice system in 2013 (compared to 1 in 55 White residents).
"To build safe and healthy communities, we need living-wage jobs, affordable housing, and access to quality education," said Zion Harley, youth leader at Make the Road New York. "It is time for us prioritize these types of community investments and stop the massive over-spending on the criminalization and incarceration of people of color and immigrants."
The report suggests that, instead of spending an extra $206 billion per year on the justice system, the U.S. could have created healthier and safer communities through other investments, such as:
• Creating over one million new living-wage jobs: $114B
• Increasing spending by 25 percent at every K-12 public school in the country: $159B
• Providing every household living in poverty with an additional $10,000 per year in income or tax credits: $87B
• Funding one million new social workers, psychologists, conflict mediators, mental health counselors, and drug treatment counselors to address public health/safety issues: $67B
• Creating a universal pre-K system for all 3- and 4-year-olds that would be free for lowincome families and affordable for middle-class families: $20B...
Key recommendations in the report suggest the following:
• Inclusive efforts at the federal, state, and local levels to reduce all four areas of surplus justice spending (police, corrections, judicial/legal, and immigration enforcement) and reinvest those funds in meeting critical community needs;
• The creation of a new, federal Justice Reinvestment Fund to dramatically expand the support and incentives for states and localities to engage in comprehensive justice reinvestment efforts; and
• State-level support and incentives for localities governments to engage in comprehensive justice reinvestment efforts.
Mizzou State Representative wants to consider showing repeat sex offenders to execution chamber
As reported in this local article, headlined "State Rep. wants death penalty as option for repeat sex offenders," a local elected official has a notable idea for punishing certain sex offenders. Here are the details:
It’s the one issue in Jefferson City that State Representative Randy Pietzman says nobody likes to talk about. “This is not a popular topic to talk about if you’re just trying to get re-elected,” he said. But that’s not going to stop him from tackling it head on because he says it concerns the safety of every Missouri child. “We need to change something. We need to do something to curb this problem,” he said.
And it’s especially relevant for Lincoln County, where the Republican is running unopposed for his second term this November. The rural county, about an hour to the northwest of St. Louis, has a disproportionately high number of sex offenders and sex crimes against children. “If you compare us with other counties in the surrounding area, per capita, we have substantially more sex offenders,” said Detective Sean Flynn with the Lincoln County Sheriff’s Office. “There’s something attracting them here,” Pietzman said.
But whatever the reason for the unwanted popularity, it’s having an impact on multiple levels. “It seems these crimes are impacting people across the socioeconomic spectrum,” Flynn said.... “It’s impacted the department in a way that my time is monopolized by this. Really, we’re at the point where we need more people to investigate,” Flynn said.
And some in law enforcement go a step further to say the situation might be beyond repair. Captain Michael Merkel with the Lincoln County Sheriff’s Office said, “I don’t think stopping it is an option. I think slowing it down is something we could do.” One way of going about that, he said, is to strengthen the penalties statewide for what’s considered to be some of the most heinous crimes imaginable. “It’s not acceptable that somebody can pass a bad check and be punished more harshly than someone who has victimized a child,” Merkel said.
Capt. Merkel also suggests improving their ability to investigate child sex crimes. Right now, detectives in Missouri can only interview juvenile victims if their parents give permission. And the problem? “What we run into is we have a parent or family member who’s a suspect. And they’re the only ones who can authorize the interview,” Merkel explained.
It’s a loophole in state law that Rep. Pietzman said could help his county, and the state, if it was closed. “We’re talking about our kids. If the punishment doesn’t match the crime, then it’s going to keep continuing,” he said.
That’s why, following our initial report, Pietzman is working on a number of reforms, including one that would make the death penalty a possible punishment for repeat offenders. “That seems cruel when you think about it," he said, "but you got to think about what these guys have done. We’re talking about grown men having sex with kids as young as 3- or 4-years-old.”
There are several cases and states that have pushed for similar measures, but capital punishment in America right now is almost exclusively reserved for the crime of murder. Pietzman said at the very least, he hopes to start a conversation in the legislature that some in law enforcement say is long overdue.
I am eager to help State Representative Randy Pietzman start this conversation about making repeat sex offenders eligible for the death penalty. The first critical point in such a conversation, however, has to be about the Supreme Court's Kennedy ruling which seemingly declared the death penalty unconstitutional for any and all crimes of rape. An argument might be developed that the Kennedy ruling applied formally addressed a first-offense child rapist, and so perhaps a capital statute focused on only the worst of the worst repeat child rapists could be legally viable (and, of course, because Eighth Amendment doctrines evolve perhaps Eighth Amendment precedents have less stare decisis force).
Also important to consider here is the concern expressed by Capt. Merkel about challenges he faces investigating child sex crimes. I suspect and fear that making some sex offenders eligible for the death penalty could actually end up aggravating rather than mitigating this problem as family members fearing a capital prosecution may be uniquely unwilling to cooperate with authorities.
Saturday, October 29, 2016
"Constitutional Liberty and the Progression of Punishment"
The title of this post is the title of this notable new paper authored by Robert Smith and Zoe Robinson now available via SSRN. Here is the abstract:
The Eighth Amendment’s prohibition on cruel and unusual punishment has long been interpreted by scholars and judges to provide very limited protections for criminal defendants. This understanding of the Eighth Amendment claims that the prohibition is operationalized mostly to prevent torturous methods of punishment or halt the isolated use of a punishment practice that has fallen into long-term disuse.
This Article challenges these assumptions. It argues that while this limited view of the Eighth Amendment may be accurate as a historical matter, over the past two decades, the Supreme Court has incrementally broadened the scope of the cruel and unusual punishment clause. The Court’s contemporary Eighth Amendment jurisprudence — with its focus on categorical exemptions and increasingly nuanced measures of determining constitutionally excessive punishments — reflects an overt recognition that the fundamental purpose of the Eighth Amendment is to protect vulnerable citizens uniquely subject to majoritarian retributive excess.
Animating these developments is a conception of constitutional liberty that transcends the prohibition on cruel and unusual punishment. Indeed, 2015’s same-sex marriage decision, Obergefell v. Hodges, reflects a similar trajectory in the Court’s substantive due process jurisprudence. Taken together, these doctrinal developments illustrate a concerted move to insert the Court as the independent arbiter of legislative excesses that undermine the basic right to human dignity by virtue of unnecessarily impinging upon individual liberty. Ultimately, these liberty-driven developments signal new possibilities for the protection of defendant rights in a variety of contemporary contexts, including juvenile life without parole for homicide offenses, life without parole for non-violent drug offenses, the death penalty, certain mandatory minimum sentences and the prolonged use of solitary confinement.
Friday, October 28, 2016
"Should 25-Year-Olds Be Tried as Juveniles?"
The question in the title of this post is the headline of this new lengthy New Republic article, which includes these excerpts:
Over the past year, several states — including Vermont, Illinois, New York, and Connecticut — have debated laws that would change how the justice system treats offenders in their late teens and early twenties. It remains the case that in 22 states, children of any age — even those under ten — can be prosecuted as adults for certain crimes. “Raise the Age” campaigns across the country are pushing for legal changes in order to treat all offenders under 18 as juveniles. But some advocates and policymakers are citing research to argue 18 is still too young, and that people up to the age of 25 remain less than fully grown up.
Some of the most compelling evidence comes via magnetic resonance imaging, or MRI. In 2011, brain researchers Catherine Lebel and Christian Beaulieu published a study of 103 people between the ages of five and 32, each of whom received multiple brain scans over the course of six years. The researchers were looking for changes in white brain matter, a material that supports impulse control and many other types of cognitive functioning.... Altogether, the research suggests that brain maturation continues into one’s twenties, and even thirties....
Researchers are using the term “post-adolescence” or “extended adolescence” to describe this period of development in one’s twenties and early thirties. Social change is as important as biological change in understanding why some people in this age group are drawn to crime. Individuals who are “disconnected” — neither working nor in school — are more likely to get in trouble with the law. While fewer young women are disconnected today than in previous decades, the opposite is true for young men....
Experts used to believe that “adult onset” criminals, or those who get in trouble for the first time in their twenties or older, were more likely than juvenile offenders to come from affluent backgrounds, and to have higher intelligence. New research questions those assumptions....
If people in their twenties are a lot like adolescents socially and biologically, should they really be considered full adults under the law? Many advocates who work directly with this population say no. “For many years, the idea of how to achieve public safety with this group was you want to lock them up, protect the community by not having them around,” said Yotam Zeira, director of external affairs for Roca, a Massachusetts organization that provides counseling, education, and job training to 17- to 24-year-old male offenders. “The sad reality is that after you lock them up, nothing gets better. Public safety is not really improved. Prosecutors know they are prosecuting, again and again, the same people.”...
While politically palatable, young adult prisons may not be all that successful in decreasing reoffending. Research shows that even detention in a juvenile facility is “criminogenic,” meaning it makes it more likely that a person will reoffend, compared to a juvenile who committed a similar crime, but was not incarcerated.
Beyond politics, one of the challenges of asserting that 18- to 25-year-olds are not full adults is that science shows some people in this age group are much more mature than others, with more static brains. “You can’t look at a brain scan from someone you don’t know and say that person is 18,” said Lebel, the brain researcher. “You can pick out any age, whether it’s five or 30, and you see people are distributed over a wide range.”
Moffitt, the psychologist, agrees that the policy implications of the new research are far from clear. “In our justice system, it has to be the same rule for everyone for it to be just and fair,” she said. “There will always be the sort of very serious, early onset kind of offenders that ... will have a crime career as a lifestyle.” There is also a “larger group of young people who are milling around, being young, getting in trouble, annoying everyone. But young people have always done that. You don’t want them to get a criminal record that prevents them from getting a job.” The problem, Moffitt added, is that “as long as you make a cut point based on age, you are treating both groups the same.”
Wednesday, October 26, 2016
Has DOJ's "Smart on Crime" initiative had a big impact in federal white-collar sentencing outcomes in recent years?
It has now been more than full three years since then-Attorney General Eric Holder made his historic speech to the American Bar Association (reported here and here) about excessive use of incarceration in the United States. In that speech, AG Holder announced the US Justice Department's "Smart on Crime" initiative while making the case that "too many Americans go to too many prisons for far too long and for no good law enforcement reason" and that "widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable." At the time, and subsequently as a result of officials' comments (including 2015 remarks by then AG Holder and 2016 statements by now AG Loretta Lynch and Deputy AG Sally Yates), much has been made about the impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of federal drug offenders.
But recently, as the question in the title of this post suggests, I have been thinking about, and wondering if there is a good way to assess, the possible impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of white-collar offenders. Critically, as I have noted to a number of courts in a number of ways in a number of settings, DOJ's public "SMART on CRIME" materials uses a lot of language that applies to, and should impact, how non-violent white-collar offenders are sentenced. For example, DOJ has stressed the importance of alternatives to incarceration for all non-violent offenders while advocating a "shifting away from our over-reliance on incarceration" to reflect the reality that "[f]or many non-violent, low-level offenses, prison may not be the most sensible method of punishment." And AG Holder's speech was not only focused on drug offenses or offenders when he emphasized excessive incarceration "comes with human and moral costs that are impossible to calculate," and when he stressed that "the judiciary [can] meet safety imperatives while avoiding incarceration in certain cases."
Notably, as some links above highlight, DOJ officials have in 2015 and 2016 documented and promoted how DOJ's "Smart on Crime" initiative has impacted the case processing and sentencing of federal drug offenders. But, perhaps unsurprisingly in these political times, DOJ officials have not said a word (at least that I have seen) about how DOJ's "Smart on Crime" initiative might be impacting white-collar cases (or really any other non-drug cases).
Against that backdrop, I took another look this week at recent US Sentencing Commission data published through its great Quick Facts series on Theft, Property Destruction, & Fraud and Tax Fraud. These two reports seem to cover, roughly speaking, the pools of white-collar cases I have in mind that might be readily impacted by "Smart on Crime" talk about reduced reliance on lengthy terms of imprisonment. And, perhaps significantly, two notable parallel sentencing "trends" were reported in these USSC documents:
- During the past five years, the rate of within range sentences for §2B1.1 offenders has steadily decreased (from 54.4% in fiscal year 2011 to 42.4% in fiscal year 2015).
- During the past five years, the rate of within range sentences for tax fraud offenders has decreased (from 37.8% in fiscal year 2011 to 25.8% in fiscal year 2015).
These two data notes are not, of course, conclusive qualitative proof that DOJ's "Smart on Crime" initiative has had a big impact on federal white-collar sentencing outcomes in recent years. But it does suggest something is helping to "move the sentencing needle" in these kinds of cases in recent years. Relatedly, I would love to hear in the comments or some other way any and all reports (dare I say "qualitative" evidence) from white-collar sentencing practitioners concerning whether they think what AG Holder said and DOJ did as part of its "Smart on Crime" initiative back in 2013 is having a continual tangible impact on case processing and sentencing in non-violent fraud and other white-collar cases.
October 26, 2016 in Criminal justice in the Obama Administration, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3)
"Democratizing Criminal Law: Feasibility, Utility, and the Challenge of Social Change"
The title of this post is the title of this new paper authored by Paul Robinson now available via SSRN. Here is the abstract:
The notion of “democratizing criminal law” has an initial appeal because, after all, we believe in the importance of democracy and because criminal law is so important – it protects us from the most egregious wrongs and is the vehicle by which we allow the most serious governmental intrusions in the lives of individuals. Given criminal law’s special status, isn’t it appropriate that this most important and most intrusive governmental power be subject to the constraints of democratic determination?
But perhaps the initial appeal of this grand principle must give way to practical realities. As much as we are devoted to democratic ideals, perhaps the path to a better society is one that must recognize inherent weaknesses in the system of democratic action, which necessarily relies upon the judgments of common people. Perhaps, when dealing with things as important as doing justice and preventing crime, we must look instead to experts, such as criminologists and moral philosophers. Perhaps the path to a better society is one that, in this instance, should skirt democratic preferences as needed?
More specifically, consider some of the realities that might derail a movement toward democratizing criminal law: First, perhaps there is no such thing as a shared community view of justice on which to base a criminal law, but simply an endless list of individual disagreements. There can be no such thing as a criminal code that reflects community views if there is no such thing as a community view. Second, even if there were a shared community sense of justice, perhaps it is brutish and draconian, something born of anger and suspicion and not something that even the people themselves feel should be enshrined in public principles of liability and punishment. Third, even if community views of justice are in fact enlightened, something that people would be proud to enshrine in public law, perhaps they are not the path to a society with less crime. That is, perhaps the path to effective crime control is not through justice -- either the community’s view of it or the moral philosopher’s view -- but through more instrumentalist crime-control mechanisms, such as general deterrence or incapacitation of the dangerous. And finally, even if relying upon the community’s views of justice did turn out to be a mechanism of effective crime-control, wouldn’t such a system condemn us to live under the status quo of current community views, when history teaches us that a society can improve itself and the lives of its members only by moving ever forward in refining its judgments of justice?
Thus, this brief essay will take up these four questions: Is there any such thing as the community’s views of justice? Are the community’s views of justice brutish and draconian? Why should a criminal law concerned with crime-control care what the community thinks is just? Should the criminal law ever deviate from the community’s shared judgments of justice?
The Opportunity Agenda produces huge report on "Transforming the System: Criminal Justice Policy Solutions"
The Opportunity Agenda, which is a project of Tides Center and calls itself a "social justice communication lab," has just released this huge new on-line report (which is also available as a pdf here) under the title "Transforming the System: Criminal Justice Policy Solutions." Here is the main introduction and the headings for links to different sections of this report:
Our criminal justice system must keep all communities safe, foster prevention and rehabilitation, and ensure fair and equal justice. But in too many places, and in too many ways, our system is falling short of that mandate and with devastating consequences. The United States is saddled with an outdated, unfair, and bloated criminal justice system that drains resources and disrupts communities.
People of color, particularly Native American, black, and Latino people, have felt the impact of discrimination within the criminal justice system. Many immigrants experience mandatory detention, racial profiling, and due process violations because of laws and policies that violate their human rights—and the principles of equal justice, fair treatment, and proportionality under our criminal justice system. The good news is that we as a nation are at a unique moment in which there is strong public, bipartisan support for criminal justice reform; we see positive policy developments in many parts of the country; and mass action and social movements for change are growing, including the Movement for Black Lives. More is needed, however, to move from positive trends to transformative, lasting change.Criminal Justice Policy Solutions
- Promote Community Safety through Alternatives to Incarceration: Our criminal justice system should ensure that all individuals feel safe and secure in their communities.
- Create Fair and Effective Policing Practices: To work for all of us, policing practices should ensure equal justice and be supported by evidence.
- Promote Justice in Pre-Trial Services & Practices: The right to due process is a cornerstone of our commitment to freedom and fairness.
- Enhance Prosecutorial Integrity: Prosecutors represent the government, and therefore must reflect the highest levels of integrity and ethics in their work.
- Ensure Fair Trials and Quality Indigent Defense: Every accused person is entitled to a fair trial. Indigent defendants have a constitutional right to competent representation at trial.
- Encourage Equitable Sentencing: People convicted of crimes should receive fair sentences. These sentences should reflect the severity of the crime and be administered in a fair manner.
- Ensure Decent Detention Conditions: Decent, rehabilitative prisons are a basic human right and crucial to the successful reintegration of formally incarcerated people.
- Require Equitable Parole and Probation: Parole and probation practices should be fair and consistent. They should be used as a tool to allow accused persons to safely remain in their communities.
- Foster Successful Reintegration: Most Americans agree that after completing a criminal sentence, released people should be given an opportunity to successfully reintegrate into their communities.
- Foster an Environment for Respecting Children's Rights: We must adopt policies that ensure children reach their full potential and are not placed off track for childhood mistakes.
- Eradicate the Criminalization of Sex, Gender, & Sexuality: We all should have freedom to live without fear of criminalization because of our expressed sex, gender or sexuality.
- Eliminate the Criminalization of Poverty: Instead of increasing opportunities to succeed, our law too often funnels low-income people into the criminal justice system.
- Eliminate the Criminalization of Public Health Issues: The criminal justice system is too often used as a cure-all for social problems that are better suited to social services and public health responses.
- Promote Fairness at the Intersection of Immigration and Criminal Justice: Everyone is entitled to have their human rights respected regardless of immigration status.
- Public Opinion Report: A New Sensibility: This report is based on a review of about fifty public opinion surveys and polls, most of them conducted between 2014 and June 2016.
I suspect most, if not all, of this report's various sections will be of interest to readers. And I hope it is useful for all to see what is listed as 10 action items under the "Encourage Equitable Sentencing" section. That section starts this way and they has these 10 "Solutions and Actions to Encourage Fair Sentences":
We all want a criminal justice system that treats people fairly, takes a pragmatic and responsible approach, and ultimately, keeps us safe. When we’ve reached the point of deciding to deprive someone of their liberty, we have to be particularly fair and responsible and consider all options. Sentences should consider a range of factors and reflect the severity of the crime. We owe it to ourselves, our justice system, and to those being imprisoned to ensure that our sentencing practices are thoughtful and fair. Nonetheless, the explosion of the American prison population is largely due to sentences that are disproportionate to the severity of crimes. Prisons and jails are filled by many people who pose no threat to their communities. Laws that impose mandatory minimums contribute to mass imprisonment. Sentencing laws should be reformed to require transparency and mandate equitable practices that ensure that sentences are appropriate to the particular circumstances of an offense.
1) Repeal “Truth-in-Sentencing” and “Three-Strikes” Law...
2) Repeal Mandatory Minimums...
3) Use Alternatives to Incarceration...
4) Prohibit Incarceration for Failure to Appear...
5) Revise Sentencing Guidelines...
6) Commit to Cutting Incarceration in Half...
7) Collect Data...
8) Train Judges on Implicit Bias...
9) Appoint Judges from Diverse Backgrounds...
10) Evaluate Ability to Pay
October 26, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)
Tuesday, October 25, 2016
Great back-and-forth discussion at RealClearPolicy over crime policy ideas "that should guide the next presidential administration's agenda"
During an election cycle characterized by bombast, sound bites, and sensationalism, it’s easy to forget what we, as voters, are being asked to decide: What are the best policies for our country? What concrete proposals and legislative frameworks should guide the next presidential administration?
We at RealClearPolicy are creating a conversation among the partisans to help answer that question. In this special series, we’ve asked 12 leading authorities from both Left and Right to make their best case for the policy ideas that should guide and influence the next administration. Between now and Election Day, we will publish 24 articles, focusing on 12 major policy issues from differing points of view — from education policy and economic growth to health-care reform and energy policy — including a response by each author to the opposing position and a recommended reading list. This is a rare chance to hear top thinkers try out their best policy ideas — and respond to the strongest objections — in a public forum leading up to the election.
The series so far has covered four issue, and I was very pleased to see the third issue covered was "Crime" and it was covered via these entries:
PART 3: CRIME
In Part 3, Heather Mac Donald, Thomas W. Smith fellow at the Manhattan Institute, squares off against Danyelle Solomon, Director of Progress 2050 at the Center for American Progress:
Heather Mac Donald, "Telling the Truth About Crime and Policing."
Danyelle Solomon, "Time to Fix Our Failing Criminal-Justice System."
Heather Mac Donald and Danyelle Solomon, "Mac Donald v. Solomon: The Authors Respond."
There is so much that is interesting and effective in this back-and-forth that I am just going to encourage everyone to read the commentaries in full and also urge readers to share in the comments their views on the most important crime policy ideas to guide the next Administration.
UPDATE: I just notices that Andrew King over at Mimesis Law has this extended new commentary criticizing what both Heather Mac Donald and Danyelle Solomon say in these dueling commentaries. Here is how his commentary on the commentaries starts and finishes:
Crime has been a big issue in this presidential campaign. But the issues of crime swirling around the campaign has not been about policy—it’s been about the candidates. Hillary Clinton has had her email issues, and the detestable-yet-legal bribery surrounding the Clinton foundation. Donald Trump has been accused of sexual assault, and he has threatened his critics with re-criminalizing libel.
Besides caring a lot about who knows what about Aleppo, the debates and the recent campaigning has been relatively free of policy discussions. In an effort to interject some policy into the political dialog, Real Clear Polics asked Heather McDonald and Danyelle Solomon to discuss crime policy and represent the right and left respectively. Perhaps, not surprisingly to J.D.s who do policy work for think tanks, they begin with hyperbole....
The next President will have to budget for a trillion dollars and set policy for tens of thousands prosecutors, special agents, and support staff. And there are serious criminal law issues right now that deserve careful consideration. But it doesn’t look like either candidate will be the President to do that. The only solace is that we get to pick one of them. In the meantime, we can expect more of each side talking past the other.
Monday, October 24, 2016
Is the death penalty in the United States really "nearing Its end"?
The question in the title of this post is prompted by this notable new New York Times editorial headlined "The Death Penalty, Nearing Its End." Here is the full text of the editorial:
Although the death penalty is still considered constitutional by the Supreme Court, Americans’ appetite for this barbaric practice diminishes with each passing year. The signs of capital punishment’s impending demise are all around.
For the first time in nearly half a century, less than half of Americans said they support the death penalty, according to a Pew Research poll released last month. While that proportion has been going down for years, the loss of majority support is an important marker against state-sanctioned killing.
At the same time, executions and new death sentences are at historic lows, and each year they go lower. In 2015 only 49 new death sentences were handed down, the lowest one-year total since the Supreme Court reinstated capital punishment in 1976.
Since there were about 14,000 murders around the country last year, it’s easy to imagine that the small number of newly condemned people shows that the justice system is focusing on the “worst of the worst.” But that’s wrong. In fact the crimes of the people sentenced to death are no worse than those of many others who escape that fate. Rather, nearly all of last year’s death sentences came from a tiny fraction of counties with three common features: overzealous prosecutors; inadequate public defenders; and a pattern of racial bias and exclusion. This was the key finding of a two-part report recently issued by the Fair Punishment Project at Harvard Law School.
Even in the most death-friendly counties, public support appears to be fading. In two of the worst — Duval County in Florida and Caddo Parish in Louisiana — local prosecutors lost elections at least partly due to voters’ concerns about their stance on the death penalty. In other counties around the country, prosecutors are finding that aggressive advocacy for death sentences isn’t the selling point with the public that it once was.
In some of the biggest states, death-penalty systems are defunct or collapsing. Earlier this month, the Florida Supreme Court struck down a terrible state law that allowed nonunanimous juries to impose death sentences — increasing the likelihood that innocent people and those with intellectual or mental disabilities would be condemned. A large number of Florida’s 386 death-row inmates could now receive new sentencing trials, or have their sentences thrown out altogether.
In California, which hasn’t executed anyone since 2006 even though more than 740 inmates sit on death row, voters will decide in November whether to eliminate capital punishment for good. A similar ballot initiative in 2012 was narrowly defeated. In 2014, a federal judge ruled that the state’s decades-long delays in capital cases violated the Eighth Amendment’s ban on cruel and unusual punishment. (The decision was overturned by an appeals court on technical grounds the following year.)
While capital punishment is used rarely and only in some places, only a definitive ruling from the Supreme Court will ensure its total elimination. How close is the court to such a ruling? In recent dissenting opinions, three of the justices — Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor — have expressed deep misgivings about the death penalty’s repeated failure to meet the requirements of due process and equal protection. Justice Breyer has said it is “highly likely that the death penalty violates the Eighth Amendment,” and has called for the court to consider whether it is constitutional at all.
The death penalty has escaped abolition before, but there are no longer any excuses: The nation has evolved past it, and it is long past time for the court to send this morally abhorrent practice to its oblivion.
I wonder if anyone who is a strong supporter of capital punishment will write (and get published) a response to this editorial which might be headlined something like "The Death Penalty, Poised for a Big Comeback." That response might highlight that, according to polls in deep blue California, voters there are seemingly going to provide "majority support" for making more efficient in California "state-sanctioned killing." That response might highlight that, in swing state Ohio, executive officials have been working extra hard to get the state's machinery of death operative again and have execution dates scheduled for nearly two dozen condemned murderers in 2017 and 2018. That response might highlight that, in swing state Florida, the state legislature has been quick and eager to retain and revise its death penalty statutes every time a court has found constitutional problems with its application. That response might highlight that, in deep blue Massachusetts, a federal jury in 2015 wasted little time in deciding that “worst of the worst” capital defendant Dzhokhar Tsarnaev should be condemned to die for his crime. And that response might highlight that, in the most liberal national criminal justice administration of my lifetime, federal prosecutors of the Obama Administration were seemingly eager to pursue capital charges against the Charleston Church shooter Dylann Roof.
I could go on and on (mentioning, inter alia, developments in Alabama, Oklahoma, Nebraska and elsewhere), but my main point here is highlight the critical reality that the description of "death-penalty systems [as] defunct or collapsing" is largely a product of effective litigation by abolitionists and the work of courts, not really a reflection of a sea-change in public opinion or radical changes in the work of most legislatures and prosecutors in key regions of the United States. The NYTimes editorial board my be right that we may soon see litigation by abolitionists achieve the ultimate success in the courts by having the Justices of the Supreme Court declare the death penalty per se unconstitutional. But, absent some surprising political and social developments over the next few years, would-be abolitionists ought to be careful about counting chickens too soon.
October 24, 2016 in Baze and Glossip lethal injection cases, Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
"Autonomy and Agency in American Criminal Process"
The title of this post is the title of this intriguing new short paper now available via SSRN authored by the always intriguing David Sklansky. Here is the abstract:
This is an essay about the interaction of two assumptions that shape the way fairness is pursued in American criminal procedure. The first assumption is that fairness is best advanced through a series of procedural rights that defendants can invoke or waive at their discretion. The second assumption is that the choices made by defense attorneys can fairly be attributed to their clients.
The first of these assumptions reflects a strong national commitment to individualism; the second reflects a heavy reliance on lawyers to safeguard defendants’ interests. Both reflect a deeply rooted distrust of government. Each of these two assumptions is defensible, and each relates to fundamental aspects of the national political culture. Taken together, though, they have narrowed what fairness means in American criminal adjudication; they combine with a kind of negative synergy, making each harder to defend than it might be without the other.
Sunday, October 23, 2016
"Punishment Theory for the Twenty-First Century: The Need to Replace Retributive and Mixed Theories"
The title of this post is the title of this notable new paper authored by Michael Tonry now available via SSRN. Here is the abstract:
The retributive conception of punishment as a process for censuring blameworthy conduct provides an important element of a complete theory of punitive justice, but by itself is not enough. Nor are “mixed” theories that attempt to reconcile traditional retributive and consequentialist elements. In the abstract, if punishment were unidimensional and based solely on the offenses of which offenders were convicted, they should be censured, and punished, precisely as much as they deserve relative to the censure and punishment of other offenders who commit the same and different offenses. All that would be needed is a sufficiently discriminant ordinal scale of offense seriousness tied to proportionate punishments.
Punishment, however, cannot be unidimensional, as recent exploratory efforts to develop principled accounts of sentencing of individuals convicted of multiple offenses show. A complete theory of punitive justice must also take account of principles, values, and goals besides blameworthiness and crime prevention. These include fairness, equality, and human dignity, but not merely as side constraints. A conception of punishment based on blameworthiness, or blameworthiness and prevention, can be no more than one among several interacting normative frameworks governing just punishment of convicted offenders.
Friday, October 21, 2016
New Gallup poll reports notable trends in "tough-on-crime" public polling perspectives
This new Gallup item, headlined "Americans' Views Shift on Toughness of Justice System," details the results of its latest annual Gallup poll on on crime and punishment opinions. Here are the highlights:
Americans' views of how the criminal justice system is handling crime have shifted considerably over the past decade. Currently, 45% say the justice system is "not tough enough" -- down from 65% in 2003 and even higher majorities before then. Americans are now more likely than they have been in three prior polls to describe the justice system's approach as "about right" (35%) or "too tough" (14%).
Incarceration rates in the U.S. have soared over the past few decades, and political leaders, justice officials and reform advocates have sought criminal justice reform as a result. With this, Americans' views of the criminal justice system have shifted with the national conversation, with less than a majority now saying the system is "not tough enough." Although considerably higher than in the past, relatively few believe the system is "too tough."
Views of the justice system's toughness vary across racial and political party lines. The majority of Republicans and Republican-leaning independents say it is "not tough enough" (65%), with most of the rest describing it as "about right" (30%). Democrats and Democratic-leaning independents, on the other hand, are most likely to say the system is "about right" (42%), with the rest dividing about evenly between saying it is "too tough" (22%) or "not tough enough" (29%).
A majority of whites (53%) say the system's handling of crime is "not tough enough," while a third (32%) say it is "about right." One in 10 whites say the system is "too tough." Nonwhites -- who as a group make up a disproportionate percentage of the U.S. incarcerated population -- are more than twice as likely as whites to say the system is "too tough" (23%). They are also more likely than whites to say it is "about right" (40%). Meanwhile, 30% of nonwhites say the system's handling of crime is "not tough enough."
Against a backdrop of bipartisan efforts in Congress to reform drug sentencing in 2016, 38% of U.S. adults describe guidelines for sentencing of people convicted of routine drug crimes as "too tough." A slightly smaller percentage say they are "not tough enough" (34%), while a quarter say they are "about right" (25%). Fifty percent of Democrats say drug crime sentencing guidelines are "too tough" -- twice as high as the percentage of Republicans (26%) who say the same. Republicans are more likely than Democrats to describe drug crime sentencing as "not tough enough" (47%).
Differences in views between whites and nonwhites are less pronounced on drug crime sentencing guidelines compared with their views of the criminal justice system's handling of crime more generally. Both whites and nonwhites have sizable percentages, ranging from 21% to 39%, of those who describe drug crime sentencing guidelines as "too tough," "not tough enough" or "about right."
Americans' views about the toughness of the criminal justice system have clearly shifted in recent decades, with less than a majority now saying the system is "not tough enough" and more Americans describing it as "about right" or "too tough." Although more than in the past believe the system is overly tough, this view is still held by a relatively small minority. U.S. adults are much more likely, however, to describe drug crime sentencing guidelines as "too tough" compared with their opinions of the system's handling of overall crime, and this is the case among both racial and political party groups.
The folks over at Crime & Consequences have these two notable posts discussing these new Gallup data (though I cannot help but note they did not comment on other recent Gallup polling data reporting record-high majoritarian support for the legalization of marijuana):
Thursday, October 20, 2016
Local Montana judge being assailed for short jail sentence given to father who raped 12-year-old daughter
The latest controversially lenient sexual offense sentencing garnering social and traditional media attention comes from Montana, and this Washington Post article provides some of the notable details under the headline "Father who ‘repeatedly raped his 12-year old daughter’ gets 60-day sentence. Fury erupts." Here are excerpts:
In the case of Judge John McKeon, as of early morning Wednesday, almost 20,000 people had signed a Change.org petition calling for his impeachment for the 60-day sentence he gave a Glasgow, Mont., man who pleaded guilty to repeatedly raping his prepubescent daughter. “A father repeatedly raped his 12-year old daughter,” Deputy Valley County Attorney Dylan Jenson said during an Oct. 4 sentencing hearing. “It’s time to start punishing the judges who let these monsters walk our streets,” read the petition.
Prosecutors had recommended a mandatory 25-year sentence, 100 years with 75 suspended, which is what state law calls for. Instead, though, Judge McKeon handed down a far lighter sentence: a 30-year suspended prison sentence, which means the man will only serve it if he fails to meet the conditions of his probation.
Among those conditions, which McKeon called “quite rigorous,” was the requirement for the man to register as a sex offender, the Glasgow Courier reported. He also cannot access pornography and has limited access to the Internet. In addition, the man will serve 60 days in jail, but McKeon gave him credit for the 17 days he already served, meaning he’ll only spend another 43 days in jail....
In most of these controversial cases, the judges under siege tend to remain silent. What makes McKeon’s case unusual is that he has chosen to defend himself in public. In an email to the Associated Press, McKeon said he had several reasons for handing down the seemingly light sentence.
The judge claimed that news coverage obscured state law by failing to mention an exception to the mandatory 25-year prison sentence. According to McKeon, the law allows those arrested for incest involving someone under 12 years old to avoid prison if a psychosexual evaluation finds that psychiatric treatment “affords a better opportunity for rehabilitation of the offender and for the ultimate protection of the victim and society.” The judge wrote this is one of Montana’s attempts “to encourage and provide opportunities for an offender’s self-improvement, rehabilitation and reintegration back into a community.”
In the note to the AP, McKeon also referenced letters written to him by the victim’s mother and grandmother. Both letters requested the convicted man not be sentenced to prison. The victim’s mother, who walked in on the man sexually abusing her daughter, wrote that the man’s two sons love him and she wanted his “children have an opportunity to heal the relationship with their father,” according to McKeon.
The victim’s grandmother echoed this, calling the man’s behavior “horrible” but stating that the man’s children, “especially his sons, will be devastated if their Dad is no longer part of their lives.”
For all these letters defending the convicted man, though, Deputy Valley County Attorney Dylan Jensen told the AP that no one spoke on behalf of the victim, a 12-year-old girl, at Friday’s sentencing hearing. The petition to impeach McKeon highlighted this fact. “No one spoke on behalf of the 12 year old child at trial,” it read. “No one. The victim was not given justice, but instead will have to live with the fear that she still has to face her rapist in their community. ”
McKeon’s email concluded, “All district judges take an oath to uphold the Constitution and laws of this state. These constitutional provisions and laws include certain fundamental legal principles that apply at sentencing, including a presumption of innocence for unproved criminal allegations, the varying sentencing policies and the government’s burden to counter evidence supporting an exception to mandatory sentence.”...
McKeon, who has served as a Montana state judge for 22 years, is retiring next month, according to the Associated Press. Considering that an impeachment in Montana, according to the National Center for State Courts, requires a “two-thirds vote of the house of representatives and [a] convict[ion] by a two-thirds vote of the senate,” the point is fairly moot — there simply isn’t enough time to impeach him.
October 20, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)
"The United States needs a defender general"
The title of this post is the headline of this interesting new commentary authored by Andrea Lyon, who is the dean at Valparaiso University Law School. She joined the school in July 2014. Here are excerpts:
At a time when nearly every political constituency agrees that we have over-incarcerated and over-criminalized our country, one question arises: Why did non-partisan recognition of this issue take so long? It’s no secret that we incarcerate a higher number of people per capita than any other first-world nation....
There has been no voice at the policy table for the accused, incarcerated and paroled. We have an attorney general of the United States. We have a solicitor general of the United States. The only lawyer that is enshrined in the United States Constitution is referenced in the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to … the Assistance of Counsel for his defence.” Yet, the defense is not, and has not been a part of policy decisions regarding criminal justice matters. There is currently no office to represent criminal justice interests at the executive level the way that the attorney general does....
All over the United States indigent defense is in crisis. There are too many cases and insufficient resources to properly staff offices and prepare cases. Too often, the result is that we find out, sometimes decades after the fact, the wrong person was in prison, or perhaps executed. A defender general would know how the defense would be impacted by laws in ways that the prosecution and judiciary don’t anticipate. There could be real input for legislatures about the likely consequences of passing certain statutes, and to help prevent expensive and ineffectual decisions....
We have seen Secretary Hillary Clinton decry over-criminalization and mass incarceration and acknowledge her husband’s part in it. Had President Clinton been presented with a defender general’s analysis, he might have chosen a different path.
How would this work? As far as I know there is no similar office internationally. Israel has a chief public defender for the entire country, and that job is to run the defense attorney function for the indigent in that country. Vermont’s public defender system is called by that name. Some other states, such as Kentucky and Wisconsin, have statewide indigent defense systems. There is certainly recognition of the importance of representation of the accused in many countries, including our own.
What is not clear, though, is a national recognition of the need for a defense policy voice that is regularly included in the conversations that Congress and the executive branch have about these issues. Both branches can and do turn to the attorney general for her input on statutory and other concerns. The solicitor general also serves as an ongoing resource, but there isn’t an office that can represent the concerns of the defense, their families and their communities. Defendants and defense attorneys need a representative at the executive level who can collaborate on major policy issues, establish national and statewide standards, and coordinate training efforts within the criminal justice system. This is a crucial voice that should be a regular part of the executive discourse and an ongoing resource for indigent defense.
This defender general’s office should be created immediately. It should be appropriately staffed and liaisons created with each of the states and territories. The defender general should command the same respect and stature that the offices of the attorney general and solicitor general command, and the defender general would ensure that all of those interested in criminal justice have a seat at the table.
Monday, October 17, 2016
Interesting lengthy dissent from SCOTUS cert denial from Justice Sotomayor joined (only) by Justice Ginsburg
There is a bit of interesting news with today's otherwise dull SCOTUS order list in the form of a lengthy dissent from the denial of certiorari penned by Justice Sotomayor and joined by Justice Ginsburg. The dissent in Elmore v. Holbrook is available here, and it gets started and ends this way:
Petitioner Clark Elmore was convicted of murder in 1995 and was sentenced to death. His court-appointed lawyer, who had never tried a capital case before, knew that Elmore had been exposed to toxins as a young adult and that he had a history of impulsive behavior. A more experienced attorney encouraged Elmore’s lawyer to investigate whether Elmore had suffered brain damage as a young man. Instead of doing so — indeed, instead of conducting any meaningful investigation into Elmore’s life — Elmore’s lawyer chose to present a one-hour penalty-phase argument to the jury about the remorse that Elmore felt for his crime. As a result, the jury did not hear that Elmore had spent his childhood playing in pesticide-contaminated fields and had spent his service in the Vietnam War repairing Agent Orange pumps. The jury did not hear the testimony of experts who concluded that Elmore was cognitively impaired and unable to control his impulses. The jury heard only from an assortment of local judges that Elmore had looked “dejected” as he pleaded guilty to murder, not from the many independent witnesses who had observed Elmore’s searing remorse.
The Constitution demands more. The penalty phase of a capital trial is “a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U. S. 280, 304 (1976). It ensures that a capital sentencing is “humane and sensible to the uniqueness of the individual.” Eddings v. Oklahoma, 455 U.S. 104, 110 (1982). Elmore’s penalty phase fell well below the bare minimum guaranteed by the Constitution. His lawyer acted deficiently in choosing a mitigation strategy without fully exploring the alternatives and in failing to investigate the mitigation strategy that he did choose to present. And had the jury known that Elmore — who had never before been convicted of a crime of violence and felt searing remorse for the heinous act he committed — might be brain damaged, it might have sentenced him to life rather than death.
This Court has not hesitated to summarily reverse incapital cases tainted by egregious constitutional error, particularly where an attorney has rendered constitutionally deficient performance. See, e.g., Hinton v. Alabama, 571 U.S. ___ (2014) (per curiam); Sears v. Upton, 561 U.S. 945 (2010) (per curiam); Porter v. McCollum, 558 U.S. 30 (2009) (per curiam). This case plainly meets that standard. For that reason, I respectfully dissent from the denial of certiorari....
All crimes for which defendants are sentenced to death are horrific. See Glossip, 576 U. S., at ___ (BREYER, J., dissenting) (slip op., at 14); id., at ___ (THOMAS, J., concurring) (slip op., at 6–10). But not all defendants who commit horrific crimes are sentenced to death. Some are spared by juries. The Constitution guarantees that possibility: It requires that a sentencing jury be able to fully and fairly evaluate “the characteristics of the person who committed the crime.” Gregg v. Georgia, 428 U.S. 153, 197 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). That guarantee is a bedrock premise on which our system of capital punishment depends, and it is a guarantee that must be honored — especially for defendants like Elmore, whose lives are marked by extensive mitigating circumstances that might convince a jury to choose life over death. Only upon hearing such facts can a jury fairly make the weighty — and final — decision whether such a person is entitled to mercy. I respectfully dissent from the denial of certiorari.
UPDATE: In the comments, Cal. Prosecutor highlights this notable new post by Kent Scheidegger at Crime & Consequences to provide more context for understanding this lengthy dissent from a SCOTUS cert denial. Here is how that post gets started and ends:
The U.S. Supreme Court today declined to review the case of Washington State murderer Clark Elmore. Justice Sotomayor, joined by Justice Ginsburg, dissented in an opinion castigating the defense lawyer at trial. If the lawyer was so bad, one might ask, why did the Washington Supreme Court deny relief? That court has certainly had no difficulty ruling in favor of murderers in past capital cases. It is one of the country's more criminal-friendly forums. If the lawyer was so bad, why did six of the eight Justices of the U.S. Supreme Court decline to join Justice Sotomayor's vigorous dissent?
There is, of course, more to the story. After the break, I have copied an extensive portion of the Brief in Opposition written by Senior Counsel John Samson for the Washington AG's office....
Defending people who have committed horrible crimes is not easy. Frequently tough choices must be made. If the defendant is sentenced to death, as people who commit horrible crimes frequently are and should be, the capital appeal defense cult stands ready to say that the trial lawyer was incompetent for taking the path that he did at each fork in the road, regardless of which one he took.
October 17, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)
Thoughtful look into fairness/bias concerns with risk-assessment instruments like COMPAS
A group of Stanford professors and students have this thoughtful new Washington Post commentary headlined "A computer program used for bail and sentencing decisions was labeled racist. It’s actually not that clear." The piece is a must-read for everyone concerned about risk-assessment technologies (which should be everyone). Here are excerpts:
This past summer, a heated debate broke out about a tool used in courts across the country to help make bail and sentencing decisions. It’s a controversy that touches on some of the big criminal justice questions facing our society. And it all turns on an algorithm.
The algorithm, called COMPAS, is used nationwide to decide whether defendants awaiting trial are too dangerous to be released on bail. In May, the investigative news organization ProPublica claimed that COMPAS is biased against black defendants. Northpointe, the Michigan-based company that created the tool, released its own report questioning ProPublica’s analysis. ProPublica rebutted the rebuttal, academic researchers entered the fray, this newspaper’s Wonkblog weighed in, and even the Wisconsin Supreme Court cited the controversy in its recent ruling that upheld the use of COMPAS in sentencing.
It’s easy to get lost in the often technical back-and-forth between ProPublica and Northpointe, but at the heart of their disagreement is a subtle ethical question: What does it mean for an algorithm to be fair? Surprisingly, there is a mathematical limit to how fair any algorithm — or human decision-maker — can ever be.
The COMPAS tool assigns defendants scores from 1 to 10 that indicate how likely they are to reoffend based on more than 100 factors, including age, sex and criminal history. Notably, race is not used. These scores profoundly affect defendants’ lives: defendants who are defined as medium or high risk, with scores of 5-10, are more likely to be detained while awaiting trial than are low-risk defendants, with scores of 1-4.
We reanalyzed data collected by ProPublica on about 5,000 defendants assigned COMPAS scores in Broward County, Fla. (See the end of the post, after our names, for more technical details on our analysis.) For these cases, we find that scores are highly predictive of reoffending. Defendants assigned the highest risk score reoffended at almost four times the rate as those assigned the lowest score (81 percent vs. 22 percent).
Northpointe contends they are indeed fair because scores mean essentially the same thing regardless of the defendant’s race. For example, among defendants who scored a seven on the COMPAS scale, 60 percent of white defendants reoffended, which is nearly identical to the 61 percent of black defendants who reoffended. Consequently, Northpointe argues, when judges see a defendant’s risk score, they need not consider the defendant’s race when interpreting it....
But ProPublica points out that among defendants who ultimately did not reoffend, blacks were more than twice as likely as whites to be classified as medium or high risk (42 percent vs. 22 percent). Even though these defendants did not go on to commit a crime, they are nonetheless subjected to harsher treatment by the courts. ProPublica argues that a fair algorithm cannot make these serious errors more frequently for one race group than for another.
Here’s the problem: it’s actually impossible for a risk score to satisfy both fairness criteria at the same time.... If Northpointe’s definition of fairness holds, and if the recidivism rate for black defendants is higher than for whites, the imbalance ProPublica highlighted will always occur.
It’s hard to call a rule equitable if it does not meet Northpointe’s notion of fairness. A risk score of seven for black defendants should mean the same thing as a score of seven for white defendants. Imagine if that were not so, and we systematically assigned whites higher risk scores than equally risky black defendants with the goal of mitigating ProPublica’s criticism. We would consider that a violation of the fundamental tenet of equal treatment.
But we should not disregard ProPublica’s findings as an unfortunate but inevitable outcome. To the contrary, since classification errors here disproportionately affect black defendants, we have an obligation to explore alternative policies. For example, rather than using risk scores to determine which defendants must pay money bail, jurisdictions might consider ending bail requirements altogether — shifting to, say, electronic monitoring so that no one is unnecessarily jailed.
COMPAS may still be biased, but we can’t tell. Northpointe has refused to disclose the details of its proprietary algorithm, making it impossible to fully assess the extent to which it may be unfair, however inadvertently. That’s understandable: Northpointe needs to protect its bottom line. But it raises questions about relying on for-profit companies to develop risk assessment tools.
Moreover, rearrest, which the COMPAS algorithm is designed to predict, may be a biased measure of public safety. Because of heavier policing in predominantly black neighborhoods, or bias in the decision to make an arrest, blacks may be arrested more often than whites who commit the same offense.
Algorithms have the potential to dramatically improve the efficiency and equity of consequential decisions, but their use also prompts complex ethical and scientific questions. The solution is not to eliminate statistical risk assessments. The problems we discuss apply equally to human decision-makers, and humans are additionally biased in ways that machines are not. We must continue to investigate and debate these issues as algorithms play an increasingly prominent role in the criminal justice system.
Some (of many) prior related posts on use of risk-assessment technologies:
- Parole precogs: computerized risk assessments impacting state parole decision-making
- Wisconsin appeals court urges state's top court to review use of risk-assessment software at sentencing
- Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing
- Wisconsin Supreme Court rejects due process challenge to use of risk-assessment instrument at sentencing
- ProPublica takes deep dive to idenitfy statistical biases in risk assessment software
October 17, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Technocorrections, Who Sentences? | Permalink | Comments (0)
Friday, October 14, 2016
"Rethinking Punishment: Sentencing in the Modern Age"
The title of this post is the title of this terrific Temple Law Review symposium taking place today at Temple Law School which I have the pleasure of attending and participating in. Here is the formal description of the event:
This Symposium will gather scholars, practitioners, and judges to offer a contemporary perspective on criminal punishment and highlight alternative punishment programs and reformation efforts. The Hon. L. Felipe Restrepo, Circuit Judge, Third Circuit Court of Appeals and the Hon. Timothy R. Rice, Magistrate Judge, Eastern District of Pennsylvania, will give a keynote address focusing on the Eastern District of Pennsylvania’s Reentry Court Program. In addition to the keynote address, the Symposium will consist of three panels – “Prosecuting in the New Age,” “Defending the Convicted: Effective Sentencing Advocacy,” and “The Sentenced: Stopping the Punishment Cycle.”
The full symposium schedule is here, and readers may not be too surprised to learn that I am slated to speak on Panel 2. I was not planning to blog while participating in this event, but the first two speakers on the Panel 1, "Prosecuting in the New Age," inspired me to get on-line. Specifically, the first two speakers were Judge Risa Ferman, a long-serving Montgomery County prosecutor who just recently became a trial court judge, and George Mosee, Jr., the First Assistant Philadelphia District Attorney. And here are two notable quote (of many) from these two notable speakers:
- "Prosecutors now are problem solvers working in a holistic way"
- "Prosecutors today start with prevention [and] incarceration serves as a last resort"
I found both these quotes coming from state/local prosecutors (and many other similar things they had to say) quite interesting and telling, and it highlights for me some of the many ways in which "the Modern Age" for criminal justice is so much different than it was just a decade ago and especially from two decades ago. It also reinforces my strong view that it is only a matter of time before we will be getting significant sentencing reform at the federal level in some form no matter who is formally in charge in the years ahead. Indeed, for my last post before I get ready to speak, I will close with the fitting words of my favorite Literature Nobel Prize winner:
Come writers and critics who prophesy with your penAnd keep your eyes wide the chance won't come againAnd don't speak too soon for the wheel's still in spinAnd there's no tellin' who that it's namin'For the loser now will be later to winFor the times they are a' changin'!
Come senators, congressmen please heed the callDon't stand in the doorway don't block up the hallFor he that gets hurt will be he who has stalledThere's a battle outside and it's ragin'It'll soon shake your windows and rattle your wallsFor the times they are a' changin'!
Wednesday, October 12, 2016
"Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States"
The title of this post is the title of this lengthy new Human Rights Watch report. Here is part of the report's summary introduction:
Every 25 seconds in the United States, someone is arrested for the simple act of possessing drugs for their personal use, just as Neal and Nicole were. Around the country, police make more arrests for drug possession than for any other crime. More than one of every nine arrests by state law enforcement is for drug possession, amounting to more than 1.25 million arrests each year. And despite officials’ claims that drug laws are meant to curb drug sales, four times as many people are arrested for possessing drugs as are arrested for selling them.
As a result of these arrests, on any given day at least 137,000 men and women are behind bars in the United States for drug possession, some 48,000 of them in state prisons and 89,000 in jails, most of the latter in pretrial detention. Each day, tens of thousands more are convicted, cycle through jails and prisons, and spend extended periods on probation and parole, often burdened with crippling debt from court-imposed fines and fees. Their criminal records lock them out of jobs, housing, education, welfare assistance, voting, and much more, and subject them to discrimination and stigma. The cost to them and to their families and communities, as well as to the taxpayer, is devastating. Those impacted are disproportionately communities of color and the poor.
This report lays bare the human costs of criminalizing personal drug use and possession in the US, focusing on four states: Texas, Louisiana, Florida, and New York. Drawing from over 365 interviews with people arrested and prosecuted for their drug use, attorneys, officials, activists, and family members, and extensive new analysis of national and state data, the report shows how criminalizing drug possession has caused dramatic and unnecessary harms in these states and around the country, both for individuals and for communities that are subject to discriminatory enforcement.
There are injustices and corresponding harms at every stage of the criminal process, harms that are all the more apparent when, as often happens, police, prosecutors, or judges respond to drug use as aggressively as the law allows. This report covers each stage of that process, beginning with searches, seizures, and the ways that drug possession arrests shape interactions with and perceptions of the police—including for the family members and friends of individuals who are arrested. We examine the aggressive tactics of many prosecutors, including charging people with felonies for tiny, sometimes even “trace” amounts of drugs, and detail how pretrial detention and long sentences combine to coerce the overwhelming majority of drug possession defendants to plead guilty, including, in some cases, individuals who later prove to be innocent.
The report also shows how probation and criminal justice debt often hang over people’s heads long after their conviction, sometimes making it impossible for them to move on or make ends meet. Finally, through many stories, we recount how harmful the long-term consequences of incarceration and a criminal record that follow a conviction for drug possession can be—separating parents from young children and excluding individuals and sometimes families from welfare assistance, public housing, voting, employment opportunities, and much more.
You be the judge: what sentence for mother and grandmother who delivered deadly heroin to teen?
The question in the title of this post is prompted by this disturbing AP story headlined "Mom, grandma face sentencing in teen's heroin death at hotel." Here are the depressing details:
The mother and grandmother of a teen who died from a heroin overdose at an Ohio hotel are scheduled to be sentenced for giving the 16-year-old the drugs that killed him. Prosecutors say the grandmother delivered the drugs that her daughter and a friend used with the teen at a hotel in suburban Akron.
Investigators say Andrew Frye was found dead last April in a chair inside the hotel room that was littered with syringes and drug paraphernalia.
Both his mother, Heather Frye, and grandmother, Brenda Frye, pleaded guilty to involuntary manslaughter and other charges last month. Prosecutors say Brenda Frye got the heroin from her boyfriend who pleaded guilty to heroin possession.
This prior story about the guilty pleas entered last month reports that the mother, Heather Frye, is 31 years old and the grandmother, Brenda Frye, is 52 years old. With those additional details, I am now genuinely interested in and eager to hear from readers about what they think would be a fair and effective sentence for these two individuals.
Tuesday, October 11, 2016
"Slave Narratives and the Sentencing Court"
The title of this post is the title of this interesting new paper authored by Lindsey Webb available via SSRN (and which certainly serves as an interesting scholarly "chaser" after watching the new documentary 13th). Here is the abstract:
The United States incarcerates a greater percentage of its population than any other country in the world. Courts are substantially more likely to sentence African American and Latino people to prison than white people in similar circumstances, and African Americans in particular represent a grossly disproportionate percentage of the incarcerated population. Violence and other ills endemic to jails and prisons are thus disproportionately experienced by people of color.
This Article argues that criminal defense lawyers should explicitly address conditions of confinement at sentencing. In doing so, a criminal defense lawyer has the opportunity to serve as both advocate and abolitionist. As advocates, defense lawyers can incorporate information about conditions of confinement into sentencing narratives to support arguments for shorter sentences or against imprisonment altogether. As abolitionists, defense lawyers can juxtapose the humanity of their clients with the poor or even dire conditions of confinement in our jails and prisons — not only to influence the court’s decision about an individual client’s sentence, but to impact the court’s view of our systems of incarceration as a whole. Defense lawyers acting as abolitionists thus seek to disrupt and dismantle a system of imprisonment that disproportionately affects African American and Latino people in significant and damaging ways.
In examining how invoking conditions of confinement at sentencing engages defense attorneys as advocates and abolitionists, this Article seeks insight from a tool of abolitionists and advocates from a different time: Civil War-era slave narratives. Slave narratives exposed the hidden conditions of slavery while also seeking to humanize the enslaved people subjected to those conditions. Using slave narratives as a touchstone in a conversation about sentencing advocacy provides a new perspective on the role of storytelling in litigation and social movements, including questions of who tells the story and which stories are told, in the context of systems of control with deep disparate impacts based on race.
October 11, 2016 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)
Friday, October 07, 2016
This weekend's must-watch: 13th, Ava DuVernay's new documentary linking slavery and mass incarceration
As noted in this prior post, my screen time last weekend was devoted to my favorite bi-annual sporting event. And I suspect much of this weekend will be focused on one of my favorite annual playoffs. But the must-watch for this weekend is on a much more serious set of subjects, the US history of slavery and its echoes within mass incarceration. These are the topics covered in a new Netflix documentary, which YouTube describes in this way along providing this preview:
The title of Ava DuVernay’s extraordinary and galvanizing documentary 13TH refers to the 13th Amendment to the Constitution, which reads “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” The progression from that second qualifying clause to the horrors of mass criminalization and the sprawling American prison industry is laid out by DuVernay with bracing lucidity. With a potent mixture of archival footage and testimony from a dazzling array of activists, politicians, historians, and formerly incarcerated women and men, DuVernay creates a work of grand historical synthesis. On Netflix October 7.
I would be excited to watch this new documentary even if it did not receive strong reviews. But, as these reviews/headlines highlight, I am not the only one thinking this new doc is a must-watch:
From Rolling Stone here, "'13th' Review: Damning Doc on Racist Prison System Deserves an Oscar: Ava DuVernay's history-lesson indictment on "new slavery" – the mass incarceration of African-Americans – is a major wake-up call"
From Slate here, "New Slaves: I’m a criminal justice reporter, and Ava DuVernay’s new Netflix documentary about mass incarceration shocked me."
And, perhaps unsurprisingly, a notable negative review makes me even more eager to watch and re-watch this new doc:
From National Review here, "The 13th via the Un-talented Tenth: A New documentary reveals the black bourgeoisie’s political correctness."
Thursday, October 06, 2016
"6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016"
The title of this post is the title of this timely new study on felony disenfranchisement released today by The Sentencing Project and authored by researchers Christopher Uggen, Ryan Larson, and Sarah Shannon. Here is the start of the report's "Overview" section:
The United States remains one of the world’s strictest nations when it comes to denying the right to vote to citizens convicted of crimes. An estimated 6.1 million Americans are forbidden to vote because of “felony disenfranchisement,” or laws restricting voting rights for those convicted of felony-level crimes.
In this election year, the question of voting restrictions is once again receiving great public attention. This report is intended to update and expand our previous work on the scope and distribution of felony disenfranchisement in the United States (see Uggen, Shannon, and Manza 2012; Uggen and Manza 2002; Manza and Uggen 2006). The numbers presented here represent our best assessment of the state of felony disenfranchisement as of the November 2016 election.
Our key findings include the following:
• As of 2016, an estimated 6.1 million people are disenfranchised due to a felony conviction, a figure that has escalated dramatically in recent decades as the population under criminal justice supervision has increased. There were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, and 5.85 million in 2010.
• Approximately 2.5 percent of the total U.S. voting age population — 1 of every 40 adults — is disenfranchised due to a current or previous felony conviction.
• Individuals who have completed their sentences in the twelve states that disenfranchise people post-sentence make up over 50 percent of the entire disenfranchised population, totaling almost 3.1 million people.
• Rates of disenfranchisement vary dramatically by state due to broad variations in voting prohibitions. In six states — Alabama, Florida, Kentucky, Mississippi, Tennessee, and Virginia — more than 7 percent of the adult population is disenfranchised.
• The state of Florida alone accounts for more than a quarter (27 percent) of the disenfranchised population nationally, and its nearly 1.5 million individuals disenfranchised post-sentence account for nearly half (48 percent) of the national total.
• One in 13 African Americans of voting age is disenfranchised, a rate more than four times greater than that of non-African Americans. Over 7.4 percent of the adult African American population is disenfranchised compared to 1.8 percent of the non-African American population.
• African American disenfranchisement rates also vary significantly by state. In four states — Florida (21 percent), Kentucky (26 percent), Tennessee (21 percent), and Virginia (22 percent) — more than one in five African Americans is disenfranchised.
This report reinforces my view that Prez candidate Donald Trump is right about one thing: our election system is "rigged." But when he makes that claim, I am pretty sure he is not complaining about the facts detailed in this study documenting why and where about "2.5 percent of the total U.S. voting age population — 1 of every 40 adults — is disenfranchised."
October 6, 2016 in Campaign 2016 and sentencing issues, Collateral consequences, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)
Wednesday, October 05, 2016
"Victim Impact Statements and Expressive Punishment in the Age of Social Media"
The title of this post is the title of this new paper available via SSRN and authored by Erin Sheley. Here is the abstract:
Victim impact statements (VIS) are long-disfavored among legal commentators for allegedly injecting unnecessary, negative emotion into sentencing at the expense of the defendant, with ambiguous informational benefits to the sentencing body. Most traditional arguments both for and against VIS turn on purely retributive or utilitarian grounds.
This essay takes up the Stanford sexual assault victim’s statement to propose an expressive framework for understanding the function of VIS, which resolves much of the theoretical confusion surrounding the traditional justifications. I show how the expressive goals of criminal punishment have long been distorted by the mediation of traditional news reporting. I then analyze the legal relevance of the particular criminological values expressed in the Stanford statement to show how unmediated victim narratives may counterbalance media distortion, particularly in the age of social media transmission. I conclude that the criminal justice system better serves its expressive function by formally incorporating VIS into sentencing.
Monday, October 03, 2016
"Dignity and the Death Penalty in the US Supreme Court"
The title of this post is the title of this new paper authored by Bharat Malkani now available via SSRN. Here is the abstract:
The US Supreme Court has repeatedly invoked the idea of dignity in its Eighth Amendment jurisprudence, particularly in cases involving capital punishment. However, it has never articulated a clear and consistent conception of dignity. The first half of this paper examines the Court's inconsistent use, and highlights how various justices have used different conceptions of human dignity, communitarian dignity, and institutional dignity to uphold the constitutionality of capital punishment. This stands in contrast to how foreign and international authorities have used the idea of dignity to advance abolition.
The second half of this paper uses the Supreme Court's own accounts of dignity, and philosophical approaches to dignity, to argue that respect for dignity must pull towards a finding that the death penalty is unconstitutional. Respect for dignity, it is argued, requires a consideration of how human, communitarian, and institutional dignity inter-relate and inform one another. For example, it makes little sense to examine the death penalty and the dignity of the legal system without considering the human dignity of the people involved in administering capital punishment. When these three dignities are considered together, it becomes clear that the death penalty cannot comport with respect for dignity, as required by the Eighth Amendment.
Thursday, September 29, 2016
New HELP Act seemingly proposes death — and mandates LWOP — for spiked heroin dealing in every case in which "death or serious bodily injury results"
In this post yesterday I noted that Representative Tom Reed, who represents the 29th Congressional District of New York, last week introduced a bill (with four co-sponsors) that would respond to the current heroin epidemic by expanding the federal death penalty. In that post, you can find Rep Reed's press release, headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," explaining the background and reasons for his proposal.
This morning, I found that this page at Congress.gov providing more information about the Help Ensure Lives are Protected (HELP) Act now has this link to the (quite short) text of Rep Reed's bill. Somewhat disconcertingly, but not really all that surprisingly, the bill is written in a way that seems to mandate federal life without parole (and permits the death penalty) in any and every case in which any user of spiked heroin suffers even serious bodily injury and even if the person distributing the heroin does not know or even have any reason to know the heroin is spiked or that it could seriously injure a user.
In other words, as I read the key text of the proposed HELP Act, this bill calls for holding any and all heroin distributors strictly and severely criminally liable for any and all serious injuries or deaths that result from a user ingesting spiked heroin. This is because the HELP Act simply amends the "Penalties" provision of the Controlled Substances Act by adding "if the mixture or substance [of more than 100 grams] containing a detectable amount of heroin also contains a detectable amount of [spiked substance like fentanyl], and if death or serious bodily injury results from the use of such substance, such person shall be sentenced to life imprisonment or death."
Of course, the Supreme Court long ago concluded that the Eighth Amendment precludes even felony murderers from be subject to the death penalty unless and until it can be shown they were at least extremely reckless in the causing of a death. Thus, because of constitutional limits, there is little chance this bill if enacted would end up sending lots of drug dealers to federal death row. But, the Eighth Amendment was interpretted in 1991 to permit Michigan to mandatorily impose LWOP on adults for just the possession of a significant quantity of drugs. Thus, if the HELP Act were to become law, there is a real reason to expect that a huge numbers of persons involved in heroin distribution throughout the US could soon be facing mandatory life sentences if anyone who gets a spiked drug gets seriously injured.
Prior related posts:
- NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers" ... UPDATE: With four co-sponsors
- Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?
- "In Heroin Crisis, White Families Seek Gentler War on Drugs"
September 29, 2016 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)
Wednesday, September 28, 2016
Terrific NPR segment about prisoners on strike throughout the US
I was lucky enough to have my drive home tonight coincide with my local NPR station's broadcast of a lengthy segment concerning US prisons and on-going strikes in a number around the nation. Among the participants in the call-in show was Beth Schwartzapfel who has been following developments and writing about them here at The Marshall Project under the headline "A Primer on the Nationwide Prisoners’ Strike: Prisoners can be forced to work without pay — the Constitution says so."
The reason I consider the NPR piece a "must-listen" is in large part because of two current prisoners were somehow able to call into the show and talk about these issues from prison for an extended period. (The currently incarcerated begin speaking around the 14:25 mark until about the 39:40 mark.
Really worth taking the time to check out for those who care about prisons and prisoners in the United States.
"The Case Against Prisons: Alternatives to imprisonment are working around the world — so why isn’t the United States on board?"
The title of this post is the headline of this lengthy new piece by Rebecca Gordon at The Nation (although the title is a bit misleading because the piece talks more about justice and punishment than about prisons). Here are excerpts:
This year, a brave New Jersey state senator, a Democrat, took on the pernicious problem of distracted walking. Faced with the fact that some people can’t tear themselves away from their smartphones long enough to get across a street in safety, Pamela Lampitt of Camden, New Jersey, proposed a law making it a crime to cross a street while texting. Violators would face a fine, and repeat violators up to 15 days in jail. Similar measures, says the Washington Post, have been proposed (though not passed) in Arkansas, Nevada, and New York. This May, a bill on the subject made it out of committee in Hawaii.
That’s right. In several states around the country, one response to people being struck by cars in intersections is to consider preemptively sending some of those prospective accident victims to jail. This would be funny, if it weren’t emblematic of something larger. We are living in a country where the solution to just about any social problem is to create a law against it, and then punish those who break it....
I’ve been teaching an ethics class at the University of San Francisco for years now, and at the start of every semester, I always ask my students this deceptively simple question: What’s your definition of justice?...
For most of my students – for most Americans in fact – justice means establishing the proper penalties for crimes committed. “Justice for me,” says one, “is defined by the punishment of wrongdoing.” Students may add that justice must be impartial, but their primary focus is always on retribution. “Justice,” as another put it, “is a rational judgment involving fairness in which the wrongdoer receives punishment deserving of his/her crime.”...
Often, when citing the sources of their beliefs about justice, students point to police procedurals like the now-elderly CSI and Law and Order franchises. These provide a sanitary model of justice, with generally tidy hour-long depictions of crime and punishment, of perps whose punishment is usually relatively swift and righteous.
Certainly, many of my students are aware that the U.S. criminal justice system falls far short of impartiality and fairness. Strangely, however, they seldom mention that this country has 2.2 million people in prison or jail; or that it imprisons the largest proportion of people in the world; or that, with 4% of the global population, it holds 22% of the world’s prisoners; or that these prisoners are disproportionately brown and black. Their concern is less about those who are in prison and perhaps shouldn’t be, than about those who are not in prison and ought to be.
They are (not unreasonably) offended when rich or otherwise privileged people avoid punishment for crimes that would send others to jail. At the height of the Great Recession, their focus was on the Wall Street bankers who escaped prosecution for their part in inflating the housing bubble that brought the global economy to its knees. This fall, for several of them, Exhibit A when it comes to justice denied is the case of former Stanford student Brock Turner, recently released after serving a mere three months for sexually assaulting an unconscious woman. They are (perhaps properly) outraged by what they perceive as a failure of justice in Turner’s case. But they are equally convinced of something I struggle with – that a harsher sentence for Turner would have been a step in the direction of making his victim whole faster. They are far more convinced than I am that punishment is always the best way for a community to hold responsible those who violate its rules and values....
Of course, the urge to extend punishment to every sort of socially disapproved behavior, including texting in a crosswalk, is hardly a new phenomenon. Since the founding of the United States, government at every level has tended to make unpopular behavior illegal. Just to name a few obvious examples of past prohibitions now likely to stop us in our tracks: at various times there have been laws against having sex outside marriage, distributing birth control, or marrying across races (as highlighted in the new movie Loving). In 1919, for instance, a constitutional amendment was ratified outlawing the making, shipping, or selling of alcohol (although it didn’t last long)....
It’s hard to imagine a justice system that doesn’t rely primarily on the threat of punishment when, for most Americans, no alternative is imaginable. But what if there were alternatives to keeping 2.2 million people in cages that didn’t make the rest of us less safe, that might actually improve our lives? Portugal has tried one such alternative. In 2001, as the Washington Post reported, that country “decriminalized the use of all drugs” and decided to treat drug addiction as a public health problem rather than a criminal matter. The results? Portugal now has close to the lowest rate of drug-induced deaths in Europe – three overdose deaths a year per million people. By comparison, at 45 deaths per million population, the United Kingdom’s rate is more than 14 times greater. In addition, HIV infections have also declined in Portugal, unlike, for example, in the rural United States where a heroin epidemic has the Centers for Disease Control and Prevention worried about the potential for skyrocketing infection rates.
All right, but drug use has often been called a “victimless” crime. Maybe it doesn’t make sense to lock up people who are really only hurting themselves. What about crimes like theft or assault, where the victims are other people? Isn’t punishment a social necessity then?
If you’d asked me that question a few years ago, I would probably have agreed that there are no alternatives to prosecution and punishment in response to such crimes. That was before I met Rachel Herzing, a community organizer who worked for the national prison-abolition group Critical Resistance for 15 years. I invited her to my classes to listen to my students talk about crime, policing, and punishment. She then asked them to imagine the impossible – other methods besides locking people up that a community could use to restore itself to wholeness.
This is the approach taken by the international movement for restorative justice. The Washington, D.C.-based Centre for Justice and Reconciliation describes it this way: “Restorative justice repairs the harm caused by crime. When victims, offenders, and community members meet to decide how to do that, the results can be transformational.”...
So the next time you find yourself thinking idly that there oughta be a law – against not giving up your seat on a bus to someone who needs it more, or playing loud music in a public place, or panhandling – stop for a moment and think again. Yes, such things can be unpleasant for other people, but maybe there’s a just alternative to punishing those who do them.
NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers" ... UPDATE: With four co-sponsors
This official press release from the offices of Representative Tom Reed, who represents the 29th Congressional District of New York, reports on the introduction of a bill that would respond to the current heroin epidemic by expanding the federal death penalty. The press release is headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," and here are the details form the press release:
Tom Reed continued his fight against heroin and opioid abuse by offering a proposal which would toughen penalties for drug dealers that supply users with illicit substances that cause an overdose death. “We care about the families of every overdose victim in our community and the addicts that are struggling. We’ve held several roundtable discussions and heard directly from the parents who have lost children to opioids and heroin. It’s only right that we hold those responsible for harming our loved ones accountable,” said Reed.
The bill, known as the Help Ensure Lives are Protected (HELP) Act, would allow federal prosecutor expanded access to more severe penalties, including life in prison or the death penalty, when prosecuting certain criminal drug cases where prosecutors can connect an overdose death to the drug dealer that sold heroin laced with fentanyl.
The move comes in the wake of several roundtable discussions held by Reed throughout the region as well as the recent spike in overdoses directly related to fentanyl laced heroin. The number of deaths due to synthetic opioids, mainly Fentanyl, rose 80% between 2013 and 2014.
Fentanyl is extremely addictive substance, 100 times more powerful than morphine, which is often included in heroin without the user’s knowledge, to maximize the dealer’s profits. The substance is so potent that law enforcement officers are forced to wear level ‘A’ hazmat suits following raids and seizures to avoid coming in contact with it. These hazmat suits are the same kind worn by medical professionals combating Ebola.
Reed supported the Comprehensive Opioid Abuse Reduction Act which was signed into law in July. The law provides for new programs that offer prevention and treatment options for addicts by offering grants to states, and groups of states, to implement and expand access to these services. The government funding proposal, which is expected to pass the House later this week, will designate $37 million to these efforts.
Reed says his proposal will “bring balance to the approach” by providing law enforcement with additional options to aid prosecution. “This is about justice for the victims and their families and giving our law enforcement and prosecutors the tools they need to stop the flow of these lethal substances into our communities,” said Reed. The proposal was introduced late last week.
I cannot yet find the Help Ensure Lives are Protected (HELP) Act on-line, but I am very interested in seeing just how this bill seeks to apply and administer LWOP and the death penalty in this setting.
UPDATE: I have found this page via Congress.gov providing more information about the HELP Act, which on that site goes by this description "H.R.6158 - To provide for enhanced penalties for certain offenses relating to controlled substances containing fentanyl, and for other purposes." Unfortunately, that webpage does not yet have either the bill text or the a substantive summary, but the page does note that H.R.6158, the HELP Act, was introduced with these four other sponsors:
Rep. Yoho, Ted S. [R-FL-3]
Rep. LaMalfa, Doug [R-CA-1]
Rep. Flores, Bill [R-TX-17]
Rep. Chabot, Steve [R-OH-1]
Monday, September 26, 2016
Florida paper devotes three-part editorial to assail state's sex offender residency restrictions
A helpful reader altered me to this remarkable three-part editorial from the Florida Times-Union that concluded over the weekend highlighting problems with residency restrictions for sex offenders:
Part 1: "Law is designed to fail: Many sexual predators are wandering the streets"
Part 2: "Designed to fail: Sexual predators are wandering the streets"
Part 3: "Designed to fail: Solutions for sexual predator residency requirements"
Ever eager to focus on solutions even more than problems, I will highlight here the closing sections of the last of these editorials:
A year ago, California stopped requiring all sex offenders meet residency restrictions, instead enforcing these laws only against high-risk offenders. Available housing for low-risk offenders increased dramatically, and the number of homeless offenders decreased. Counties here, such as Duval and Nassau, should immediately create working groups to look at the effectiveness of strict county residency restrictions en route to making changes. We should also look at novel ways to create more housing for released sexual felons.
Communities in Florida have begun to experiment. Several hotels that meet residency restrictions have been transformed into facilities to house sex offenders. In other places in the state, mobile home parks have been converted to complexes that serve those coming out of prison.
One of the more comprehensive programs, however, has been launched by a nonprofit in Eugene, Ore. An organization, Sponsors, provides both short-term and long-term housing for sexual offenders and predators upon their release. In addition, the organization is currently building an entire complex of apartments that will offer permanent housing for ex-felons, including those convicted of sexual offenses.
Other states such as Washington and Vermont have similarly enacted more humane and effective measures for housing sex offenders and predators that pair governmental agencies with nonprofits to locate housing.
It’s time we look at the possibility of creating such programs here. Homelessness is not the answer.
September 26, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (7)
Making the argument for legalization as the best response to the US heroin problems
This new opinion piece by Bonnie Kristian at The Week, headlined "Legalize heroin," makes a full-throated argument for why eliminating criminal law rather than making it more tough would be the best way to deal with the current heroin epidemic. Here are excerpts:
The U.S. government should legalize heroin. The last five years have seen heroin overdose deaths dramatically spike in the United States, from just over 3,000 in 2010 to more than 10,500 in 2014, the latest year for which the National Institutes of Health provides data. In fact, drug overdose deaths now outpace car crashes in taking American lives, and about half those overdoses are attributable to heroin and other opioids....
Recent history and present practicalities alike make clear that the best way to cut down on heroin abuse is to legalize it — or at the very least, decriminalize it. The crown jewel of evidence for this point is the experience of Portugal, whose culture and form of government are similar enough to our own to make comparison reasonable. In 2001, Portugal decriminalized all drugs. All drugs.
A decade later, hard drug abuse had dropped by half. Drug overdose deaths in Portugal are now all but nonexistent: just three for every million people each year. (Were overdose deaths happening in America at a Portuguese rate, we'd see fewer than 1,000 die annually, more than a 90 percent drop from the current numbers on opioid-related deaths, let alone total overdose deaths.) Portuguese use of sketchy "legal" substitutes is way down, too, because there’s no need to mess with dangerous unknowns when you’ll only get a small fine and maybe a rehab referral if you’re caught with the real thing. Heroin addiction — suffered by fully 1 percent of Portugal's population pre-decriminalization — is estimated to have dropped by about half, and most of those who are still addicted are on substitution treatment and in no statistical danger of overdose.
By contrast, here in the States, strict prohibition has utterly failed to prevent drug use rates at world-record levels. Drug war spending is perhaps the only thing to spike faster than heroin addiction, and we have nothing to show for it. In 2016, Rolling Stone notes, "the federal government is spending more than $1,100 per person to combat the habit of America's 27 million illicit-drug users, and 22 million of them use marijuana." With more than $1.5 trillion down the drain, U.S. addiction rates have utterly failed to improve.
If anything, the drug war makes illicit opioid use more dangerous than it otherwise would be. Heroin abuse often begins as an extension of opioid addiction fostered by over-prescription, and once users get their supply from the street instead of the pharmacy, prohibition produces tainted and mislabeled products that make overdose more likely — just like it did with alcohol nearly a century ago.
Criminalizing the heroin supply chain produces a risky and therefore lucrative market for violent criminals, leading to casualties far beyond the toll of drug abuse itself. To argue for legal heroin "does not, at first blush, appear to put one on the side of the angels," explains Harvard's Danielle Allen, but "the war on drugs drives violent crime, which in turn pushes up incarceration and generates other negative social outcomes. You just can't move $100 billion worth of illegal product without a lot of assault and homicide."
Prohibition even makes safe treatment less likely for addicts who know they have a problem and actively want to change their lives. After decriminalization, Portugal saw the rate of people seeking addiction treatment nearly double, because now there is essentially no downside to doing so. With a looming threat of jail or coercive court-mandated rehab stints shaped as much by policy goals than each individual's unique health care needs, the same cannot be said here....
Heroin addicts need relief too — relief from their addiction itself, yes, but also from dangerous products, organized crime, and a government eager to lock them up in a prison environment hardly conducive to improving physical or mental health. Of course, there is an element of choice in opioid abuse that is missing from a cancer diagnosis. Still, the heroin epidemic is a health crisis, and legalization is a viable and practical solution that compassion dictates we must consider.
Sunday, September 25, 2016
The title of this post is the title of this interesting and provocative new essay authored by I. Bennett Capers now available via SSRN. Here is the abstract:
While there is much to be said about the problem of mass incarceration and strategies for de-incarceration, the goal of this essay is to bring two things to the conversation. The first is to bring attention to the complex role misdemeanors play in compounding the problem of mass incarceration. The second is to call attention to race, but not in the usual way.
Usually, when we think of race and criminal justice, we think of racialized policing and the overrepresentation of racial minorities in jails and prisons. But what happens when we consider criminal justice not only as an issue of overcriminalization and overenforcement vis-à-vis racial minorities, but also as an issue of undercriminalization and underenforcement vis-à-vis non-minorities?
Put differently, in this time when we are again discussing white privilege and the hashtag #Crimingwhilewhite has become a phenomenon, are there advantages to talking about white privilege — or more generally, privilege — and criminal justice? If there exists what Randall Kennedy calls a “racial tax,” are there benefits to asking who gets a “racial pass”? Are there advantages to talking about the under-policed? Finally, how might those conversations impact the issue du jour, mass incarceration? This essay concludes by offering some suggestions for reducing mass incarceration.
Saturday, September 24, 2016
"Originalism and the Criminal Law: Vindicating Justice Scalia's Jurisprudence ― And the Constitutution"
The title of this post is the title of this new paper authored by Adam Lamparello and Charles MacLean now available via SSRN. Here is the abstract (which unfortunately does not seem to flesh out the title or themes of the piece's focus on Justice Scalia's criminal jurisprudence):
Justice Scalia was not perfect — no one is — but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective — namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution — that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.” Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. Greg Abbott said, an ‘unwavering defender of the written Constitution.’”
Justice Scalia’s frustration with the Court was certainly evident at times during his tenure, and understandably so. In United States v. Windsor, Scalia lamented as follows: "We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better."
The above passage captures the essence of Justice Scalia’s philosophy, and the enduring legacy that will carry forward for many years after his death. At the end of the day, Justice Scalia, whether through well-reasoned decisions, blistering dissents, or witty comments at oral argument, spoke a truth that transcends time: “[m]ore important than your obligation to follow your conscience, or at least prior to it, is your obligation to form your conscience correctly.” And “[h]ave the courage to have your wisdom regarded as stupidity… and have the courage to suffer the contempt of the sophisticated world.” You will be missed, Justice Scalia. You left the Court — and the law — better than it was before you arrived.
Thursday, September 22, 2016
"Under the Radar: Neuroimaging Evidence in the Criminal Courtroom"
The title of this post is the title of this notable (and quite lengthy) article available via SSRN authored by Lyn Gaudet and Gary Marchant. Here is the abstract (with one line emphasized therein for sentencing fans):
This Article analyzes court decisions in 361 criminal cases involving neuroimaging evidence through the end of 2015. There has been a steady upward trend in the number of criminal cases considering neuroimaging evidence with the number of reported decisions being the highest in the most recent period of 2013-2015. Neuroimaging evidence has been used in competency, guilt, and penalty phases of criminal trials, with the most efficacy being seen in the penalty phase, especially in capital cases.
In order to provide a helpful analysis of uses and trends of this specific type of evidence, this Article includes an identification of the specific neuroimaging modality used or requested in each case (CT, MRI, EEG, PET, SPECT), the reason for the request for neuroimaging, the legal argument involving the imaging data, and the court’s response. In addition, common concerns regarding the use of neuroimaging data are also addressed, including the complexity of the various techniques and analysis, individual variability of the brain, the time gap between scanning and the criminal act, and the ability to make statements about groups versus about one individual.
As supported by the trends demonstrated in this analysis, there has been a shift in recent years from discussion about whether neuroimaging evidence is relevant and admissible toward admissibility of this type of evidence and a focus on the substantive results and appropriate use of the neuroimaging data.
Wednesday, September 21, 2016
"Assessing Time Served" and the deeply under-theorized problems of criminal history
Patrick Woods has this effective and important new article now available via SSRN titled "Assessing Time Served." Here is the abstract (which will be followed by a few comments I have about this topic):
This article examines the utility of a new way of determining when increased punishment should be imposed pursuant to “three strikes” laws or other recidivist enhancements. In the past two years, Congress and the United States Sentencing Commission have each considered criminal justice reform measures that would use the length of time an offender spent incarcerated as a proxy for the seriousness of his earlier criminal conduct. While this reform seems sound at first glance, the article ultimately concludes that its incorporation into current state and federal sentencing laws must be done carefully, if at all, and that doing so now may be premature.
The article compares this new “time served” approach with the current methods of determining the severity of the punishment imposed upon an offender for his prior crime. Current federal and state laws assess the seriousness of prior punishment using either the maximum statutory penalty — irrespective of the real sentence — or the sentence announced in court by the judge — even if only a small fraction of that sentence was actually served before the defendant was released. Compared with these methods, determining the severity of a prior punishment using a “time served” measure seems to be an improvement.
Real problems, however, lurk just below the surface. The article discusses in detail significant challenges with records gathering, defining the term of incarceration, and using the metric in a way that is consistent with due process guarantees. It suggests how the metric might be employed to minimize each of these concerns, but also concludes that the condition of state and local incarceration records may make use of the metric in the near future impracticable.
This article effectively highlights some of the practical challenges of using time actually served in prison as a metric for recidivist sentencing enhancements, and these practical challenges must be considered against the backdrop of the host of other practical difficulties federal courts have experienced in using other metrics in application of the Armed Career Criminal Act and guideline assessments of criminal history. Moreover, as the title of this post hints, I think modern criminal justice theorists and scholars ought to be working a lot more on what the author calls the "philosophical underpinnings" of recidivist sentencing enhancements. (The author usefully brackets this issue because his fundamental project in this article is not conceptual.) In many ways, I think the "war on drug" has had its biggest impact on modern incarceration through such recidivist enhancements, and I have long thought that the "philosophical underpinnings" of such enhancements can and should be greatly influenced by the types (and especially the motives) of prior offenses.
September 21, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)
Astute recognition that crime victims have to be integral part of effort to address modern mass incarceration
Greg Berman and Julian Adler have this important new commentary at The Crime Report headlined "Finding Common Cause: Victims and the Movement to Reduce Incarceration." Here are excerpts:
After more than a generation of punitive, “tough-on-crime” rhetoric and policymaking, there is now a fairly broad political consensus in the United States that we have gone too far in our use of incarceration. Indeed, just a few weeks ago, the White House unveiled the Data-Driven Justice Initiative, a partnership of 67 jurisdictions — big and small, conservative and liberal — committed to using data to reduce incarceration.
The efforts to roll back mass incarceration are laudable, but they will not achieve lasting change if they do not figure out how to incorporate the perspectives of the justice system’s most vulnerable constituents: Victims of crime.
Victims of intimate partner violence in particular often feel sidelined by a criminal justice system that focuses almost exclusively on defendants. And make no mistake: Domestic violence represents a significant percentage of the cases in our criminal courts. Current estimates show that approximately 10 million people are abused by an intimate partner in the U.S. each year — and this is almost certainly an undercount, given the hidden and unreported nature of a lot of abuse.
But it is not just the criminal justice system that pays short shrift to victims. Reformers do it, too. “Victims have been overlooked in this de-incarceration movement,” said Mai Fernandez, executive director of the National Center for Victims of Crime, in a recent interview with the Center for Court Innovation. Advocates concerned with reducing the use of incarceration typically argue that fewer defendants should be sent to jail or prison, and that there should be more community-based alternatives. Victim support organizations are, by definition, focused on crime victims’ safety. Historically, many have argued for increased accountability — including incarceration — for offenders, particularly in cases involving domestic violence.
Is it possible for victim advocates and jail reduction advocates to find common cause? To begin to answer this question, the John D. and Catherine T. MacArthur Foundation and the Center for Court Innovation convened a roundtable with policymakers and practitioners from across the country, including judges, prosecutors, defense attorneys, victim advocates, and police officials. The roundtable highlighted a number of tensions.
One obvious tension is the potential conflict between protecting the safety of victims and protecting the constitutional rights of the accused. Many advocates believe that to better serve victims, courts should impose conditions of release—including stay-away orders, monitoring, and participation in specialized services — for domestic violence defendants who are out in the community pending trial. This idea runs up against the strong national push to reduce pretrial detention for those who have been accused—but not convicted — of criminal behavior.
As with much of American life, the challenge of racial, ethnic and gender disparity hangs over this conversation. Black and Latino communities have long histories of being over-policed and over-criminalized in the U.S. At the same time, these communities have been under-protected from the threat of victimization. History tells us that women of color are particularly vulnerable.
Many advocates of jail reduction place great faith in actuarial risk assessment instruments to determine who can be safely released while a case is pending. But victim advocates are asking some hard questions about these tools: How accurate are they? What can a statistical analysis tell us about what any individual defendant might do? And how well do risk tools take into account potential lethality?
“Domestic violence defendants are different,” argued Idaho judge James Cawthon in the roundtable. Indeed, there is plenty of evidence to suggest that the presence of a specifically targeted victim changes the equation when it comes to looking at the potential risk — and severity — of re-offending. While some jurisdictions have developed special risk assessment tools for domestic violence defendants, many have not. In the days ahead, jail and prison reformers will have to wrestle with these and other challenges if they are to win the full-throated support of victim advocacy groups....
A strong body of opinion within the victims’ movement agrees the time has come to take a hard look at “right-sizing” incarceration, which involves figuring out who needs to be behind bars and who does not. “It’s just simply not the case that all victims of violent crimes, and certainly not all victims of nonviolent crimes, seek a punitive punishment for the offender,” University of Miami law professor Donna Coker tells the Center for Court Innovation. “What they frequently seek is some assurance that it won’t happen to them again and some assurance that it won’t happen to somebody else.”
Victim advocates and jail reduction proponents may not be able to agree on every issue. But in those areas where they have shared goals — improving the quality of risk assessment tools, reducing racial and gender disparities, and promoting trauma-informed care — they can serve as a powerful voice for change within our justice system.
Tuesday, September 20, 2016
What should we make of why and how New Mexico's Gov is pushing hard to bring back the death penalty in her state?
One notable sentencing reform story in the United States over the last decade has been the growing number of states abolishing capital punishment legislatively while no new state has come to (or come back to) embrace the penalty. Specifically, in the last decade, we have seen legislatures in New York, New Jersey, New Mexico, Illinois, Connecticut, Maryland and Nebraska take their machineries of death off-line. (The 2015 Nebraska repeal, as regular readers know, might be reversed by voter referendum this November.)
But as highlighted by this new AP article, headlined "New Mexico Governor Wants Vote on Reinstating Death Penalty," a notable chief executive is now making a notable hard push for bringing the death penalty back in her state. Here are the latest details:
P>New Mexico Gov. Susana Martinez stepped up pressure on lawmakers Tuesday to consider reinstating the death penalty by promising to add the issue to a legislative agenda for a pending special session that was aimed solely at fixing the state's budget shortfall.
The second-term Republican governor said that she wants the death penalty as an option for convicted killers of police, children and corrections officers. New Mexico repealed the death penalty in 2009 before Martinez took office by replacing provisions for lethal injection with a sentence of life in prison without parole. The move by Martinez could compel lawmakers to take a public stand on capital punishment ahead of November elections for the Republican-controlled state House of Representatives and Democrat-dominated state Senate.
"Cop killers and child murderers deserve the ultimate punishment," Martinez said in a written statement. "If you kill an officer, you deserve the death penalty. If you kill a child, you deserve the death penalty. It's time we say enough is enough."...
Her push to restore capital punishment follows the killings in southern New Mexico of two police officers in separate shootings in August and September by wanted fugitives, along with the horrific killing and dismemberment of a 10-year-old New Mexico girl in Albuquerque last month.
New Mexico executed nine men starting in 1933 until more than seven decades later when it abolished the death penalty. The state's most recent execution in 2001 was its first since 1960. Former Gov. Bill Richardson, a Democrat, cited flaws in how the death penalty was applied when he signed the legislation that abolished it. He said the criminal justice system must be perfect if it will be used to put someone to death.
I presume Gov Martinez genuinely believes that justice demands the death penalty for cop killers and child killers (although her strong rhetoric makes me wonder if she shares GOP Prez nominee Donald Trump's view that we should have a mandatory capital punishment for cop killers as well as for child killers). And yet, given the current timing of her push for bringing the death penalty back to New Mexico, I cannot help but wonder if Gov Martinez (1) has some strong internal polling numbers suggesting citizens in the state also strongly favor a return of the death penalty, and (2) thinks that the death penalty can be an effective "wedge" issue for her to help get her preferred state legislative candidates elected this fall.
Terrific TakePart series of article and commentary on "Violence and Redemption"
TakePart has this great "Big Issue" collection of articles, videos and commentary under the heading "Violence and Redemption: Can Rehabilitating Felons Make Us Safer." There is so much important and insightful material collected here, I cannot easily link to it all. But I can provide this introductory paragraph and some headlines/links to whet appetites:
With 5 percent of the world’s people but 25 percent of the world’s incarcerated, the United States is home to the largest prison population in the world.
A meaningful reduction in the prison population of 2.3 million people can’t happen without addressing those incarcerated for violent offenses. They make up at least 53 percent of the total in state prisons. Is that too many? Are they in for the right reasons? Are they hopeless cases, or can something be done to help reform and rehabilitate them, make them valuable members of society who won’t commit crimes again? Advocates cite three possible approaches to this problem: reforming justice, rehabilitation, and forgiveness.
Sunday, September 18, 2016
Any distintive thoughs, dear readers, on notable new video, "Jay Z: 'The War on Drugs Is an Epic Fail'"?
This past week, the New York Times released this "op-ed" and video, which is embedded below, under the headline "Jay Z: ‘The War on Drugs Is an Epic Fail’." This description of the video is provided by Asha Bandele, a senior director at the Drug Policy Alliance:
This short film, narrated by Jay Z (Shawn Carter) and featuring the artwork of Molly Crabapple, is part history lesson about the war on drugs and part vision statement. As Ms. Crabapple’s haunting images flash by, the film takes us from the Nixon administration and the Rockefeller drug laws — the draconian 1973 statutes enacted in New York that exploded the state’s prison population and ushered in a period of similar sentencing schemes for other states — through the extraordinary growth in our nation’s prison population to the emerging aboveground marijuana market of today. We learn how African-Americans can make up around 13 percent of the United States population — yet 31 percent of those arrested for drug law violations, even though they use and sell drugs at the same rate as whites.
Notably, this Vox commentary by German Lopez provides a sharp review of this effort via its extended headline: "Jay Z’s viral video about the war on drugs gets mass incarceration all wrong: The video is well argued and beautifully drawn. It’s also completely wrong."
Thursday, September 15, 2016
"Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System"
The title of this post is the title of this intriguing article authored by Laura Appleman now available via SSRN. Here is the abstract:
Criminal justice debt has aggressively metastasized throughout the criminal system. A bewildering array of fees, fines, court costs, non-payment penalties, and high interest rates have turned criminal process into a booming revenue center for state courts and corrections. As criminal justice administrative costs have skyrocketed, the burden to fund the system has fallen largely on the system’s users, primarily poor or indigent, who often cannot pay their burden.
Unpaid criminal justice debt often leads to actual incarceration or substantial punitive fines, which turns rapidly into “punishment.” Such punishment at the hands of a court, bureaucracy, or private entity compromises the Sixth Amendment right to have all punishment imposed by a jury. This Article explores the netherworld of criminal justice debt and analyzes implications for the Sixth Amendment jury trial right, offering a new way to attack the problem. The specter of “cash-register justice,” which overwhelmingly affects the poor and dispossessed, perpetuates hidden inequities within the criminal justice system. I offer solutions rooted in Sixth Amendment jurisprudence.
September 15, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)
Tuesday, September 13, 2016
"As Marijuana Prohibition Winds Down, What Will Control Freaks Ban Next?"
The title of this post is the enjoyably provocative headline of this notable new Reason piece authored J.D. Tuccille. Here are some excerpts which appeal to my libertarian instincts while also highlighting why I think much more that just the wicked weed is implicated in movements to reform modern marijuana laws:
As Prohibition, America's first national effort to penalize people for taking pleasure in imbibing psychoactive substances, became increasingly unpopular and widely flouted at the end of the 1920s, an assistant commissioner for the United States Bureau of Prohibition cooked up a successor project. Harry Anslinger left his old gig and took on the role of commissioner of the new Federal Bureau of Narcotics — a predecessor agency to the DEA — and helped launch the national crusade against marijuana. It was a newly demonized intoxicant to give purpose to the power and personnel that had been assembled for the faltering crusade against booze.
"This propitious marriage of state power and moral suasion would yield a dramatic expansion of federal policing and an increase of state and local policing in the quasi-military sphere of crime control," Harvard historian Lisa McGirr writes in her 2015 book, The War on Alcohol: Prohibition and the Rise of the American State. "The war on alcohol and the war on drugs were symbiotic campaigns," McGirr told Reason in an interview. "Those two campaigns emerged together, [and] they had the same shared...logic. Many of the same individuals were involved in both campaigns."
McGirr sees the "federal penal state" of intrusive policing and mass incarceration that arose during Prohibition as the result of the combined efforts of old-time religious scolds who disapproved of alcohol use and Progressives who were eager to use state power to address what they saw as social ills. Together they nationalized what had traditionally been an individual, local, or state concern, gave the government unprecedented power to regulate people's lives, and escalated their efforts as people refused to submit.
But even as it was a consequence of growing state power, Prohibition also helped to normalize the idea that the federal government could and should boss us around. "Faced with the unintended consequences of Prohibition, many men and women began to rethink their commitments to the war on alcohol, but they did not altogether reject the state's right to police and punish the use of other recreational narcotics," McGirr adds in her book.
People also grew accustomed to an activist and intrusive state overall, paving the way for the New Deal and the regulatory state of today. A massive government apparatus, once created, can be used for any purpose its masters desire. "War is the health of the state," Randolph Bourne famously noted. But war doesn't necessarily require ships and planes launched against other nations; it can be waged against a government's own people by police who are empowered by the law to see enemies behind every door.
Then as now, the law was unevenly enforced. If you were a New York socialite during Prohibition, you could continue to drink illicit booze at parties or in speakeasies in relative safety since you weren't considered part of a "problem" population and could push back against authorities — urban ethnics were deliberately targeted for harsher treatment when they broke the law, as were rural blacks. Likewise, Malia Obama was at little risk of more than a parental tongue-lashing when she was caught smoking a joint last month while young people — African-Americans, in particular — whose fathers don't reside in the White House often suffer nastier consequences in the absence of helpful political connections.
Even for booze, the double standard for enforcement remains. While mayor of New York City, national nanny Michael Bloomberg ceaselessly sought to mold and scold his own suffering subjects as he broke the law himself to quaff wine in public. "They were behaving," he said of his friends who were given a pass by police. He's not one of those people, you know, and so he and his buddies shouldn't have to obey rules meant to rein in "problem" groups.
So the desire to control remains in place, nurtured by policy-makers and their supporters who never intend themselves to be the target of enforcement. That desire remains even as public pushback causes yet another prohibition to stumble and fall. Prohibition has its own logic — of control and power — that has very little to do with the specific prohibition at any given moment. Those who would mold the world to suit their vision see no reason to back off their efforts, they've created a vast bureaucracy of enforcers who make their living pushing us around, and they've accustomed us to a state that pokes and prods us at every turn.
So celebrate the relegalization of marijuana for sure. Just don't convince yourself that it means we've seen the end of prohibition, or of the abuses that intrusive government brings. The next big prohibition might be kratom, or another drug, or a grab-bag of substances and activities of which our rulers disapprove. What is banned matters less than the fact of the ban and the apparatus that keeps the ban in place. Winning doesn't mean ending a prohibition, it means disempowering the prohibitionists.
In addition to providing an amusing post title, this commentary inspires me to remind readers once again that one way to keep up with marijuana prohibition winding down is to regularly read my Marijuana Law, Policy and Reform. There you will find these recent posts, among many, many others:
- Crimmigration and cannabis: "Marijuana Is Legal in Colorado — But Only If You're a U.S. Citizen"
- "Study: Can marijuana improve PTSD symptoms for veterans?"
- New medical marijuana regulations create rift among California's marijuana policy reform advocates
- New research indicates that daily marijuana users are less fat
Monday, September 12, 2016
Former GOP Ohio Attorney General explains why he is convinced "the death penalty is just not worth it any more"
Over the weekend my local paper published this capital commentary by Jim Petro, a widely-respected local Republican leader who served as Ohio Attorney General from 2003 to 2007. Here are excerpts:
As Ohio attorney general, I oversaw 18 executions in accordance with Ohio law. As a state legislator before that, I helped write Ohio’s current death-penalty law. We thought maybe it would be a deterrent. Maybe the death penalty would provide cost savings to Ohio. What I know now is that we were wrong. What I am coming to understand is just how wrong we were, and what needs to be done to fix our mistake.
My direct experience with executions makes me more than a mere spectator as Ohio continues to struggle with capital punishment. Since I left office in 2007, I’ve been following developments and watching those most deeply engaged with it.
Earlier this week, Ohioans to Stop Executions (OTSE) released its third report in as many years, providing perspectives on the status of Ohio’s death penalty. I am in agreement with the report, “A Relic of the Past: Ohio’s Dwindling Death Penalty,” which details a continuing decline in executions and new death sentences in Ohio while highlighting the disparities between counties that prosecute death cases.
In 2015, only one new death sentence was handed down. Cuyahoga and Summit counties, two jurisdictions responsible for more than 25 percent of death sentences, initiated zero new death penalty cases last year. In fact, new death sentences overall were down for the fourth year in a row. There were three in 2014, four in 2013, and five in 2012.
It has become clear to me that what matters most is the personal predilections of a county prosecutor. Consider Cuyahoga County, which until 2012 was seeking the death penalty in dozens of cases a year. Last year Cuyahoga County sought none. Crime rates did not plunge. There was a new prosecutor. On the other hand, consider Trumbull County, with one of the lowest homicide rates of Ohio counties which sentence people to death. Trumbull County leads the state with the highest death-sentence-per-homicide rate. Why? Again, the personal preference of the county prosecutor matters most.
The new OTSE report addresses many other issues, including 13 wrongful convictions and exonerations in Ohio death cases. After serving as attorney general, my chief concern was that our state has sentenced individuals to death or lengthy prison sentences for crimes they did not commit....
Most urgently in my view, the new report catalogs the reluctance of Ohio legislators to consider most of the 56 recommendations made in 2014 by the Supreme Court Joint Task Force on the Administration of Ohio’s Death Penalty. The charge to that task force was to find ways to make Ohio’s death penalty more fair and accurate.
Only a handful of the recommendations have been considered, and not those which would make the biggest difference. For example, the recommendation to narrow the felony murder rule would address much of Ohio’s disparity in death sentencing. Thirteen of the recommendations, individually and collectively, would go a long way toward preventing wrongful convictions. In failing to act, legislators effectively maintain the status quo, which is a broken system that currently serves only the interest of Ohio prosecutors. That is a grave mistake.
Another grave mistake is the terrible suggestion by the director of the Ohio Prosecuting Attorneys Association that Ohio adopt the gas chamber to conduct executions. I hope Gov. John Kasich and all Ohio legislators soundly reject that notion. It is offensive to the human experience and has no place in our great state.
I am convinced that the death penalty is just not worth it any more, and I don’t think it can be fixed. Starting in January 2017, 28 Ohioans have execution dates. If we’re going to have the death penalty, then it must not be carried out until the legislature implements the task force’s reforms intended to ensure fairness and accuracy.
Thursday, September 08, 2016
Top Texas criminal judges wonders about value of LWOP sentencing and its lesser process
This local article from Texas reports on interesting comments by a top state judge in the state about LWOP sentences. Here are excerpts from the article:
Judge Larry Meyers, the longest-serving member of the state’s highest criminal court, has grown uncomfortable with the way Texas allows for life in prison without parole, calling it a slow-motion death sentence without the same legal protections given to defendants who face the death penalty. It can be argued, Meyers said, that the prospect of decades of prison — ended only by death from old age, medical problems or even violence — is as harsh or harsher than execution.
Even so, life without parole can be given in some capital murder cases without jurors answering two questions that must be considered before issuing a death sentence — is the defendant a future danger to society, and are there any mitigating factors such as mental disability or childhood abuse that weigh against capital punishment?
“I’m not saying the death penalty is unconstitutional. I think right now it’s about as fair as it could be,” Meyers said. “But there are two variations of the death penalty; one is just longer than the other. People are getting a (life without parole) death sentence without the same safeguards and procedures that you get when there is a death sentence.”
Larry Meyers has been a judge on the Texas Court of Criminal Appeals since 1993. Meyers, the only Democrat on the Texas Court of Criminal Appeals, plans to make changing the life-without-parole system an issue of his re-election campaign, an admittedly uphill battle after he switched from the Republican Party in 2013 over disagreements in its direction under the surging tea party movement.
His Republican opponent in the Nov. 8 election, 22-year state District Judge Mary Lou Keel of Houston, believes Meyers has strayed from his principal task as a judge. “Policy issues like this are best left to the Legislature,” Keel said. “Doesn’t he have enough work to do as a judge?”...
Life without parole, an option for capital murder cases since 2005, has been credited with helping to sharply reduce the number of death row inmates by allowing prosecutors to reserve capital punishment for the worst cases, yet ensure that other convicted murderers are permanently removed from society.
Since life without parole became an option, the population of Texas’ death row has fallen to 244 inmates, down about 40 percent, as the pace of executions has outstripped the number of new death sentences. In contrast, 782 inmates were serving life without parole for capital murder as of July 31. An additional 54 inmates are serving life without parole after repeat convictions for sexually violent offenses, including crimes against children, since the Legislature allowed the punishment for the crime of continuous sexual abuse in 2007....
Seeking life without parole is by far the simpler option. Jurors are easier to seat — death penalty opponents aren’t allowed on juries if execution is an option — and there is no punishment phase trial. The appeals process also is less rigorous, with death row inmates granted two appeals before the state’s highest criminal court, while inmates serving life without parole go through the normal process. Meyers, a 23-year member of the Court of Criminal Appeals, believes life without parole has been made too simple, providing “an easy, inexpensive way of getting the death penalty.”
It would be fairer, he said, to let jurors consider some variation of the future danger question and to allow defense lawyers to present mitigating evidence. If jurors cannot agree that life without parole is appropriate, the defendant would get a life sentence and be eligible for parole after 40 years or some other suitable time, Meyers said.
The bigger reform — what Meyers called the “smarter fix” — would be for the Legislature to end capital punishment, making life without parole the ultimate punishment and including an option for parole. The political reality in Texas, by far the nation’s top death penalty state, makes that an extremely unlikely option for legislators, Meyers admits. “But right now, as I see it, there’s just two options — both for death,” he said....
Meyers said his change of heart on life without parole didn’t come about because of appeals. Nobody is going to tell his court that they improperly received a no-parole term when the alternative is a death sentence, he said. Instead, Meyers said, his qualms arose after coming to see the sentence as a delayed death penalty — one that is particularly harsh on young people — when a typical murder conviction is often enough to lock away killers until they are no longer a danger.
When the Legislature debated life without parole in the mid-2000s, prosecutors were divided on the best course to take, but many opposed adding a “long, drawn-out” sentencing hearing to determine the difference between a no-parole sentence and parole eligibility after 40 years, said Shannon Edmonds, staff attorney with the Texas District and County Attorneys Association. “You could argue that it’s not much difference. It was a lot of squeeze without much juice,” Edmonds said.
In addition, many capital murder cases are decided by a plea bargain that allows defendants to choose perpetual prison time over execution. Some prosecutors feared losing bargaining leverage to a defense lawyer who threatened, for example, to drag out a sentencing hearing for three weeks unless offered a sentence with parole for a lesser crime like murder, Edmonds said.
Life without parole raises questions about whether Texas is imprisoning people long past the point that they “will ever be dangerous,” said Kathryn Kase, executive director of Texas Defender Service, a nonprofit that provides capital murder legal representation at trial and on appeal. “We’ve got places in prisons that look like nursing homes. It makes me wonder, as a taxpayer, are these people dangerous? Why are we paying the extra cost of imprisoning them when they are geriatrics?” Kase said.
September 8, 2016 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)
Wednesday, September 07, 2016
The title of this post is the title of this notable new paper by Eric Fish now available via SSRN. Here is the abstract:
American prosecutors are conventionally understood as having two different roles. They must seek the defendant’s conviction as adversary advocates, and they must also ensure the system’s fairness as ministers of justice. But these two roles are at odds. Legal scholarship and the organized bar try to elide this conflict by describing prosecutors as having a “dual role,” meaning that they must perform both functions. But the resulting role confusion allows adversarial ethics to dominate in practice, leading to excessive punitiveness and wrongful convictions.
This Article argues that the “dual role” model should be scrapped, and that American prosecutors should not be understood as adversary lawyers at all. Certain features of the American system — prosecutorial discretion, the limited role of victims, and the resolution of nearly all cases through plea bargain agreements — make it inappropriate, indeed dangerous, for American prosecutors to behave like partisan lawyers.
In seeking to move beyond the “dual role” model, this Article distinguishes three possible roles for prosecutors. The first is adversarialism, in which a prosecutor exercises their discretion strategically in order to win convictions and punishments. The second is legal neutrality, in which a prosecutor behaves like a disinterested adjudicator whose decisions are dictated by established rules. The third is value weighing, in which a prosecutor exercises their discretion by choosing among a limited set of public values that are implicit in our legal institutions.
The Article ultimately argues that the American prosecutor’s role should be understood as combining the logics of legal neutrality and value weighing. When there is a binding rule and the prosecutor lacks discretion, they should act as a neutral conduit for the established legal principles. And when the prosecutor faces a discretionary choice, they should act as an executive official committed to implementing a certain normative vision of justice. But the prosecutor should never act as an adversary committed to winning for its own sake. The Article also considers how the institutional structure of prosecutors’ offices, and the professional incentives that prosecutors face, might be reformed in order to accommodate such a non-adversarial role.
Rounding up some recent commentary on recent Brock Turner controversies
Folks who following notable sentencing stories, and the notable reactions from various folks to notable sentencing stories, surely know the name Brock Turner. And recent developments in his sentencing saga have prompted another round of useful commentary from various sources. Here is a sample of this commentary, via links and full headlined:
From Mic here, "Brock Turner just registered as a sex offender. Here's what that means for him."
From The National Review here, "California Democrats Suddenly Think Mandatory Minimums Are a Good Idea"
From Slate here, "The Armed Protests Outside Brock Turner’s Home Are Dangerously Counterproductive"
From Vox here, "The justice system needs to take rape more seriously. That doesn’t mean longer prison sentences."
Some (of many) prior related posts on the Brock Turner case:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
- California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
Tuesday, September 06, 2016
You be DOJ: after SCOTUS reversal, should former Virginia Gov Bob McDonnell be tried for corruption again?
The "you-be-the-judge"-type question in the post is prompted by this Washington Post article headlined "U.S. attorney’s office recommends putting Robert McDonnell on trial again." Here is the basic context:
Less than three months after the Supreme Court vacated the convictions of former Virginia governor Robert F. McDonnell, the U.S. attorney’s office that prosecuted the Republican has recommended to Justice Department higher-ups that they endeavor to try him again, according to people familiar with the case.
The recommendation from the U.S. attorney’s office in the Eastern District of Virginia does not guarantee that McDonnell will once again have to battle corruption charges in court. The decision ultimately rests with senior officials at the Justice Department, including the deputy attorney general and possibly the attorney general. But it is a significant step that demonstrates how despite a Supreme Court ruling upending McDonnell’s convictions and significantly narrowing what can be considered public corruption, the prosecutors who convinced jurors that he was guilty the first time believe they could do it once more.
An attorney for McDonnell, a Justice Department spokeswoman and a spokesman for the U.S. attorney’s office all declined to comment. Asked in an interview earlier this week whether she would accept the recommendation of prosecutors who handled the case — whatever that might be — Attorney General Loretta E. Lynch said, “That’s working its way through the process, so I’m not able to give you a comment on that.”
Prosecutors have until Sept. 19 to formally inform the U.S. Court of Appeals for the 4th Circuit what they intend to do and — if they are going forward — to set a briefing schedule.
McDonnell and his wife, Maureen, were convicted in 2014 of public corruption charges after jurors concluded that they lent the power of the governor’s office to Richmond business executive Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury goods. Prosecutors alleged that the McDonnells helped Williams specifically by arranging meetings for him with other state officials and allowing him to host an event at the governor’s mansion to promote a product he was trying to sell. In one case, prosecutors alleged, the governor pulled out a bottle of that supplement, Anatabloc, and told other state officials that it worked for him....
Justice Department officials are probably weighing not only whether a case could be brought again but also whether it should. McDonnell’s first trial spanned five weeks, and it came after months of bitter and time-consuming pretrial litigation. Four prosecutors in the Eastern District of Virginia and the Justice Department’s public integrity section were consumed by it. McDonnell was ultimately sentenced to two years in prison; his wife to a year and a day.
And from the case came a unanimous Supreme Court ruling that experts say makes prosecuting politicians on corruption charges substantially more difficult than it was before. It is possible more successful challenges could lead to a further narrowing of corruption laws and hamper other investigations. The Supreme Court’s ruling dealt a critical blow to the case against McDonnell but not an immediately fatal one. The court decided that jurors were wrongly instructed on the meaning of the term “official act” — the thing that prosecutors were required to prove McDonnell did or tried to do for Williams in exchange for the businessman’s favors — and offered a definition far more narrow than what jurors had considered....
McDonnell’s defense attorneys had wanted the case to be thrown out wholesale on the grounds that prosecutors had presented insufficient evidence of an official act. But the Supreme Court declined to do that, saying both sides had not had an opportunity to address the question in light of the court’s clarified definition.
And the opinion offered a possible way forward. While setting up meetings or calling other government officials could not be official acts by themselves, Roberts wrote, they could serve as evidence of an agreement to perform such an act — if, for example, jurors concluded the meeting helped show an official was attempting to pressure or advise another official to do something more....
If the Justice Department allows prosecutors to go forward, they will first have to convince the U.S. Court of Appeals for the 4th Circuit that there is enough evidence to proceed — which is no guarantee. That decision itself could be appealed to the Supreme Court. And if they ultimately go to another trial, prosecutors would have to recalibrate how they present their case, focusing less on the meetings and events themselves than on how they show that Williams and McDonnell had broader plans. That will not be easy. Roberts noted in the opinion that several McDonnell subordinates had testified at trial that the governor “asked them to attend a meeting, not that he expected them to do anything other than that.”
For a variety of reasons, I am inclined to conclude that the former Gov has, at least in some sense, already been punished enough. And, I am especially inclined to say I am not so keen on having the feds spend a lot more of my tax dollars going hard again after someone who poses no threat to public safety. But perhaps others view public corruption concerns differently, and thus the sincere question in the title of this post.