Thursday, July 30, 2015

"Miller v. Alabama as a Watershed Procedural Rule: The Case for Retroactivity"

The title of this post is the title of this timely piece available via SSRN and authored by Beth Caldwell. Here is the abstract:

Three years ago, in Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole (LWOP) under mandatory sentencing schemes amounts to cruel and unusual punishment in violation of the Eighth Amendment.  Over the past few years, courts have reached conflicting conclusions regarding whether the rule the Supreme Court pronounced in Miller applies retroactively to the cases of over 2,100 prisoners whose convictions were final when the case was decided.  The Supreme Court granted certiorari in Montgomery v. Louisiana and is now poised to decide whether Miller must apply retroactively. The issue has primarily been framed as a question of whether the Miller rule is substantive, and therefore retroactive, or procedural, and therefore not retroactive. Ten state supreme courts have concluded that Miller is retroactive because it created a new substantive rule.  The four states that have determined Miller is not retroactive have done so on the basis that its rule is procedural, rather than substantive.  However, Miller’s rule is not clearly substantive or procedural.

This Essay presents an alternative argument for concluding that Miller is retroactive — one that has been marginalized in the discourse thus far but was just relied upon by the Connecticut Supreme Court in Casiano v. Commissioner.  I argue that even if the Supreme Court were to determine that Miller announced a new procedural rule, it should still apply retroactively because of its groundbreaking nature.  The Miller decision has sparked a transformation in juvenile sentencing across the country.  Directly in response to Miller, eight states have passed legislation expressly outlawing LWOP sentences for juveniles.  Nine other states have created new resentencing or parole procedures that go far beyond the requirements of Miller to offer juvenile offenders more meaningful opportunities for release at younger ages.  Given the widespread changes the opinion has inspired, it should be categorized as a watershed rule and should apply retroactively. 

July 30, 2015 in Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Recent capital developments prompts query: "Is the death penalty dead in Washington?"

The question and quote in the title of this post is from the headline of this new notable local article reporting on a notable new death penalty developments in Washington state.  Here are the details:

Some believe prosecutor Dan Satterberg's announcement Wednesday will have far reaching implications. "Today I am announcing my decision to with withdraw the notice of intent to seek the death penalty in the case of the State vs. Michele Anderson.

"These sorts of the decisions reverberate all over the state," said criminal defense attorney Todd Maybrown.

Maybrown believes Wednesday's announcement about Anderson, along with the jury's decision to spare Joseph McEnroe's life for the Carnation killings, and another jury who last week sentenced cop killer Christopher Monfort to life in prison, point to a turning of a tide.

"There have been many points along the way here when it seemed clear that the time has come that we as a community say we don't need the death penalty," Maybrown said. "We get no benefit from the death penalty, and resources are so scarce that we have to be more thoughtful."

"I pretty much reject the 'It's too expensive argument,'" said Snohomish County Prosecutor Mark Roe. "The reason I reject it is because the same people who are making (the argument) are the same people who are pursuing a strategy to make it expensive."

Roe is reluctant to generalize about the death penalty because every case is different. Out of more than 30 aggravated murder cases, he was in favor of seeking the death penalty on only three of them. "I think what it really shows is prosecutors and jurors in the state of Washington are really careful. And thoughtful about when they seek the death penalty and jurors, and when they vote to carry it out," Roe said.

July 30, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, July 29, 2015

"Should Therapists Have to Report Patients Who Viewed Child Pornography?"

The quesion in the title of this post is the headline of this intriguing new piece from The Atlantic discussing an intriguing legal and policy issue developing in California.  The piece's subheadline highlights one reason the answer to the question should perhaps be no: "A new law meant to protect children could lead to fewer pedophiles getting treatment before acting on their sexual impulses." Here is an excerpt:

Under a California law that went into effect at the beginning of this year, ... any real life therapist who learns that a patient has viewed child pornography of any kind would be required to report that information to authorities.  The requirement applies to adults who admit to having viewed explicit images of children.  And it even applies to teenage patients who tell their therapists about having viewed images sent to them by a peer engaged in sexting.

Over four decades, “California has expanded the scenarios under which therapists are legally required to break their clients' confidentiality and report to authorities a patient's criminal confessions or threats to hurt someone else,” the L.A. Times reports. “Requirements include disclosing confidential information if patients are an imminent danger to themselves or others; if a patient is a child who is the victim of a crime and reporting is in the best interests of the patient; and if the therapist learns that a child is the victim of neglect or abuse or is in imminent danger.”

Under the old standards, therapists also had to report patients who “knowingly developed, duplicated, printed or exchanged child pornography,” the article notes. “But the statute did not mention viewing or downloading material from the Internet.”

Sean Hoffman, who works for a group that represents Golden State district attorneys, told the newspaper that the law can help police to identify people who view child pornography and create a massive market for material produced through the abuse and exploitation.  “If we don't know about it,” he said, “we can't prosecute it."  The effect would ostensibly be fewer victims of an abhorrent industry.

But it seems to me that this new standard is likelier to make California more dangerous for children, an unintended consequence some therapists are warning against in a lawsuit they’ve filed in hopes of forcing a return to the previous standard.

July 29, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (19)

Taking stock of the tough-on-crime crowd's "resolute oarsman, pulling with all his might against the current" number of helpful readers have already made sure I did not miss this terrific lengthy Slate piece by Mark Obbie profiling Bill Otis.  The article is a great read, and it generally gives Bill the respect he has earned and deserved in modern debates over modern sentencing.  The piece is headlined "Last Man Standing: Nothing can stop the bipartisan coalition pressing for criminal justice reform. Nothing, except maybe Bill Otis."  Here is one of the many great passages from the piece:

In congressional hearings, seminars, and news stories heralding the bipartisan reform movement and the practical inevitability of changes in federal law, Otis serves as the go-to voice for maintaining tough-on-crime sentencing.

Pundits, policy wonks, academics, and journalists seem in lockstep agreement that there really is no debate anymore about whether it’s time to pull back from the extremes that gave America its distinction as the world’s prison warden. As names like Meese, Gingrich, and Koch speak up on the other side of the divide, Otis seems increasingly isolated, the only man fighting a war that ended a long time ago.

But there are compelling reasons — strategic and substantive — not to count Otis and his views out just yet. For all the talk that criminal justice reform has finally reached critical mass, the last Congress failed to act, even when offered the low-hanging fruit of the Smarter Sentencing Act, which would only tinker modestly with the length of sentences for nonviolent drug offenses. This week, Iowa Republican Chuck Grassley, the chairman of the Senate Judiciary Committee and a longtime opponent of reform, signaled that he would finally bow to pressure from all sides and deliver a bipartisan reform bill by the time Congress takes its summer break. But a wide gulf surely separates Grassley’s version of reform from practically everyone else’s, and none of the proposals before Congress are more than a tentative first step toward undoing decades of harsh sentencing policy. Reformers’ best-case scenario is a long slog ahead, with Otis and his arguments dogging their every step.

July 29, 2015 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (42)

Tuesday, July 28, 2015

Are "deep red states" really "rethinking the death penalty"?

The question in the title of this post is prompted by this new American Prospect piece headlined "Why Deep Red States Are Rethinking the Death Penalty." Here are excerpts:

[Marc] Hyden, 31, [is] one of the nation’s leading conservative anti-death-penalty activists, a small but growing group that sees the death penalty as antithetical to conservative values and the cause of limited government.  Expensive, inefficient, and lethal, execution has come to represent much that’s wrong with big government today in many conservatives’ minds — particularly millennials.

And Hyden is one of their most visible spokesmen.  As the national advocacy coordinator at Conservatives Concerned About the Death Penalty (CCATDP), a project at Equal Justice USA, Hyden speaks at Republican conferences and clubs, liaises with the media, attends Tea Party rallies, and is, more generally, part of an insurgency of conservative activists seeking to end capital punishment in deep red states.

That movement has been most visible in Nebraska, where a campaign to ban the death penalty has inspired fierce debate among the state’s deep red electorate.  This past May, Nebraska’s heavily Republican legislature voted both to pass LB268, a repeal of the state’s death penalty, and override a veto from Republican Governor Pete Ricketts.  But death penalty advocates like Ricketts have vowed not to go down without a fight. On June 1, Nebraskans for the Death Penalty, a recently formed group of the governor’s political allies, filed an initial petition with the Secretary of State to put a repeal of LB268 on the state’s ballot in 2016....

The mere concept of the state putting someone to death is antithetical to the principle of limited government.  “There’s no greater power than the power to take a life, and our government currently retains that authority,” says Hyden, “If you don’t trust a government to deliver a piece of mail or launch a healthcare website, why would you trust them to take a life?”...

These conservative arguments against the death penalty aren’t just taking hold in Nebraska. They seem to be having an effect in other deeply conservative states, as well.

One state south, in Kansas, a repeal bill was introduced in the House this year, but it failed to advance. According to Mary Sloan, the executive director of the non-partisan Kansas Coalition Against the Death Penalty, the bill will carry over into the 2016 legislative session and is expected to have Democratic, moderate Republican, and conservative Republicans sponsors.  Sloan is optimistic about the bill’s chances, citing a need to focus on more immediate issues like the budget, and not a lack of support, as the reason for its failure to advance this year.

Tennessee, another conservative state, is not, as Kansas appears to be, on the brink of abolition, but it’s still closer to getting rid of the death penalty than you may think. Stacy Rector, the executive director of Tennesseans for Alternatives to the Death Penalty, says a few years ago she would have said her state was a decade or so away from passing a repeal — now her best guess is three to five years. “It feels like the speed at which things are changing has kicked into high gear,” she says.

The obvious question to ask is, of course, Why now? There’s an argument to be made that it’s, at least in some part, a product of generational change.  The more libertarian-leanings of young Republicans are well documented.  Sixty-eight percent of millennial Republicans, for example, support the legalization of marijuana, compared to just 47 percent and 38 percent of their Gen X and Boomer counterparts, respectively.  The death penalty seems to be another one of those issues in which young Republicans are choosing limited government over the traditional party line.

When he goes out and talks to young people, Hyden definitely notices how receptive they are to his arguments about government overreach. “I love talking to young people,” he says, “They tend to be much more skeptical of government power, in general.”

July 28, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

More talk that all the talk about federal sentencing reform is about to produce some action

As July winds down and as more opponents of sentencing reform have become more vocal, I was coming to believe that all the talk (and more talk) of bipartisan efforts to finalize a federal sentencing reform bill was going to end up as another example of inside-the-Beltway sound and fury signifying nothing.  But this new New York Times article, headlined "Push to Scale Back Sentencing Laws Gains Momentum," has me wanting to believe that optimism is still more justified than cynicism on this sentencing reform front. Here are excerpts:

For several years, a handful of lawmakers in Congress have tried to scale back tough sentencing laws that have bloated federal prisons and the cost of running them.  But broad­based political will to change those laws remained elusive.

Now, with a push from President Obama, and perhaps even more significantly a nod from Speaker John A. Boehner, Congress seems poised to revise four decades of federal policy that greatly expanded the number of Americans — to roughly 750 per 100,000 — now incarcerated, by far the highest of any Western nation.

Senator Charles E. Grassley, Republican of Iowa and chairman of the Senate Judiciary Committee who has long resisted changes to federal sentencing laws, said he expected to have a bipartisan bill ready before the August recess.  “It will be a bill that can have broad conservative support,” said Mr. Grassley, who as recently as this year praised the virtues of mandatory minimums on the Senate floor....

Of the 2.2 million men and women behind bars, only about 207,600 are in the federal system, according to the Federal Bureau of Prisons.  But because the federal system has grown at the fastest rate of any in the country, many on the left and the right say they believe it exemplifies the excesses of America’s punitive turn. “If we can show leadership at the federal level,” Mr. Durbin said,  “I think it will encourage other states to open this issue up for debate.  The notion that we can create a bipartisan force for this really has value.”...

The dynamic is similar to the fight this year over changes to the Patriot Act when younger, more libertarian members — again supported by Mr. Boehner and Mr. Obama — worked with Democrats to change the law and eventually even won over a reluctant Mr. Grassley.

July 28, 2015 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Obama Administration talking up restoring Pell grants for incarcerated

As reported in this Wall Street Journal article, the "Obama administration plans to restore federal funding for prison inmates to take college courses, a potentially controversial move that comes amid a broader push to overhaul the criminal justice system." This strikes me as big (and potentially controversial) news, and here are more of the details:

The plan, set to be unveiled Friday by the secretary of education and the attorney general, would allow potentially thousands of inmates in the U.S. to gain access to Pell grants, the main form of federal aid for low-income college students. The grants cover up to $5,775 a year in tuition, fees, books and other education-related expenses.

Prisoners received $34 million in Pell grants in 1993, according to figures the Department of Education provided to Congress at the time. But a year later, Congress prohibited state and federal prison inmates from getting Pell grants as part of broad anticrime legislation, leading to a sharp drop in the number of in-prison college programs. Supporters of the ban contended federal aid should only go to law-abiding citizens....

A 2013 study by the Rand Corp. found that inmates who participated in education programs, including college courses, had significantly lower odds of returning to prison than inmates who didn’t. Some congressional Democrats have proposed lifting the ban. Meanwhile, administration officials have indicated they would use a provision of the Higher Education Act that gives the Education Department the authority to temporarily waive rules, such as the Pell-grant ban, as part of an experiment to study their effectiveness.

Education Secretary Arne Duncan and Attorney General Loretta Lynch are expected to announce the program, which likely would last three to five years to yield data on recidivism rates, at a prison in Jessup, Md., on Friday. Key details aren’t yet clear, such as which institutions and what types of convicts would be allowed to participate.

An Education Department spokeswoman declined to comment. Asked Monday whether the agency would restore Pell grants for prisoners, Mr. Duncan told reporters, “Stay tuned.”

Stephen Steurer, head of the Correctional Education Association, an advocacy group, said two Education Department officials told him at a conference early this month the agency was moving to restore Pell grants for prisoners and allow many colleges and universities to participate. Money from the grants would directly reimburse institutions for the cost of delivering courses in prisons rather than go to prisoners, Mr. Steurer said.

“It will be substantial enough to create some data and to create enough information for some evaluation,” said Rep. Danny Davis (D., Ill.), who is co-sponsoring a bill with Rep. Donna Edwards (D., Md.) to permanently restore Pell grants for prisoners. “I think the political landscape has actually changed since the 1990s,” said Ms. Edwards. “We haven’t really been able to get a handle on recidivism. We have to present some training and opportunities. These are programs that work.”

She said her bill would cost relatively little up front—in the tens of millions of dollars—while having the potential to cut societal costs over the long term by reducing recidivism rates. Maryland spends nearly $40,000 a year per prisoner, she said.

But spending tax dollars on college for prisoners strikes many as an affront to families that have borrowed heavily in recent years to cope with skyrocketing college costs, causing student debt to soar to $1.3 trillion. “If we really want to keep people out of prison, we need to promote education at younger ages,” said Rep. Chris Collins (R., N.Y.).

Last year, New York Gov. Andrew Cuomo tabled a plan to use state dollars on in-prison college courses because of opposition from lawmakers. But in California, Gov. Jerry Brown signed legislation in June that includes $12 million to promote statewide priorities, including college classes in state prison, said state Sen. Loni Hancock, whose 2014 bill paved the way for an agreement between California corrections officials and the chancellor of the state’s community colleges. Ms. Hancock said classes could begin as soon as this fall.

July 28, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Monday, July 27, 2015

Making the case that sentencing reform should (and must) include "violent" offenders

Two different law professors have recently published, in two different major papers, two important new commentaries calling for the modern sentencing reform movement to look beyond just so-called non-violent offenders.  Here I will provide links to and snippets from these pieces while suggesting both should be read in full:

In the Los Angeles Times, Andrea Roth's op-ed is headlined "Let's consider leniency for many 'violent' offenders too":

The White House's push for meaningful criminal justice reform is laudable and arguably unprecedented. But if the president and reformers hope to radically reduce the number of people in American prisons and address glaring disparities in criminal justice, focusing narrowly on nonviolent drug offenses won't get them very far.

The truth is that prosecution for violent crimes, and not prosecution for drug possession and sales, is the primary engine of mass incarceration in this country....

Conceptualizing nonviolent drug offenders as somehow qualitatively different from other offenders creates a false distinction. Many crimes labeled “violent” under our criminal codes are either directly motivated by drug addiction or directly related to drug sales or possession. A heroin-addicted veteran who walks into a garage to steal tools to feed his drug habit has committed a first-degree burglary, a “violent” crime under many state codes. A drug-motivated unarmed robbery in which the offender pushes the victim, takes cash from his wallet, and runs away is also a “violent” crime under most state laws. A person who owns a firearm and has it in his house while engaging in a drug deal has committed a “crime of violence” under the federal sentencing guidelines. In short, “violent crime” is a legally constructed term that includes within its broad reach a great deal of drug-related conduct that wouldn't be considered “violent,” as Americans colloquially use that term.

Painting nonviolent drug offenders as a special group that deserves leniency obscures the fact that even those guilty of indisputably violent acts should not be overcharged or sentenced to disproportionately long prison terms. Piling on charges and strong-arming guilty pleas under the threat of mandatory-minimum sentences are fixtures not merely of drug prosecutions, but of all prosecutions in the modern tough-on-crime era.

In the Washington Post, John Pfaff's opinion piece is headlined "For true penal reform, focus on the violent offenders":

It’s true that nearly half of all federal inmates have been sentenced for drug offenses, but the federal system holds only about 14 percent of all inmates. In the state prisons, which hold the remaining 86 percent, over half of prisoners are serving time for violent crimes, and since 1990, 60 percent of the growth in state prison populations has come from locking up violent offenders. Less than a fifth of state prisoners — 17 percent — are serving time for nonviolent drug offenses. And contrary to Obama’s claim, drug inmates tend to serve relatively short sentences. It is the inmates who are convicted of violent crimes who serve the longer terms.

Now, to be clear, not all violent offenses are especially harmful. But a significant fraction of those in prison for violent crimes are there for serious violence: murder, aggravated assault, armed robbery. Moreover, many officially nonviolent inmates have histories of violence.

In other words, for all the talk about nonviolent offenders, a majority of our prisoners have been convicted of a violent act, and even more have some history of violence. And because no one thinks we should set every drug or other nonviolent offender free, at some point we are going to have to reduce the punishments that violent offenders face if we really want to cut our breath-taking prison population down to size.

But this idea is a political third rail, and no leading politician has been willing to risk touching it. Almost all the reform proposals we have seen focus exclusively on scaling back punishments for drug and other nonviolent crimes.

That’s what made Obama’s commutations and policy speeches so disappointing. Incarceration is driven by so many local factors that neither federal sentencing reform nor presidential commutations can have much of an impact. What the president may be able to do, however, is use his national pulpit to shape the debate. Obama missed a major opportunity to influence the current conversation on how to reduce incarceration.

July 27, 2015 in Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (9)

Sunday, July 26, 2015

Could brain implants "make the death penalty obsolete"?

The technocorrections question in the title of this post is drawn from this intriguing Motherboard article authored by futurist Zoltan Istvan, headlined "How Brain Implants (and Other Technology) Could Make the Death Penalty Obsolete."  For those who believe (as I do) that technology could well become the most important (and mist disruptive) force in how we look at crime and punishment, this full piece is a must-read (and I am very grateful to the reader who sent this my way).  Here are excerpts:

The death penalty is one of America’s most contentious issues.  Critics complain that capital punishment is inhumane, pointing out how some executions have failed to quickly kill criminals (and instead tortured them).  Supporters of the death penalty fire back saying capital punishment deters violent crime in society and serves justice to wronged victims....

Regardless of the debate — which shows no signs of easing as we head into the 2016 elections — I think technology will change the entire conversation in the next 10 to 20 years, rendering many of the most potent issues obsolete.

For example, it’s likely we will have cranial implants in two decades time that will be able to send signals to our brains that manipulate our behaviors.  Those implants will be able to control out-of-control tempers and violent actions — and maybe even unsavory thoughts.  This type of tech raises the obvious question: Instead of killing someone who has committed a terrible crime, should we instead alter their brain and the way it functions to make them a better person?

Recently, the commercially available Thync device made headlines for being able to alter our moods.  Additionally, nearly a half million people already have implants in their heads, most to overcome deafness, but some to help with Alzheimer’s or epilepsy.  So the technology to change behavior and alter the brain isn’t science fiction.  The science, in some ways, is already here — and certainly poised to grow, especially with Obama’s $3 billion dollar BRAIN initiative, of which $70 million went to DARPA, partially for cranial implant research.

Some people may complain that implants are too invasive and extreme.  But similar outcomes — especially in altering criminal’s minds to better fit society’s goals — may be accomplished by genetic engineering, nanotechnology, or even super drugs.  In fact, many criminals are already given powerful drugs, which make them quite different that they might be without them.  After all, some people — including myself — believe much violent crime is a version of mental disease.

With so much scientific possibility on the near-term horizon of changing someone’s criminal behavior and attitudes, the real debate society may end up having soon is not whether to execute people, but whether society should advocate for cerebral reconditioning of criminals — in other words, a lobotomy.  Because I want to believe in the good of human beings, and I also think all human existence has some value, I’m on the lookout for ways to preserve life and maximize its usefulness in society.... 

Speaking of extreme surveillance — that rapidly growing field of technology also presents near-term alternatives for criminals on death row that might be considered sufficient punishment.  We could permanently track and monitor death row criminals. And we could have an ankle brace (or implant) that releases a powerful tranquilizer if violent behavior is reported or attempted.

Surveillance and tracking of criminals would be expensive to monitor, but perhaps in five to 10 years time basic computer recognition programs in charge of drones might be able to do the surveillance affordably.  In fact, it might be cheapest just to have a robot follow a violent criminal around all the time, another technology that also should be here in less than a decade’s time.  Violent criminals could, for example, only travel in driverless cars approved and monitored by local police, and they’d always be accompanied by some drone or robot caretaker.

Regardless, in the future, it’s going to be hard to do anything wrong anyway without being caught.  Satellites, street cameras, drones, and the public with their smartphone cameras (and in 20 years time their bionic eyes) will capture everything.  Simply put, physical crimes will be much harder to commit.  And if people knew they were going to be caught, crime would drop noticeably.  In fact, I surmise in the future, violent criminals will be caught far more frequently than now, especially if we have some type of trauma alert implant in people — a device that alerts authorities when someone’s brain is signaling great trouble or trauma (such as a victim of a mugging).

Inevitably, the future of crime will change because of technology.  Therefore, we should also consider changing our views on the death penalty.  The rehabilitation of criminals via coming radical technology, as well as my optimism for finding the good in people, has swayed me to gently come out publicly against the death penalty.

Whatever happens, we shouldn’t continue to spend billions of dollars of tax payer money to keep so many criminals in jail.  The US prison system costs four times the entire public education system in America.  To me, this financial fact is one of the greatest ongoing tragedies of American economics and society.  We should use science and technology to rehabilitate and make criminals contribute positively to American life — then they may not be criminals anymore, but citizens adding to a brighter future for all of us.

July 26, 2015 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (14)

Friday, July 24, 2015

"Convicted Republicans Plead for Mandatory Minimums Changes"

The title of this post is the hedline of this notable new Roll Call piece.  Here are excerpts:

Kevin Ring, the lobbyist who was sentenced in 2011 to 20 months in federal prison for his role in a corruption scheme, was pitching to GOP aides gathered in the Rayburn House Office Building on an effort to overhaul mandatory minimum requirements. Ring, who has been working in downtown Washington, D.C., since his April prison release, wanted the staffers to understand that current guidelines more often send low-level dealers and addicts to prison, not drug kingpins....

Two other convicted Republicans who served time in federal custody joined Ring for the lunchtime forum aimed at building support for a proposal sponsored by Republican Jim Sensenbrenner of Wisconsin and Democrat Robert C. Scott of Virginia. Red states are leading the way, and now it is “time that the federal government catches up,” Sensenbrenner, a former House Judiciary Committee chairman, said during his brief talk to staffers as they munched on Chick-fil-A lunches.

Despite positive feedback from Speaker John A. Boehner, Sensenbrenner acknowledged it would be tough to prod his bill forward. House Judiciary Chairman Robert W. Goodlatte, R-Va., is not on board. Sensenbrenner also suggested he may have “worn out my welcome” in the Senate, during the recent debacle over reauthorizing the Patriot Act, though a separate effort is gaining momentum in that chamber on a bipartisan basis.

Some federal prosecutors have expressed opposition to executive branch efforts to eliminate mandatory minimum sentences for nonviolent drug offenders, arguing they are an essential tool to dismantling drug rings.

Former New York City Police Commissioner Bernard Kerik, disgraced in 2004 when he was forced to withdraw from his nomination to head the Department of Homeland Security under President George W. Bush, said it was “incumbent” that the next White House administration tackle mandatory minimums. Kerik pulled out of consideration after admitting he had not paid taxes for a domestic worker who may have been an illegal immigrant, and later pleaded guilty to eight felony charges, including tax fraud and lying under oath. He was sentenced to 48 months in federal prison.

Knitting, chess and checkers were offered as adult continuing education classes to inmates at the federal prison camp in Cumberland, Md., where Ring and Kerik served their sentences. “You can teach an inmate real estate or accounting, but that federal conviction will keep them from getting a license,” Kerik said.

“Idle hands are the devil’s playground,” echoed Pat Nolan, who served 15 years in the California State Assembly before he was nabbed accepting an illicit campaign contribution as part of an FBI sting. He pleaded guilty to one count of racketeering and served 29 months in federal custody.

Twenty-four hours earlier, in the same room, House Judiciary Democrats unveiled legislation that would end mandatory life imprisonment for incarcerated youth, as part of a package of bills focused on sentencing and incarceration. Ranking member John Conyers Jr., D-Mich., and Rep. Sheila Jackson Lee, D-Texas, also introduced a measure aimed at increasing police accountability in the wake of high-profile deadly encounters between officers and black citizens.

“It is clear that improved national standards are necessary to address the ever-growing catalogue of incidents such as the case of Sandra Bland in Waller County, Texas, where a routine traffic stop led to an arrest and a death in custody 72 hours later,” Conyers stated Wednesday. “It is critical that we adopt smarter approaches to dealing with those involved with the criminal justice system.”

Among Republicans, the blame was on the Justice Department. Nolan fired off at U.S. attorneys, saying their jobs are “entirely political” and driven by numbers. They have the tools to protect the public and keep the streets clean, he said, “but there’s no restraint.”

July 24, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Many notable passages in recent sentencing reform speech by DAG Yates

Images (5)Earlier this week in this post, I noted that US Deputy Attorney General Sally Yates has been saying a lot of interest and import in support of federal sentencing reform efforts.  Of particular note, DAG Yates on Wednesday delivered these significant remarks at the Bipartisan Summit on Fair Justice.  The full speech should be read by all those interested in federal sentencing reform debates, and these passages struck me as worth highlighting:

[I]t’s because I’m a prosecutor that I believe so strongly in criminal justice reform.  I have seen firsthand the impact that our current system and particularly our federal drug sentencing laws, can have on communities, families, the public fisc and public confidence in our criminal justice system.  And it’s because of that I believe that we can and we must do better....

I’ve been a prosecutor for 26 years.  I believe in holding people accountable when they violate the law and I believe that some people are dangerous and need to go to prison, sometimes for a very long time.  But our system of justice must be capable of distinguishing between the individual that threatens our safety and needs to be imprisoned, versus the individual for whom alternatives to incarceration better serve not only that individual, but also make our communities safer....

While the country’s population has grown by about a third since 1980, our federal prison population has grown by 800 percent, due in large part to the influx of drug defendants. And today, under the current sentencing regime, our mandatory minimum laws do not calibrate a defendant’s sentence to match the threat that he or she poses to our safety.  At its core, one of the basic problems with our mandatory minimum system is that it’s based almost exclusively on one factor — drug quantity.  And so we have a hard time distinguishing the cartel leader who needs to be in prison for a long time from the low level mope who doesn’t.  As a result, we have some defendants serving far more time in prison than necessary to punish and deter and instead, in the words of former Attorney General Holder, sometimes we warehouse and forget.  This comes with great costs.  Costs to operate our prison system, costs to our families and communities and costs to the public’s confidence in their system of justice.

From a dollars and cents standpoint, prisons and detention now account for roughly one-third of the department’s budget.  Every dollar that we spend incarcerating non-violent drug offenders is a dollar that we can’t spend investigating today’s emerging threats, from hackers to home-grown terrorists.  These costs are swallowing up funds that would otherwise be available for state and local law enforcement, victims of crime and prevention and reentry programs....

Some states have been great innovators in criminal justice reform.  I met just yesterday with the National District Attorneys Association and I learned of many programs, from drug courts to recidivism reduction programs going on across the country designed to shift from incarceration as the only answer to prevention as the first response.  And many states, red states and blue states, like Texas, Ohio, North Carolina and my home state of Georgia, faced with exploding prison costs, have enacted bold criminal justice reform not only reducing the size of their prison populations, but also and this is the important part, reducing crime rates as well.  In the 29 states that have enacted laws limiting mandatory minimum sentences, shifting funds from incarceration to prevention, virtually every state has experienced a reduction in violent crime as well.

Despite all of this, there are some who want to keep things as they are.  One of the most common concerns that I hear expressed about eliminating or reducing mandatory minimums is that long sentences for low level defendants is the only way to secure cooperation against the worst criminals.  Not only is this inconsistent with my personal experience as a prosecutor, it is inconsistent with the data we have gathered since the Department of Justice recalibrated our drug charging policy two years ago.  As I expect you know, under former Attorney General Holder’s smart on crime policy, prosecutors were directed not to charge mandatory minimums for lower level, non-violent drug offenders and our use of mandatory minimums decreased by 20 percent.  Although some feared that defendants would stop pleading guilty and stop cooperating, our experience has been just the opposite. In fact, defendants are pleading guilty at the same rates as they were before we instituted the new policy.  So the fear that not charging mandatory minimums would prevent us from being able to work our way up the chain just hasn’t been borne out....

I am here in part because I believe that sentencing reform will make prosecutors and law enforcement officers more effective, not less.  Our ability to do good in this world — to advocate for victims, to hold wrongdoers accountable, to seek justice in all its forms — depends on public confidence in the institutions we represent.  It’s based on a hard-earned reputation for fairness, impartiality and proportionality that has forever been the bedrock of our criminal justice system.

As prosecutors, it is our obligation to speak out against injustices and to correct them when we can.  That’s why the Department of Justice is so engaged on this issue and I why I look forward to working with members of both parties as we seek a more proportional system of justice. Our nation and its citizens deserve nothing less.

Related recent prior posts:

July 24, 2015 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, July 22, 2015

DAG Yates: "our thinking has evolved on [drug sentencing], it’s time that our legislation evolved as well."

Download (6)I have noticed lots of good crime and punishment reporting at BuzzFeed lately, and this new lengthy piece discussing an interview with US Deputy Attorney General Sally Yates is the lastest must-read. It is headlined "Justice Department: You Don’t Need Mandatory Prison Sentences To Put The Right Drug Criminals In Jail," and here are excerpts:

The central argument against the sweeping changes to the war on drugs proposed by the Obama administration and others goes like this: If you take away stringent mandatory minimum sentences for drug crimes, prosecutors can no longer use the fear of prison to flip drug criminals. If they can’t flip drug criminals, they can’t go after more powerful and dangerous drug criminals. And if they can’t go after those criminals, they can’t hope to make a dent in the illegal drug trade.

This was the governing principle of the prosecutors fighting the war on drugs for decades. Just a year or so ago, under the direction of former Attorney General Eric Holder, prosecutors changed the way they charged some drug criminals, avoiding charges carrying mandatory minimums when possible. Some prosecutors worried they’d lose their ability to net the biggest fish.

Sally Quinlan Yates, a career federal prosecutor now leading Obama administration efforts to reduce or eliminate mandatory minimum drug sentences on Capitol Hill, says the old system was all wrong, and she can prove it. “There were some out there who were saying, and I understand this, ‘We’ll never get another defendant to cooperate with us, they’re not going to plead guilty, they’re not going to cooperate with us. We’ve lost our leverage, we won’t be able to work our way up the ladder,’” Yates, the deputy attorney general, told BuzzFeed News. “But that’s turned out just not to be true. In fact, the rate of guilty pleas has stayed exactly the same as it was prior to our new mandatory minimum policy and in fact the rate of cooperation is the same or has gone up slightly.”

Yates has been saying for years that mandatory minimums — which don’t apply in the vast majority of cases federal prosecutors coerce cooperation from all the time — aren’t necessary to put high-level drug offenders behind bars. Now she’s overseeing the process by which prosecutors move away from mandatory minimums, and she’s one of the leading advocates in the administration push to eliminate mandatory minimums altogether in most cases.

It’s a fundamental change to the way prosecutors think about their work when it comes to drug cases. Getting convictions without relying on mandatory minimums is a key legacy of Holder’s term as Attorney General, and now it’s a central part of Yates’ argument to lawmakers that it’s time to change the nation’s sentencing laws.

As real momentum builds on Capitol Hill to rewrite sentencing laws with the goal of refocusing prosecution and lowering the prison population — an issue of prime importance President Obama in the final months of his presidency — Yates is among the top administration aides helping the process along on Capitol Hill. She meets regularly with the members of the Senate in both parties attempting to hash out a bipartisan criminal justice compromise they can pass before the end of the year.

As that effort continues, Yates will continue to be among the most prominent administration faces pushing the Obama team position. On Wednesday, she’ll speak at a bipartisan criminal justice policy summit that organizers hope will solidify momentum and help keep the ball rolling in Congress.

Yates has drawn the praise of advocacy groups who say she’s able to connect with Republicans in a way the Justice Department often wasn’t able to when Holder was in charge, due in part to GOP rhetoric that cast Holder as the biggest villain in the Obama administration. Criminal justice is a top policy goal for Holder’s successor, Loretta Lynch, and Yates also works closely with top department officials to help push unilateral changes to prosecution procedure set down by first by Holder and now by Lynch. She also spends a lot of time talking to working prosecutors, the group that has expressed the greatest skepticism toward the sweeping changes pushed by criminal justice advocates and the administration.

“People get used to doing things a certain way. You ask folks to do something differently, there’s naturally some discomfort with that among certain prosecutors, I think,” she said. “So change is hard.” Yates knows how to speak their language. On paper, she is basically the prototypical tough-as-nails federal prosecutor....

Changes implemented by Holder as part of his smart on crime iniative — which guided prosecutors away from throwing the book at low-level nonviolent drug offenses — led to a reduction in prosecutions.  Yates is now in charge of implementing the new approach. She says most prosecutors welcome the changes, but Obama’s recent round of clemencies for nonviolent offenders sentenced under the old rules put into perspective how much of a culture change is still under way at the Justice Department.

“There are cases now that I see when I review clemency petitions and I see cases that were charged under different statutes, different laws at the time, and different policies [at the Justice Department] that certainly trouble me from a fairness perspective,” she said. “The prosecutors who were involved, they were following the department policies that were in place at the time. And so I’m not suggesting they were doing anything improper or unethical. But our thinking has evolved on this. And it’s time that our legislation evolved as well.”

Yates says prosecutors are open to changes, and she’s got the statistics to keep pushing those who are still skeptical. In the end she thinks the Justice Department will be continue to make the changes it can to the way the war on drugs is fought even if Congress can’t.

For Yates, the movement is a personal one. “At the risk of sounding really corny now, I’m a career prosecutor. I’ve been doing this for a very long time. And I believe in holding people responsible when they violate the law,” she said. “But our sole responsibility is to seek justice. And sometimes that means a very lengthy sentence, for people how are dangerous and from which society must be protected. But it always means seeking a proportional sentence. And that’s what this sentencing reform is really about.”

UPDATE: The speech that DAG Yates delivered today on these topics is available at this link. I will likely highlight a few notable passages in a later post.

July 22, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, July 21, 2015

"Why all Americans should support Obama on prison reform"

The title of this post is the headline of this notable opinion piece by Michael Brendan Dougherty at The Week. Here are excerpts: 

Obama's first words on prison reform last week were absolutely right: "We should not be tolerating overcrowding in prison.  We should not be tolerating gang activity in prison.  We should not be tolerating rape in prison — and we shouldn't be making jokes about it in our popular culture.  That's no joke.  These things are unacceptable."

Much of the commentariat blames our prison system's woes on the politics of "law and order" from the 1970s through the early part of the new millennium.  But what Obama is asking for is "law and order" for our prisoners and prisons.  He deserves bipartisan support in this.

On a philosophical level, people who think about prison conditions and sentencing issues tend to divide themselves between retributivists and rehabilitators. Backers of retributive justice believe sentences should be punishing.  Rehabilitators believe the criminal justice system should aim to restore criminals to society.  I agree with both of them, and think they should agree with each other.  I doubt that a convict can be properly rehabilitated unless he is also punished.  To punish someone for a crime is to take his moral agency seriously.  Taking that agency seriously is a sign of respect not just for the victims of crime, but the perpetrators.

America's prisons cannot possibly qualify as either punitive or rehabilitative.  Instead, they are vindictive, chaotic, and degrading.  A prison sentence should be the punishment in and of itself.  But today, prisoners are expected to cope with unimagined and uncountable horrors.  They are incentivized to join gangs.  They are encouraged to commit more violence in order to avoid violence.  Rape is pervasive and the threat of rape encourages prisoners to submit themselves to other violent men.  There is no instance in which being plunged into barely controlled danger, or being raped, can be a just punishment....

[O]ur prison system makes a mockery of the justice system.  It says that our laws are a joke since we certainly don't intend to prevent them from being broken even in institutions so closely monitored by the state itself.  It tells prisoners that they are human garbage, unworthy of even the most basic respect or safety.  The pervasiveness of our jokes about prison rape suggest that we believe that there are some deserving victims of violent sexual assault.  There are none....

President Obama has done well to help humanize prisoners.  He has emphasized that some receive unduly long or harsh punishments just for being "teenagers doing stupid things" in the absence of real help from functioning families and social institutions.  His statement of empathy, that he could have ended up in prison himself, will be used cynically by his haters.  It may well reek of sentimentalism even to some of his supporters.  But it is a more vivid way of repeating John Bradford's statement upon seeing a group of men led to execution: "There but for the grace of God, go I."

There are all sorts of social, scientific, and even fiscal reasons to justify prison reform and sentencing reform.  But the key to gaining momentum in this effort is to remind the public that America's imprisoned are human beings.  They may deserve punishment for their crimes, but they do not deserve to become victims of yet more crime.

July 21, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Eighth Circuit rejects "safe sex" special condition of supervised release

Thanks to a number of kind readers, I received lots of notice of an Eighth Circuit opinion today that understandably has already received lots of attention.  These excerpts from US v. Harris, No. 14-2269 (8th Cir. July 21, 2015) (available here), highlights why: 

At sentencing, the district court determined that Harris was an armed career criminal under 18 U.S.C. § 924(e), and sentenced him to the statutory minimum of 180 months’ imprisonment. The court, on its own initiative, also imposed a novel special condition of supervised release that “there be no unprotected sex activities without probation office approval during the period of supervised release.”  In a later written order and judgment, the court attempted to modify the special condition to say that Harris “shall use contraceptives before engaging in sexual activity that may otherwise cause pregnancy unless such use would violate his religious scruples or is expressly rejected by his sexual partner.” ...

The district court observed that Harris had fathered ten children out of wedlock with seven different women and declared that Harris’s conduct was “creating a very serious social problem” that was “more serious than a lot of the things that we do deal with on conditions ofsupervised release.”  During the hearing, the court again raised a “social problem of apparently a great deal of unprotected sex.”...

[T]he special condition as pronounced is even broader than the novel restriction on fathering children that the court seemed to contemplate during the hearing.  By restricting “unprotected sex activities,” without limitation, the condition purports to regulate conduct that could not result in pregnancy.  The condition is not even reasonably related to the purposes that motivated the condition.

The special condition also is not reasonably related to the statutory factors set forth in § 3583(d).  As in United States v. Smith, 972 F.2d 960 (8th Cir. 1992), where this court set aside a special condition attempting to regulate a defendant’s fathering of children while on supervised release, the condition here is not related to the nature and circumstances of Harris’s offense.  The court did not find that Harris’s sexual activity was related to his unlawful possession of a firearm.  Nor did the district court explain how restrictions on Harris’s sexual activity would deter Harris from future criminal conduct, protect the public from future crimes by Harris, or assist in Harris’s training, medical care, or correctional treatment.  For similar reasons, the condition impermissibly involves a greater deprivation of liberty than is reasonably necessary to afford adequate deterrence, protect the public from future crimes, and provide the defendant with needed training, care, or treatment. As in Smith, the district court sought to address a perceived social problem that does not have the required nexus to factors that guide sentencing in a federal criminal case.

We conclude that the district court exceeded its authority under § 3583(d) when it imposed the special condition of supervised release at sentencing.

July 21, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (2)

"Sentencing the Wolf of Wall Street: From Leniency to Uncertainty"

The title of this post is the title of this notable new paper now available via SSRN authored by Lucian Dervan. Here is the abstract:

This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a vehicle for analyzing sentencing in major white-collar criminal cases from the 1980s until today.

In Part II, the Article examines the Belfort case and his relatively lenient prison sentence for engaging in a major fraud.  This section goes on to examine additional cases from the 1980s, 1990s, and 2000s to consider the results of reforms aimed at “getting tough” on white-collar offenders.  In concluding this initial examination, the Article discusses three observed trends.  First, today, as might be expected, it appears there are much longer sentences for major white-collar offenders as compared to the 1980s and 1990s.  Second, today, there also appears to be greater uncertainty and inconsistency regarding the sentences received by major white-collar offenders when compared with sentences from the 1980s and 1990s.  Third, there appear to have been much smaller sentencing increases for less significant and more common white-collar offenders over this same period of time.

In Part III, the Article examines some of the possible reasons for these observed trends, including amendments to the Federal Sentencing Guidelines, increased statutory maximums, and judicial discretion.  In concluding, the Article offers some observations regarding what the perceived uncertainty and inconsistency in sentencing major white-collar offenders today might indicate about white-collar sentencing more broadly.  In considering this issue, the Article also briefly examines recent amendments adopted by the U.S. Sentencing Commission and proposed reforms to white-collar sentencing offered by the American Bar Association. 

July 21, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (1)

Friday, July 17, 2015

Gov Christie joins growing chorus of GOP leaders urging reform of "broken" criminal justice system

Download (15)As highlighted by this Politico report, headlined "Chris Christie calls for ‘fresh approach’ to criminal justice," the only GOP presidential candidate with a long history as a federal prosecutor has now joined the ever-growing group of mainstream Republican voices advocating for significant criminal justice reform. Here are the basics of what the New Jersey Governor has to say on this front:

Chris Christie, decrying the large number of Americans in prison, on Thursday said it’s time to fix what he called “a broken criminal justice system.”

“Today, our prisons contain more people than any other nation in the world – 25 percent of the world’s prisoners,” the New Jersey governor and 2016 presidential candidate said in a speech in Camden, New Jersey. “I believe in American exceptionalism, but that’s not an achievement I think any of us want.”

Christie’s call for action came almost at the same time as President Barack Obama’s tour of a federal prison in El Reno, Oklahoma on Thursday as part of his administration’s push for criminal justice reform.

In recent months, a series of deaths of unarmed black men by white law enforcement officers, and resulting riots, has sparked a national discussion about racial tensions, policing, and the U.S. prison system. It’s given a boost to a rare bipartisan push on justice reform, especially mandatory minimum sentences that disproportionately affect minority communities.

On Thursday, Christie talked about the importance of getting violent criminals off the streets, but he said harsh prison sentences don’t solve everything. “Peace on our streets is more than just the absence of violence. Justice isn’t something we can jail our way to. Justice is something we have to build in our communities,” Christie said.

He also framed his argument in terms of conservative values. “I happen to be pro-life, and I believe very strongly in the sanctity of life,” Christie said. “But I believe that if you’re going to be pro-life, then you ought to care about life beyond the womb. An unborn child is life. But life is also that 16 year-old addict lying on the floor of the county lockup.”

Specifically, Christie pointed to his own record in New Jersey as a path forward. He said New Jersey’s drug court program works, calling it a policy that keeps people out of prison and saves money. He said if he becomes president he will replicate it on the national level.

“Drug court is about making every one of our citizens long-term productive members of society again – because we should want that for everyone,” Christie said. He said that first time offenders of non-violent crimes should get treatment and non-custodial sentencing options. He also said that when people are put behind bars there needs to be a plan for rehabilitation for when they get out.

I am particularly intrigued to hear a GOP Presidential candidate with a long history as a federal prosecutor (and whose campaign slogan is "telling it like it is") now calling our criminal justice system broken. Another long-time former federal prosecutor, Bill Otis, has frequently taken to Crime & Consequences to complain when former Attorney General Eric Holder said our current system is broken. And in a comment dialogue following his latest posting in this arena, Bill seemed to suggest that some establishment Republicans may only be pretending that they share such a view in order to get campaign dollars from the Koch brothers. But given Gov. Christie's personal background and campaign themes, I would be really surprised if he would now be saying the system is broken if he did not really believe it.

July 17, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Thursday, July 16, 2015

Lots of justified attention for Judge Alex Kozinski's new article, "Criminal Law 2.0"

Ninth Circuit Judge Alex Kozinski can gather the attention of lawyers and law professors for lots of reasons.  He is doing so these days because of his authorship of this provocative preface to the Georgetown Law Journal's 44th Annual Review of Criminal Procedure.

The piece is a must-read for everyone interested in criminal justice and criminal justice reform, and bloggers at Above the Law and at The Volokh Conspiracy are doing us the favor of highlighting especially interesting passages. Here are links to the bloggy Kozinski coverage so far:

12 reasons to worry about our criminal justice system, from a prominent conservative federal judge

Why Judges and Prosecutors Don’t Care If They’re Right

Kozinski On Juries, Sentencing, and Justice

Judge Kozinski on juries

July 16, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Highlighting significant disparities in DUI homicide sentences in Florida

The Miami Herald has this interesting new article highlighting big differences in sentences handed out in Florida when a drunk driver kills.  The piece is headlined "A Florida DUI death conviction means prison — but for how long varies widely," and here are excerpts:

At 20, Kayla Mendoza tweeted “2 drunk 2 care” before killing two young women in a drunk-driving crash. She tearfully admitted guilt, but, faced with angry relatives of the dead, a Broward judge slammed her with a 24-year prison term.

Days later, a longtime alcoholic named Antonio Lawrence, 57, faced a Miami-Dade judge for plowing into a Liberty City restaurant while driving drunk, killing two church elders. Relatives offered earnest forgiveness. Lawrence got 10 years.

Downstairs on the very same day, in a courtroom with zero television news cameras, Edna Jean-Pierre, 27, took responsibility for killing one person in a DUI crash, then killing another in a hit-and-run crash — while out on bail in the first case. A Miami-Dade judge, Dennis Murphy, sentenced her to four years in prison....

There is a four-year mandatory minimum for a DUI manslaughter conviction in Florida, but as these recent cases show, prison terms vary widely from cases to case and, a Miami Herald data analysis shows, from county to county.

In over 400 fatality cases resolved in Florida since 2012, the statewide average sentence for DUI manslaughter is just under 10 years behind bars, according to a Herald analysis of prison records. Miami-Dade by far had the most cases in that time span, 66, and among the lightest average sentences with convicts serving an average of just over 6 years in prison. In Broward’s 27 cases, defendants in that time span are serving just under 10 years. “Broward has both a reputation and a reality of being harsher than Miami-Dade,” said Miami defense attorney David Weinstein....

Legal experts say the the reasons for the disparity in sentences are complex. Outcomes are swayed by a host of factors: the strength of evidence, the skill of defense attorneys, circumstances of a crash, a defendant’s criminal history, media glare and the desires of a victim’s loved ones. “Victims drive to a good degree what the sentence outcome will be,” said Miami attorney Rick Freedman. “Victims who are not active, not engaged with the state attorney’s office, are going to see a lower number in the sentencing.”...

The four-year minimum mandatory term is a recent addition to the law, added in 2007 over concerns about judges being too soft on drunk drivers who kill. Known as the “Adam Arnold Act,” the law was named after a Key West teen who died in a crash in 1996, a case in which the driver got only three years of probation.

Drivers convicted in fatal hit-and-run crashes — whether alcohol is detected or not — now also face a minimum of four years in prison. Lawmakers in 2014 passed the law, named after Miami cyclist Aaron Cohen, whose death spurred outrage after a Key Biscayne man got only two years behind bars for killing Cohen in the hit-and-run wreck.

Drunk drivers who kill rarely escape at least some prison time, and prosecutors can waive the minimum four years mandatory — like in a highly criticized 2009 case in Miami Beach involving a pro football player. Donte’ Stallworth, who played for five NFL teams, got 30 days in jail and a lengthy probation for killing a pedestrian crossing the MacArthur Causeway. For prosecutors, there was no guarantee of victory at trial — the victim, Mario Reyes, was not in a crosswalk that dark morning. The decision to support the lighter sentence hinged on Reyes’ relatives, who pushed for the deal and also received an undisclosed settlement from Stallworth.

Forgiveness from families can make a difference. In Lawrence’s case, he met with families of the two church elders killed in the crash, became heavily involved helping recovering alcoholics and even surrendered to jail early before pleading guilty. Miami-Dade Circuit Judge Diane Ward gave him 10 years, by no means a slap on the wrist, but much less than the 34 years he faced had he been convicted at trial.

“You’re dealing with people who are not criminals, not people who went to harm others,” said Assistant State Attorney David I. Gilbert, who oversees traffic homicide cases. “They are average citizens who have made a very serious mistake. Different judges deal with different cases in different ways.” The emotional reaction of relatives also can clash, with some urging leniency and others calling for heavy punishment, Gilbert said.

July 16, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (7)

New talk of abolishing the death penalty in Ohio spurred by pro-life conservative

As reported in this local piece, headlined "Renewed Effort Underway To Abolish Ohio's Death Penalty," talk of death penalty abolition is afoot again in the Buckeye State. Here are the details:

One state lawmaker is finding new allies in her fight to get rid of the death penalty. State Rep. Nickie Antonio has been down this road before. The Democratic lawmaker from Lakewood has tried several times to pass a bill that would eliminate the death penalty. “The state of Ohio needs to take the compassionate pragmatic and economically prudent step to abolish capital punishment,” Antonio said.

But while Antonio’s bill has stalled every session, this time she has picked up some support  — from freshman legislator Niraj Antani, a Republican from Miamisburg.  He says capital punishment is too expensive and represents the epitome of big government.  “To me there can be no bigger government with no bigger power than the right to execute its own citizens,” said Antani.

Antani is alarmed that about a dozen people on death row in Ohio have had their sentences commuted or exonerated. He calls on his fellow pro-life conservatives to side with him in getting rid of the death penalty. “I believe that — just the chance that an innocent individual could be put to death is reason enough to repeal it,” Antani added.

But other Republicans disagree. State Rep. John Becker who represents a portion of Clermont County says there are criminals such as mass murderers and serial killers who deserve execution. “So part of it is the inability to rehabilitate and part of it is simply punishment and it would be reserved for the most heinous of crimes,” said Becker.

There’s another issue at play when it comes to capital punishment in Ohio. The state has delayed executions until next year due to questions over the drugs used for lethal injections. Last year, death row inmate Dennis McGuire took an unusually long time to die during his execution and was reportedly seen struggling for air.

The U.S. Supreme Court has ruled that it’s okay for states to use certain combinations of drugs, but Ohio must still find suppliers and manufacturers. And Ohio Department of Rehabilitation and Corrections Director Gary Mohr has said the state is having problems getting those drugs because international companies don’t want to sell them for lethal injections and pharmacists don’t want to create them for executions.

Antonio and Antani use this as a reason to steer clear of executions but State Rep. John Becker makes a different argument and says it doesn’t have to be death by injection. “Frankly I like the idea of giving people choices they can have death by firing squad—death by hanging—death by guillotine," Becker said. "I’m not really sure I care how they die and they can choose their own method for all I care.”

Becker and other death penalty supporters have used another argument is support of capital punishment. They say prosecutors can use the threat of execution as a bargaining chip for plea deals.

July 16, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, July 15, 2015

Politico article suggests real federal sentencing reform poised to become a reality

Almost exactly two years ago, in this July 2013 post reflecting frustration hearing lots of federal sentencing reform talk and relatively little major sentencing reform action, I speculated that the GOP gaining control of the US Senate along with the House might actually make the enactment of some significant federal sentencing reform more likely before the end of the Obama era.  Thus today, thanks to this Politico article reporting on where developments in the GOP-controlled Congress stand, has me feeling a bit clairvoyant:

As President Barack Obama on Tuesday evening called on Congress to take up criminal justice reform, a bipartisan group on Capitol Hill was putting the final touches on a sentencing overhaul deal to be announced as soon as next week. Their message to the president: You’re preaching to the choir. Story Continued Below

“We’ve actually been working on it for quite a while,” said Senate Majority Whip John Cornyn (R-Texas), one of the key negotiators of a package being hashed by members of the Senate Judiciary Committee. “You may see some legislation here in the next week or so. This is active. … [W]e’re close.”...

Right now, the prospects for such legislation seem good, given that lawmakers from both parties have been wrangling with a reform bill for months. Tuesday, for example, the House Oversight Committee became at least the third congressional panel to highlight problems in the justice system, inviting two governors, a handful of senators, House members and experts to discuss a path forward for reducing the number of inmates in federal prisons.

Hours later, the House officially formed the Congressional Criminal Justice and Public Safety Caucus, which will include justice reform supporters. And across the Capitol, Cornyn joined Sens. Mike Lee (R-Utah), Cory Booker (D-N.J.) and Sheldon Whitehouse (D-R.I) for a public dialogue that emphasized the importance of reform.

The biggest announcement is just around the corner: Senate Judiciary Chairman Chuck Grassley (R-Iowa) told POLITICO on Tuesday that his panel is close to announcing a deal on the bipartisan package his panel has been working on for months. Only about four outstanding issues remain, he said, predicting the package will be unveiled before August recess.

July 15, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, July 14, 2015

In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform

Download (5)Most long-time federal sentencing reform advocates likely have long shared my concern that Wisconsin GOP Representative James Sensenbrenner was a significant impediment to achieving significant federal sentencing reform.  Indeed, as noted in this prior post, as recently as two years ago, Rep. Sensenbrenner was defending federal mandatory minimum statutes on very dubious grounds.  

But now that Rep Sensenbrenner has been working for a couple years on bipartian federal criminal justice reform, he is a co-sponsor of the important SAFE Act  (details here) and today delivered this potent testimony to the GOP-controlled House to support his call for significant sentencing reform.  Here is an excerpt from the testimonty I found especially notable and important (with my emphasis added):  

Over the past three decades, America’s federal prison population has more than quadrupled — from 500,000 in 1980 to more than 2.3 million today.  Prison spending has increased by 595 percent, a staggering figure that is both irresponsible and unsustainable.

And yet, this increased spending has not yielded results.  More than 40 percent of released offenders return to prison within three years of release, and in some states, recidivism rates are closer to 60 percent. Several studies have found that, past a certain point, high incarceration rates are counterproductive and actually cause the crime rate to go up.

Especially among low risk offenders, long prison sentences increase the risk of recidivism because they sever the ties between the inmate and his family and community.  These are the ties we need to help reintegrate offenders as productive members of society.

These severed ties are also at the heart of the moral case for reform.  It’s not just the people in prison who are paying the punishment for their crimes.  Mass incarceration tears families apart and deprives children of their fathers and mothers.  It likely means a loss of job, possibly home, and any support he or she had within the community.

And that’s where we are with our sentencing policy — we’re spending more, getting less, and destroying communities in the process.  The system is broke, and it’s our job to fix it.

It is remarkable and a true sign of the modern sentencing times that this reform rhetoric, which sounds more like a passage from an opinion or article by Wisconsin District Judge Lynn Adelman, is coming from GOP Rep. Sensenbrenner. And the adjectives I have stressed in the quoted passage are, in my view, at the heart of the most compelling case for federal reforms and a broad response to modern mass incarceration: the current system is broken and counterproductive, irresponsible and unsustainable, but even beyond any data-driven, cost/benefit analysis, there is a powerful "moral case for reform" that resonates with the commitment to liberty, family, community and limited government that triggered the American Revolution.

Prior related post:

July 14, 2015 in Data on sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Monday, July 13, 2015

Prez Obama with big plans (finally!!) to prioritize criminal justice reform efforts

Images (11)Way back in 2007, then-Prez-candidate Barack Obama on the campaign trail made much of the need for nationwide (and especially federal drug sentencing) criminal justice reform in a speech to Howard Univesity (which I discussed in this 2010 law review article).  In that speech, candidate Obama promised that as President he would be "willing to brave the politics" to help engineer criminal justice reforms.  As long-time readers know from my commentary here and elsewhere, I have long been disappointed that Prez Obama has left us waiting a long time for the reality of his policy work to match the rhetoric of his first political campaign.  

But now, roughly eight years after making campaign proimises at Howard Univesity (and, tellingly, after the conclusion of every significant nation election in which Prez Obama is the most significant player), it appears that Prez Obama is finally poised to invest his political muscle and capital on crimnal justice reform.  This effective Bloomberg Politics article, headlined "Obama to Push U.S. Sentencing Change Backed by Koch Brothers," explains how and provides effective context:

The White House is preparing to seize advantage of bipartisan concern over the burgeoning U.S. prison population and push for legislation that would reduce federal sentences for nonviolent crimes.

President Barack Obama will champion sweeping reform of the criminal justice system during a speech to the NAACP annual convention on Tuesday in Philadelphia, press secretary Josh Earnest said Friday. Obama will present ideas to make the system “safer, fairer and more effective,” Earnest said.

Later in the week, Obama will become the first sitting U.S. president to visit a federal prison when he goes to a medium-security facility in El Reno, Oklahoma.  He’ll also sit for an interview with Vice News for an HBO documentary on the criminal justice system, Earnest said.

Obama came to office promising to reduce the number of Americans imprisoned for nonviolent drug offenses, and in 2010 he signed a law reducing disparities in sentences for possession of crack and powder cocaine. Some Republicans and police organizations criticized the moves as too lenient, but now a bipartisan coalition that includes Obama’s chief political antagonists, billionaires Charles and David Koch, have joined him to support relaxing federal sentencing guidelines.

Key lawmakers from both parties have been invited to the White House next week to discuss strategy. And Obama is expected to soon issue a spate of commutations for nonviolent drug offenders identified by a Justice Department program launched last year. Top officials from the department, including Deputy Attorney General Sally Yates, have recently met with members of Congress to express support for sentencing-reform legislation.

“Engagement with the president has been lacking for the past six years, but this is one topic where it has been refreshingly bipartisan,” Representative Jason Chaffetz, the Utah Republican who heads the House Oversight Committee, said in a telephone interview....

Chaffetz said he was optimistic that a package of bills would advance because of a diverse coalition of supporters lined up behind it. The president dubbed the legislation “a big sack of potatoes” in a meeting with lawmakers in February, Chaffetz said. The composition of the legislation isn’t final.

The Koch brothers, who are major Republican donors, support a bill introduced last month by Representatives Jim Sensenbrenner, a Wisconsin Republican, and Bobby Scott, a Virginia Democrat, that would encourage probation rather than imprisonment for relatively minor, nonviolent offenses and improve parole programs in order to reduce recidivism.

The Sensenbrenner-Scott bill is modeled on state efforts to reduce incarceration. While the federal prison population has grown 15 percent in the last decade, state prisons hold 4 percent fewer people, according to Sensenbrenner’s office. Thirty-two states have saved a cumulative $4.6 billion in the past five years from reduced crime and imprisonment, his office said in a report....

Representative Bob Goodlatte, the Republican chairman of the House Judiciary Committee, held a meeting in late June to listen to proposals from lawmakers in both parties. And Chaffetz, who described the Republican leadership in the House as “very optimistic and encouraging,” scheduled hearings on the issue by his committee for July 14 and 15. “I don’t normally do two days of hearings; we’re giving it that much attention,” Chaffetz said. “So it has more momentum than anybody realizes.”

There is a significant obstacle on the other side of the Capitol: Senator Chuck Grassley, the Iowa Republican who chairs his chamber’s Judiciary Committee.... But supporters of the House legislation have reason for optimism: Last month, Grassley announced he would work on a compromise in the Senate.

While Grassley has indicated a willingness to reduce penalties for some crimes, he wants to increase mandatory minimum sentences for other offenses, a Senate Republican aide said. The person requested anonymity to discuss internal deliberations. That could make sentencing changes an easier sell to tough-on-crime voters, but endanger the support of lawmakers who see mandatory minimums as bad policy. “There does appear hope for a bipartisan compromise,” Earnest said Monday. “We obviously welcome that opportunity.”

Senator Mike Lee, a Utah Republican who has long championed criminal justice reform, is leading negotiations with Grassley. He’s backed by Patrick Leahy of Vermont, the senior Democrat on Grassley’s committee, and Dick Durbin of Illinois, the second-ranking Democrat in the Senate.

The talks remain sensitive. During a Judiciary Committee hearing on Wednesday, Leahy -- admitting he already knew the answer -- asked Yates, who was testifying before the panel, to restate her support for sentencing reform. “I was born at night, but not last night,” Grassley interjected. “And I know that question was in reference to me, and I want everybody to know that we’re working hard on getting a sentencing-reform compromise that we can introduce. And if we don’t get one pretty soon, I’ll probably have my own ideas to put forward.”

July 13, 2015 in Clemency and Pardons, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, July 12, 2015

Seventh Circuit panel affirms as reasonable probation sentence for tax dodging Beanie Babies billionaire

Late Friday, a Seventh Circuit panel rejected the government's claim that a probation sentence given to a high-profile tax cheat was unreasonable.  The lengthy opinion in US v. Warner, No. 14 -1330 (7th Cir. July 10, 2015) (available here), gets started this way:

Defendant H. Ty Warner, the billionaire creator of Beanie Babies, evaded $5.6 million in U.S. taxes by hiding assets in a Swiss bank account.  He pled guilty to one count of tax evasion, made full restitution, and paid a $53.6 million civil penalty.  The Sentencing Guidelines provided a recommended 46- to 57-month term of imprisonment, but the district judge gave Warner a more lenient sentence: two years’ probation with community service, plus a $100,000 fine and costs.  The government claims his sentence is unreasonable because it does not include a term of incarceration.  

In a typical case, we might agree.  But this is not a typical case.  The district judge found Warner’s record of charity and benevolence “overwhelming.”  Indeed, the judge remarked that Warner’s conduct was unprecedented when viewed through the judge’s more-than-three decades on the bench.  In the district court’s opinion, this and other mitigating factors — including the uncharacteristic nature of Warner’s crime, his attempt to disclose his account, his payment of a penalty ten times the size of the tax loss, and the government’s own request for a sentence well below the guidelines range — justified leniency.  District courts enjoy broad discretion to fashion an appropriate, individualized sentence in light of the factors in 18 U.S.C. § 3553(a).  The court here did not abuse its discretion.  Rather, it fully explained and supported its decision and reached an outcome that is reasonable under the unique circumstances of this case.  We therefore affirm Warner’s sentence.

Though the panel stresses unique factors applying only in this case to support its reasonableness ruling, white-collar practitioners (especially those in the Seventh Circuit) will find a lot of broader interest and potential value in this opinion.

Prior related posts:

July 12, 2015 in Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

DA planning to charge Boston Marathon bomber with murder under Massachusetts law

As reported in this new Reuters article, a "Massachusetts district attorney plans to bring state murder charges against Dzhokhar Tsarnaev, who has been sentenced to death in a federal trial for a deadly bomb attack on the 2013 Boston Marathon, her office said on Saturday." Here is why:

Middlesex District Attorney Marian Ryan said she would charge Tsarnaev with murdering MIT police officer Sean Collier and for other crimes in the aftermath of the marathon attacks. Ryan said a guilty verdict in Massachusetts could keep Tsarnaev in prison if he successfully appeals his federal convictions.

"When you come into Middlesex County and execute a police officer in the performance of his duties and assault other officers attempting to effect his capture, it is appropriate you should come back to Middlesex County to stand trial for that offense," Ryan said in a statement.

July 12, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

"The Economic Perspective on Sentencing"

The title of this post is the title of this article authored by Joshua Fischman recently posted on SSRN. Here is the abstact:

Although economists have been actively engaged in research on criminal sentencing, the synergies between the two fields are hardly obvious.  This Essay considers what economists have to contribute to the study of sentencing.  One common explanation — that economists’ use of rational choice modeling has applicability to the study of deterrence — does not adequately account for much of the sentencing research that economists are producing.

This Essay considers two alternative explanations.  First, empirical research in both fields is predominately observational.  Due to practical limits on controlled experimentation, economists have developed a variety of tools for making causal inferences from observational data, many of which have also proved useful in the study of criminal sentencing.  Second, both fields are policy-oriented social sciences.  Methods developed by economists for relating data to theoretical normative constructs, such as surplus and social welfare, have also proven useful in sentencing research, particularly in the study of inter judge disparity.

July 12, 2015 in Data on sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, July 11, 2015

"Can capitalism keep people out of prisons?"

Images (2)The title of this post is the headline of this intriguing Quartz piece discussing social impact bonds which caught my eye.  Here are excerpts:

The tendency for former criminals to end up back in prison generates over $50 billion every year in corrections costs nationally.  After Medicaid, it is the second fastest growing budget item in the US.  Three years ago, Goldman Sachs, New York City, and then-mayor Michael Bloomberg’s foundation aimed to do something about this, and inked a $9.6 million deal to reduce the recidivism rate of youth offenders at Rikers Island Prison using cognitive behavioral therapy.

The transaction, known as a Social Impact Bond (SIB), was structured with no upfront cost to the city and let investors (Goldman) and philanthropists (Bloomberg) assume the upfront risk for the social programs provided to current and former inmates, while the government only had to pay back the investors for the programs that actually worked.

The Rikers Island Prison SIB is one example of fast-emerging interest and activity around these kinds of strategies, which are also known as pay-for-success financings. SIBs create packages for achieving social progress where government only pays when it saves money; the investor can receive higher returns for higher impact, and the provider of the service can grow.

Given the ability for SIBs to save money and deliver better social outcomes, they appeal to both fiscal conservatives and social progressives, and over $40 million has been mobilized to date in the US. In the three years since the Rikers Island SIB was initiated, four other SIBs addressing early childhood education, homelessness, and prison recidivism in the US have been implemented.

But on July 2, the independent evaluator of the Rikers Island SIB announced that the program had failed to reduce recidivism among the participants by more than the 10% minimum that would have required the city to make payment to the investors.  Put another way, any change in the recidivism rate of the program participants compared to a control group was determined to be statistically insignificant.

Although the approach had been used with success on older youths, the specific program at Rikers had not been tested and was being implemented in the challenging setting of a prison. New York City will terminate the program at the end of August, and Goldman will receive $6 million of the $7.2 million it had so far lent to fund the program, due to a $6 million loan guarantee by Bloomberg.

The results of the Rikers Island SIB and the launch of the other transactions raise a host of questions about whether or not these structures can actually transform public finance and bring more capital to social services....

The case for SIBs is strong.  For one thing, prevention is harder to fund than downstream problems.  Government is great at running an ambulance service at the bottom of a cliff for those who fall, but it does not often take the steps needed to prevent people from falling in the first place.  One reason is that prevention has no clear constituency to lobby for budget — consider the prospect of prison operators and unions lobbying legislators versus organizing people who have not been victims of crime advocating for more effective prison release programs.

What’s more, our current system for funding social programs is not tied to outcomes. Because legislators fund (or cut) social programs based on legal mandates, pressure from taxpayers, or simple political expedience, activities are funded — not outcomes.  Service providers are paid for inputs rather than for producing meaningful outcomes — e.g. turning around the lives of juveniles, or preparing children for success in school.  It is easier to monitor how many juveniles are institutionalized and pay a per diem than to consider what is needed to keep a troubled youth with his family and community — even though institutionalization is a bad outcome for the youth and taxpayers....

The bulk of SIBs have been in criminal justice, juvenile detention, or sheltering the homeless. These sectors use high cost strategies of institutionalizing people who would be more effectively served in de-institutionalized settings.  Most people (and even elected officials) can see the benefit of spending less on prisons, shelters, and dysfunctional juvenile detention centers.  But what about areas where more spending is needed, such as early childhood education or job training or mental health?

In most cases, government entities are responsible for paying if the desired outcomes are generated.  Even if investors accept the counter-party risk of the government, the ability of governments to make these commitments is subject to budget constraints and requires a complete re-engineering of procurement processes.

However, there are promising SIB opportunities that do not rely on public payors, such as workforce development and job readiness programs in which private sector employers agree to pay for the program if it delivers qualified employees.  In the health sector, hospital systems and insurance companies that are now responsible for managing the overall health outcomes of communities can also structure innovative contingent payment transactions....

With enabling legislation being passed around the country, and federal grants arriving to cover development costs, more and more SIBs are coming down the pike despite the Rikers Island results. SIBs have created great value simply by bringing together many unlikely parties to tackle some thorny social issues, but the jury is still out on their long-term growth and impact.

July 11, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (4)

Friday, July 10, 2015

Evil doc gets 45 years in the federal pen for fraudulent cancer treatments

I noted in this prior post about his upcoming sentencing, I used the term evil to describe the Michigan oncologist who pleaded guilty to mistreating cancer patients and bilking the government through false Medicare claims.  Today the doctor learned our federal criminal justuce system's response to his evil deed, as this local press account reports:

A metro Detroit cancer doctor who made nearly $20 million off hundreds of patients suffering from unneeded chemotherapy and other stunningly bad treatments was sentenced today to 45 years in federal prison.

"This is a huge, horrific series of criminal acts that were committed by the defendant," U.S. District Judge Paul Borman said, later adding that Dr. Farid Fata "practiced greed and shut down whatever compassion he had." Borman said the crimes called for "a very significant sentence for very, very terrible conduct."

Fata, 50, who openly wept in court today as he apologized for his actions, admitted to fraudulently billing Medicare, insurance companies and at least 550 patients through misdiagnoses, over-treatment and under-treatment. In some cases, he gave nearly four times the recommended dosage amount of aggressive cancer drugs; in at least one, a patient was given toxic chemotherapy for five years when the standard treatment was six months, according to former patients and experts in court this week.

"I misused my talents... because of power and greed. My quest for power is self-destructive," a sobbing Fata told the court before sentencing. He said he is "horribly ashamed of my conduct" and prays for repentance.

Defense attorney Christopher Andreoff asked Borman to sentence Fata to no more than 25 years in prison, saying even that could be a life sentence because of Fata's health. "Our recommendation will give him nothing more than a chance for release before he dies," Andreoff said.

U.S. Assistant Prosecutor Catherine Dick told the court her office has "has never seen anything like this before. ,,. And that is because of the harm."

"Fata was greedy and he wanted that money," Dick said. "What this defendant did is unquantifiable. There is no way to quantify the suffering." Dick, whose office had asked for 175-year sentence, said patients died in horrible pain from Fata's treatments.

Borman had set the sentencing guidelines to 30 years to life on Thursday based on the charges and circumstances. "My role.. is to impose a sentence sufficient but not greater than necessary," Borman said this morning.

The federal court this week heard accounts of about 22 victims, who shared unthinkable experiences of a healthy adult undergoing chemotherapy and losing nearly all his teeth, of a patient diagnosed with lung cancer when he had kidney cancer, and more. Some statements were read by family members of patients who died. Some patients with no documented iron deficiencies were given overwhelming amounts of iron, while others were given lower-than-needed doses of chemotherapy drugs, experts testified.

U.S. Attorney Barbara McQuade previously called his case the "the most egregious" health care fraud case her office has seen.

Fata pleaded guilty in September to 13 counts of health care fraud, two counts of money laundering and one count of conspiring to pay and receive kickbacks. The case involves $34.7 million in billings to patients and insurance companies, and $17.6 million paid for work Fata admitted was unnecessary.

Prior related post:

July 10, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (6)

Publisher of The American Conservative explains "Why We Need Criminal-Justice Reform"

Download (14)Jon Basil Utley, who is the publisher of The American Conservative, has published in his magazine his own notable commentary headlined "Why We Need Criminal-Justice Reform: Our system incentivizes excessive prosecution and punishment — as I found out."  Here are excerpts:

Mass incarceration in America has lifted our prisoner count to 2.3 million, dwarfing that of all other nations; of federal prisoners, only 13 percent are serving time for violent crimes, while 72 percent are imprisoned for nonviolent offenses.  Altogether, Americans are held in thousands of prisons and jails.  Millions more are former prisoners or arrestees. Criminal-justice reform relates to much more than occasional killings by rogue policemen: the whole over-criminalization incentive structure driving long prison sentences and the re-sentencing of parolees in the judicial system needs publicizing and reform.  The multibillion-dollar cost of policing and jailing nonviolent offenders also takes money that our cities (or taxpayers) could well use for civilized betterment.

Our judicial system has some serious flaws, particularly its quest for guilty verdicts and incarceration.  I first learned about the drive for convictions through an experience with a former employee.  He was arrested for getting in a fight with a drunken resident in a business I once owned.  He had called the police himself after hitting the man with his nightstick during a fight.  (We knew the man was drunk from blood tests at the hospital where the man was treated and released the same night.)  The defense attorney, paid by the city, strongly urged my man to plead guilty, telling him that he would easily get off with probation and a few hours of community service.  My employee said that then he would then have a criminal record. But the attorney warned that if he went to court he risked spending years in jail. Later I learned that the attorney was paid little more to fight the charges than to have her client offer a plea bargain. I said to her that I would double whatever legal fees she earned from the court if she would defend him in pleading innocent. She agreed.

After three court dates, the other man never appeared, so my employee’s lawyer asked the prosecutor to drop the case, but the prosecutor refused.  I saw that the prosecutor wanted to collect convictions to help her own career.  Finally, after the other man missed yet another court appearance, the prosecutor agreed to drop the case.  That’s how I saw first-hand how the judicial system obtains so many guilty verdicts, which eventually result in so many imprisonments.  The system is called “meeting and pleading,” as described by former Baltimore police officer Michael Wood. And now, with computerized records, once a man has a conviction he won’t be hired by all sorts of businesses.  In fact, businesses risk being sued for “negligent hiring” if an employee turns out to be a former felon and commits another crime at work.

Reason has published about related problems with sex-offender registration.  Through plea bargaining, thousands of men are on sex-offender lists that don’t distinguish violence by strangers against minors from such “crimes” as urinating in public or exposure.  Reason notes that according to Human Rights Watch, some states’ sex-offender lists include teenagers who had consensual sex with other teens. In Pennsylvania, 14-year-olds were subject to lifetime listing as sex offenders.  The idea behind lifetime penalties for being a sex offender was the impression that most such acts were violently committed by strangers upon small children and that such offenders represented a continuing menace.  But in practice the punishment can mean a lifetime of stigma and economic ruin inflicted upon people who pose no such risk and have not committed any comparable act....

Reform is beginning, but it is very slow.  Both Republicans, who used to support mass incarceration, and Democrats, often beholden to police and prison-guard unions, have not been quick to respond.  Pat Nolan, formerly of Justice Fellowship, told me how the Obama Justice Department dawdled for years to put forward regulations to enforce the Prison Rape Elimination Act, passed in 2003, because of prison-guard union opposition.  Solitary confinement is another issue crying out for reform but also one that provides extra jobs for guards, as I was told by Jim Ridgeway, who runs  A very important new group is Right on Crime, a conservative coalition supported by the Heritage Foundation, tax activist Grover Norquist, Pat Nolan, and politicians such as Newt Gingrich.  It’s now focusing on civil asset forfeiture, another egregious government abuse created in the name of fighting crime.

Slowly but certainly, Americans across the political spectrum are beginning to question and reform the criminal-justice system, even rethinking the panic-stricken measures of the past 30 years that led to so much imprisonment, so many ruined lives, and the runaway growth of police powers.

July 10, 2015 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Thursday, July 09, 2015

ACLU and Koch reps make pitch for SAFE Act and federal sentencing reforms

This notable new Politico commentary advocating for federal criminal justice reform is authored by Anthony Romero, executive director of the American Civil Liberties Union, and Mark Holden, general counsel of Koch Industries. The piece is headlined "A New Beginning for Criminal Justice Reform," and here are excerpts:

The U.S. criminal justice system is in a state of crisis — and Congress is finally moving to address it. On June 25, Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) introduced the bipartisan Safe, Accountable, Fair and Effective Justice Act. Known as the SAFE Justice Act, the legislation is an important step in addressing America’s ballooning, costly and ultimately unjust federal sentencing and corrections system, which needlessly throws away lives and decimates entire communities.

The criminal justice system’s problems are evident all around us.  Over the past three decades, Congress has steadily increased the size and scope of the federal criminal code, ensnaring people who have no business being behind bars, without a corresponding benefit to public safety.  From 1980 to 2013, the federal criminal code increased from 3,000 crimes to approximately 5,000 crimes.  Over the same period, our federal prison population skyrocketed from 24,000 to 215,000 — a 795 percent overall increase — while federal spending on prisons also soared from $970 million to more than $6.7 billion — a 595 percent increase.

While we have a good handle on how much taxpayers’ money we’ve wasted on over-criminalization and mass incarceration, the cost in human lives is incalculable.  Almost every single federal prisoner serving life without parole for nonviolent offenses has one thing in common: a drug offense that resulted in a de facto death sentence. This excessive reliance on punitive sentencing destroys individual lives, families and communities. It is not clear it makes communities any safer.  In addition, it is fiscally irresponsible and morally repugnant.

This points to a simple conclusion: The criminal justice system must be reformed. It must be dramatically altered to maximize public safety, minimize its cost to taxpayers and ensure that justice is served — for the victims of crimes, the individuals who commit them and for society at large....

The SAFE Justice Act would incorporate lessons learned in [reform] states and apply many of them at the federal level. It seeks to address several specific issues with the current criminal justice system. Four areas of reform are particularly promising: First, it begins the process of reversing over-criminalization and the over-federalization of the criminal code.  The act forces the federal government to disclose the creation of new criminal offenses — a common-sense action that would clarify just how large the criminal code is and how fast it has grown.  It also empowers the victims of federal over-criminalization to seek redress via the Office of the Inspector General.  It also contains various reforms to protect against wrongful conviction, reduce pre-trial detentions, and eliminate federal criminal penalties in state jurisdictions, including penalties for actions such as drug possession.

Second, it would reform sentencing.  Today, mandatory minimums force too many people to plea to lengthy prison sentences — punishments that may not fit the crime.  The act seeks to undo this broken system by encouraging judges to offer probation to low-level offenders, while increasing pre-judgment probation.  It also would restrict mandatory minimums to specific categories of people — such as high-level members of drug-trafficking organizations rather than street dealers — as originally intended by Congress.

Third, it would reduce recidivism. Too often, the criminal justice system’s flaws turn federal prisons into revolving doors for repeat offenders.  The legislation proposes to address this problem with a number of reforms, including shorter sentences for people who participate in specific educational and vocational programs.  These reforms can ensure that people who leave federal prison are better equipped to rejoin their communities and contribute to society.

Fourth, it would increase transparency.  The bill would require that federal agencies issue regular reports on recidivism rates, prison populations and other key statistics. It also would require that cost analyses be presented to judges prior to sentencing to help them make prudent decisions.

This is only a partial list of the reforms proposed in the SAFE Justice Act. They are a good start — but they are not enough to reverse the damage, financially and in terms of human lives, caused by decades of misguided policies.  In particular, members of Congress from both parties should continue to devote particular attention to ensuring that criminal laws penalize only the people who intend to commit crimes, an important distinction that many new federal criminal laws miss.  More broadly, they must identify and pass targeted policies that are smarter on crime, rather than just tougher.

Prior related post:

July 9, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Wednesday, July 08, 2015

"Retribution is a valid societal interest" says local DA in advocacy for death penalty

Download (4)The quote in the title of this post is from Louisiana District Attorney Dale Cox, who is profiled in this interesting front-page New York Times article.  The piece is headlined "The Prosecutor Who Says Louisiana Should ‘Kill More People’," and here are excerpts:

Within Louisiana, where capital punishment has declined steeply, Caddo [Parish] has become an outlier, accounting for fewer than 5 percent of the state’s death sentences in the early 1980s but nearly half over the past five years. Even on a national level Caddo stands apart. From 2010 to 2014, more people were sentenced to death per capita here than in any other county in the United States, among counties with four or more death sentences in that time period.

Caddo ... has bucked the national trend in large part because of one man: Dale Cox. Mr. Cox, 67, who is the acting district attorney and who secured more than a third of Louisiana’s death sentences over the last five years, has lately become one of the country’s bluntest spokesmen for the death penalty. He has readily accepted invitations from reporters to explain whether he really meant what he said to The Shreveport Times in March: that capital punishment is primarily and rightly about revenge and that the state needs to “kill more people.” Yes, he really meant it.

And he has been willing to recount his personal transformation from an opponent of capital punishment, a belief grounded in his Catholic faith, to one of the more prolific seekers of the death penalty in the nation. “Retribution is a valid societal interest,” Mr. Cox said on a recent afternoon, in a manner as calm and considered as the hypothetical he would propose was macabre. “What kind of society would say that it’s O.K. to kill babies and eat them, and in fact we can have parties where we kill them and eat them, and you’re not going to forfeit your life for that? If you’ve gotten to that point, you’re no longer a society.”

Mr. Cox later clarified that he had not seen any case involving cannibalism, though he described it as the next logical step given what he at several points called an “increase in savagery.”...

Mr. Cox’s personality has been under scrutiny here since he returned to being a prosecutor after two decades in insurance law. Lawyers who knew him as a congenial and adroit trial lawyer said that in recent years he had become sullen and solitary. They also have described him as becoming increasingly aggressive in the courtroom, in some cases even threatening defense lawyers with criminal contempt for filing opposing motions.

“It’s such a dramatic change,” said Ross Owen, a former Caddo prosecutor and assistant United States attorney who now practices defense law in Shreveport. “The behavior in and of itself might not be a big deal,” he said. But given Mr. Cox’s position, and the fact that the defendants in most of these capital cases are poor and black in a part of the state with a deep history of racism, Mr. Owen added, “He’s got a loaded gun and he’s pointing it at a lot of people.”

Several said this was not so much Mr. Cox as the culture of the office. They point to a historical racial disparity in the application of the death penalty in Caddo. Or they cite an incident in 2012, when two senior assistant district attorneys, both of whom continue to prosecute capital cases elsewhere in the state, were forced to resign from the office after they obtained machine guns from a military surplus program through what an inspector general found to be falsified applications. The men had belonged to a group of prosecutors who participated in firearms exercises as part of a unit known as the Caddo Parish Zombie Response Team, sporting arm patches around the office and specialty license plates on their trucks.

Mr. Cox, who rose from first assistant to acting district attorney after his boss died unexpectedly in April, was never part of that group and disapproved of it. But he did not dispute that the work he does had changed him and left him more withdrawn.

He describes this as a natural result of exposure to so many heinous crimes, saying that “the nature of the work is so serious that there’d be something wrong if it didn’t change you.” He went on to describe violent child abuse, murders and dismemberments in extended detail, pointing to a box on his desk that he said contained autopsy photographs of an infant who was beaten to death. He volunteered that he took medication for depression.

“The courts always say, ‘Evolving standards of decency tell us we can’t do this or that,’ ” he said in an interview at his office, where he had been considering whether to seek death in one case and preparing to seek it in two others. “My empirical experience tells me it’s not evolving decently. We’ve become a jungle.”

The number of murders in Shreveport has decreased by more than 67 percent since the early 1990s. But Mr. Cox insisted that if the numbers were down, the nature of crimes had become more depraved and that it demanded a different approach.

Defense lawyers conceded that the approach was different. Mr. Cox had refused even to entertain pleas of life without parole in homicide cases for which he deemed death the only fitting remedy. In other cases, the office has prosecuted people for ancillary crimes even after they had made plea agreements. After a man was convicted in 2014 of smothering his infant son, a case that hinged almost entirely on differing interpretations of complicated forensic evidence, Mr. Cox wrote that the man “deserves as much physical suffering as it is humanly possible to endure before he dies.”

Alluding to Rousseau and Shakespeare, Mr. Cox remained unapologetic, insisting that he believed what he was doing was right. But he was not entirely untroubled. “I am humble enough and fearful enough,” he said, considering the biblical commandment not to kill and his own place in the afterlife, “that my God may say to me, ‘I meant what I said, and you’re out.’ ”

July 8, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Tuesday, July 07, 2015

You be the judge: what federal sentence for evil cancer doctor?

Download (3)A few weeks ago, I was discussing with my kids whether they thought some humans were innately evil.  In any such discussion, it might make sense to bring up the story of the Michigan oncologist who pleaded guilty to mistreating cancer patients and bilking the government through false Medicare claims.  The doctor's federal sentencing began this week, and this AP story provides an overview of the proceedings and basic information to enable any would-be judges to suggest sentences for the doc in the comments:

Patients of a Detroit-area doctor received "stunning" doses of a powerful, expensive drug that exposed them to life-threatening infections, an expert testified Monday as a judge heard details about a cancer specialist who fleeced insurance companies and harmed hundreds of people.

Dr. Farid Fata is headed to prison for fraud and other crimes. But U.S. District Judge Paul Borman first is hearing from experts and former patients about the extent of his scheme to reap millions of dollars from Medicare and other health programs.

Nearly three dozen ex-patients and family members, many dressed in black, chartered a bus to attend the hearing, which could last days. Some will testify Tuesday."This is a small fraction of the people this guy has hurt," said Terry Spurlock, 52, of Holly, who had three more years of treatments after a tumor on his neck disappeared. "He gave me so much treatment, it stopped my immune system."

Fata, 50, pleaded guilty last fall to fraud, money laundering and conspiracy. The government is seeking a 175-year prison sentence, while the Oakland County man is asking for no more than 25 years.

The government said 553 people have been identified as victims, along with four insurance companies. There were more than 9,000 unnecessary infusions or injections. "There is an aggressive approach to treating cancer. This was beyond. This was over the top," said Dr. Dan Longo, a Harvard medical professor and deputy editor at the New England Journal of Medicine, who testified Monday as a $400-an-hour expert for prosecutors after examining 25 patient files, a tiny portion of Fata's practice.

Longo was asked about patients who were given a drug called Rituximab, which can weaken the immune system if overused. It is typically given eight times for aggressive lymphoma, but one patient got it 94 times. Another got it 76 times.... Later, he told the judge that "all the files I looked at had problems, but I would not say all the treatment was inappropriate."

It was the first time that many former patients had seen Fata in months, if not years. He has been in custody since his 2013 arrest. He wore a white dress shirt and dark suit in court.

"I wanted to knock that smirk off his face," said Geraldine Parkin, 54, of Davison, who[se] husband, Tim, has survived non-Hodgkin lymphoma but has other chronic problems because of excessive treatments. "He has a lot of anger," Parkin said.

July 7, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (9)

Monday, July 06, 2015

"Dividing Crime, Multiplying Punishments"

The title of this post is the title of this interesting article by John Stinneford which was recently updated on SSRN. Here is the abstract:

When the government wants to impose exceptionally harsh punishment on a criminal defendant, one of the ways it accomplishes this goal is to divide the defendant’s single course of conduct into multiple offenses that give rise to multiple punishments. The Supreme Court has rendered the Double Jeopardy Clause, the Cruel and Unusual Punishments Clause, and the rule of lenity incapable of handling this problem by emptying them of substantive content and transforming them into mere instruments for effectuation of legislative will.

This Article demonstrates that all three doctrines originally reflected a substantive legal preference for life and liberty, and a systemic bias against overpunishment.  A punishment was deemed excessive under the Cruel and Unusual Punishments Clause if it was greater than an offender’s retributive desert, as measured against longstanding punishment practice.  Prior to the twentieth century, if prosecutors proposed a novel unit of prosecution for a given crime, judges asked two questions: (1) Does this unit of prosecution give the government the opportunity to bring multiple charges based on a single course of conduct?; and (2) If so, would the bringing of multiple charges create an arbitrary relationship between the offender’s culpability and his cumulative punishment, measured in light of prior punishment practice?  If the answer to both questions was yes, judges would declare the punishment invalid under the Cruel and Unusual Punishments Clause, the Double Jeopardy Clause, or the rule of strict construction of penal statutes (the forerunner to today’s rule of lenity).  By recovering this methodology for addressing prosecutorial efforts to divide crime and multiply punishments, we can ameliorate our current mass incarceration crisis and make the American criminal justice system more just. 

July 6, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Former US District Judge Nancy Gertner talks about drug war casualties she had to create

As reported in this Atlantic posting, headlined "Federal Judge: My Drug War Sentences Were ‘Unfair and Disproportionate’," former US Strict Judge Nancy Gertner recently gave a provocative speech about her federal sentencing history and the impact of the drug war.  The posting provides a link to a video of the speech, and Conor Friedersdorf provides this summary account:

Former Federal Judge Nancy Gertner [recently] stood before a crowd at The Aspen Ideas Festival to denounce most punishments that she imposed. Among 500 sanctions that she handed down, “80 percent I believe were unfair and disproportionate,” she said. “I left the bench in 2011 to join the Harvard faculty to write about those stories –– to write about how it came to pass that I was obliged to sentence people to terms that, frankly, made no sense under any philosophy.”

No theory of retribution or social change could justify them, she said. And that dispiriting conclusion inspired the radical idea that she presented: a call for the U.S. to mimic its decision after World War II to look to the future and rebuild rather than trying to punish or seek retribution. As she sees it, the War on Drugs ought to end in that same spirit. “Although we were not remotely the victors of that war, we need a big idea in order to deal with those who were its victims,” she said, calling for something like a Marshall Plan.

She went on to savage the War on Drugs at greater length. “This is a war that I saw destroy lives,” she said. “It eliminated a generation of African American men, covered our racism in ostensibly neutral guidelines and mandatory minimums… and created an intergenerational problem –– although I wasn't on the bench long enough to see this, we know that the sons and daughters of the people we sentenced are in trouble, and are in trouble with the criminal justice system.”

She added that the War on Drugs eliminated the political participation of its casualties. “We were not leveling cities as we did in WWII with bombs, but with prosecution, prison, and punishment,” she said, explaining that her life’s work is now focused on trying to reconstruct the lives that she undermined –– as a general matter, by advocating for reform, and as a specific project: she is trying to go through the list of all the people she sentenced to see who deserves executive clemency.

July 6, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, July 05, 2015

New York Times reviews juve problems with modern sex-offender laws

The front-page of today's New York Times has this lengthy article, headlined "Teenager’s Jailing Brings a Call to Fix Sex Offender Registries." Here are excerpts:

Until one day in December, Zachery Anderson was a typical 19­-year-­old in a small Midwestern city.... And he dated in the way that so many American teenagers do today: digitally and semi­anonymously, through apps where prospects emerge with the swipe of a finger and meetings are arranged after the exchanges of photos and texts.

In December, Mr. Anderson met a girl through Hot or Not, a dating app, and after some online flirting, he drove to pick her up at her house in Michigan, just miles over the state line.  They had sex in a playground in Niles City, the police report said.

That sexual encounter has landed Mr. Anderson in a Michigan jail, and he now faces a lifetime entanglement in the legal system. The girl, who by her own account told Mr. Anderson that she was 17 — a year over the age of consent in Michigan — was actually 14....  He was [later] arrested and charged and, after pleading guilty to fourth­-degree criminal sexual conduct, was sentenced to 90 days in jail and probation.

As an Indiana resident, Mr. Anderson will most likely be listed on a sex offender registry for life, a sanction that requires him to be in regular contact with the authorities, to allow searches of his home every 90 days and to live far from schools, parks and other public places. His probation will also require him to stay off the Internet, though he needs it to study computer science.

Some advocates and legal authorities are holding up Mr. Anderson’s case as the latest example of the overreach of sex offender registries, which gained favor in the 1990s as a tool for monitoring pedophiles and other people who committed sexual crimes.  In the decades since, the registries have grown in number and scope; the nearly 800,000 people on registries in the United States go beyond adults who have sexually assaulted other adults or minors.  Also listed are people found guilty of lesser offenses that run the gamut from urinating publicly to swapping lewd texts.

As Mr. Anderson’s defenders see it, his story is a parable of the digital age: the collision of the temporary relationships that young people develop on the Internet and the increasing criminalization of sexual activity through the expansion of online sex offender registries. “The whole registry is a horrible mistake,” said William Buhl, a former judge in Michigan who has publicly argued that laws governing registries ought to be relaxed. “I think it’s utterly ridiculous to take teenage sex and make it a felony. This guy is obviously not a pedophile.”...

There are fledgling efforts in some states to change sex offender registries so that they do not include juveniles or those guilty of minor offenses.  In California, the corrections department announced in March that the state would ease residency requirements for many sex offenders, allowing certain low­risk individuals to live in areas closer to schools and parks that were previously off limits.  Many sex offenders have ended up broke and homeless, living in clusters under freeways because they are routinely rejected by employers and landlords, and because they are banned from living in so many neighborhoods that contain public places like parks.

Brenda V. Jones, the executive director of Reform Sex Offender Laws, an advocacy group, said cases like Mr. Anderson’s are common in many states. Frequently, a judge will give the lightest possible sentence, but cannot change the restrictions involving the offender registry. “It’s like a conviction on steroids,” Ms. Jones said. “Being on a registry becomes a liability for employers, no matter how minor the offense was. Other people will say: ‘I saw your employee on the Internet. He’s a sex offender, and I will not come to your establishment.’ ”

Changing the laws has been a slow fight. “People talk about it, but when you actually try to introduce legislation, lawmakers start to get really nervous,” Ms. Jones said. “Because, oh, my God, we’re going to be soft on sex offenders.”

Prior related post:

July 5, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Saturday, July 04, 2015

Celebrating "the blessing of liberty" as the big winner in the SCOTUS Term just completed

Download (2)Lots of folks are already spending lots of time seeking to summarize the Supreme Court Term just ended.  This Washington Post review, headlined "The court’s liberals prevailed in most important cases, but it may not last," provides one example of the left-right SCOTUS political accounting that is common around this time of year. Meanwhile, this NPR segment, headlined "'Fractures' In The Supreme Court Revealed In This Year's Decisions," discusses different divides among the Justices and gives extra attention to the Chief Justice as he wraps up a decade as our nation's top jurist.

For an especially dynamic take on the Term that was, I recommend this Slate SCOTUS Breakfast Table entry by Marty Lederman.  The piece explores the "biggest surprises" of the Term and begins with the observation that the "vast majority of the outcomes were predictable in light of the questions presented [as] at least 95 percent of the justices’ votes conformed to expectations." The piece goes on to explore the ocassional unexpected SCOTUS development and ends with a great account of "the single most surprising and heartening development of the term":

[I]n Davis v. Ayala (a case involving whether it was a harmless error for a trial judge to convene an ex parte “Batson” hearing to assess whether the prosecution’s peremptory challenges to a jury pool were race-based), Kennedy wrote separately to raise an issue that had nothing to do with the question before the court....

This [concurrence] is Kennedy’s pronouncement that he is now prepared to recognize at least some constitutional limits on the horrific practice of extended solitary confinement — after many decades during which the court showed little or no inclination to do anything of the sort.  (Way back in 1890, the court took note of the fact that under the experience of solitary confinement in the 18th century, “a considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still committed suicide, while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”  Yet here we are in 2015, and not much has changed — in large measure because the court has been reluctant to second-guess prison administrators with respect to the practice.)

Kennedy’s Davis concurrence (as well as congressional testimony to similar effect that he gave three months earlier) is an invitation to defense lawyers to bring such constitutional challenges to the court, where they are likely to receive a much more receptive audience than they have in the past.  There are several such cases currently being litigated in the lower courts, including in California and in Arizona.  Perhaps one of them will turn out to be as important, as momentous, next term as King and Obergefell were this term....

This is, I think, by far the most encouraging surprise of the term — the prospect that we might finally bring to an end, or at least materially limit, this barbaric and shameful practice, and thereby come just a bit closer — as the court did this term — to securing the blessings of liberty to ourselves and our posterity.

I share Marty Lederman's perspective that Justice Kennedy's opinion in Davis could and should be the start of something big for further constitutional protection for those subject to the most extreme deprivations of liberty.  More broadly, as I reflect on those cases I am most likely to remember from the Term just concluded — from Obergefell to Johnson to Elonis to Yates (and perhaps even to Glossip) — I cannot help but see liberty as the biggest and most consistent winner.  So, as I finish up this post on the morning of the Fourth of July, I suggest that all devotees of our "nation conceived in liberty" (including Lady Liberty herself) should have an extra wide smile as we watch the rockets red glare tonight.

July 4, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, July 03, 2015

New CRS report: "Risk and Needs Assessment in the Criminal Justice System"

A helpful colleague alerted me to this intriguing new Congressional Research Service report concerning risk assessments and other crime-control focused criminal justice reforms. Here is the report's summary:

The number of people incarcerated in the United States has increased significantly over the past three decades from approximately 419,000 inmates in 1983 to approximately 1.5 million inmates in 2013.  Concerns about both the economic and social consequences of the country’s growing reliance on incarceration have led to calls for reforms to the nation’s criminal justice system.

There have been legislative proposals to implement a risk and needs assessment system in federal prisons.  The system would be used to place inmates in rehabilitative programs. Under the proposed system some inmates would be eligible to earn additional time credits for participating in rehabilitative programs that reduce their risk of recidivism.  Such credits would allow inmates to be placed on prerelease custody earlier.  The proposed system would exclude inmates convicted of certain offenses from being eligible to earn additional time credits.

Risk and needs assessment instruments typically consist of a series of items used to collect data on behaviors and attitudes that research indicates are related to the risk of recidivism.  Generally, inmates are classified as being high, moderate, or low risk. Assessment instruments are comprised of static and dynamic risk factors.  Static risk factors do not change, while dynamic risk factors can either change on their own or be changed through an intervention.  In general, research suggests that the most commonly used assessment instruments can, with a moderate level of accuracy, predict who is at risk for violent recidivism.  It also suggests that no single instrument is superior to any other when it comes to predictive validity.

The Risk-Needs-Responsivity (RNR) model has become the dominant paradigm in risk and needs assessment.  The risk principle states that high-risk offenders need to be placed in programs that provide more intensive treatment and services while low-risk offenders should receive minimal or even no intervention.  The need principle states that effective treatment should focus on addressing needs that contribute to criminal behavior.  The responsivity principle states that rehabilitative programming should be delivered in a style and mode that is consistent with the ability and learning style of the offender.

However, the wide-scale adoption of risk and needs assessment in the criminal justice system is not without controversy.  Several critiques have been raised against the use of risk and needs assessment, including that it could have discriminatory effects because some risk factors are correlated with race; that it uses group base rates for recidivism to make determinations about an individual’s propensity for re-offending; and that risk and needs assessment are two distinct procedures and should be conducted separately.

There are several issues policymakers might contemplate should Congress choose to consider legislation to implement a risk and needs assessment system in federal prisons, including the following:

• Should risk and needs assessment be used in federal prisons?

• Should certain inmates be excluded from earning additional time credits?

• Should risk assessment be incorporated into sentencing?

• Should there be a decreased focus on punishing offenders?

July 3, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Thursday, July 02, 2015

Making the forceful (and effective) case that modern bail systems operate unconstitutionally

EJUL-slide-3This recent Slate piece, headlined ""Is Bail Unconstitutional?: Our broken system keeps the poor in jail and lets the rich walk free," highlights some impressive efforts by impressive lawyers to litigate strategically modern problems in modern bail structures.  Here are excerpts:

Anthony Cooper was going to jail because he couldn’t afford to buy his way out. After being picked up for public intoxication at a bus station in Dothan, Alabama, at about 1 a.m. on June 13, Cooper was told that unless he paid $300 in bail money, he would have to spend six days behind bars while awaiting a court hearing.  If Cooper, who is illiterate and suffers from mental illness, had had the money on hand, he could have gone free on the spot. But the 56-year-old’s only source of income comes from his Social Security benefits, and he didn’t have $300.  And so Cooper, like many down-on-their-luck Dothan residents before him, was locked up.

It was shortly thereafter that Alec Karakatsanis, a civil rights lawyer based in Washington, D.C., who graduated from Harvard Law School in 2008, entered the picture.  Working with a like-minded Alabama attorney named Mitch McGuire, Karakatsanis filed a class-action lawsuit in federal court on behalf of Cooper and others in his position, contending that Dothan’s bail policy, which called on people arrested by local police for misdemeanors and traffic offenses to come up with fixed sums ranging from $300 to $500, was unconstitutional.  Specifically, Karakatsanis and McGuire argued, by allowing some people to purchase their freedom while detaining the indigent just because they were too poor to make bail, the city was in violation of the Equal Protection Clause of the 14th Amendment.

Last week, in response to Cooper’s lawsuit, the city of Dothan announced that it had changed its bail policy: Going forward, people awaiting hearings in Dothan Municipal Court will no longer be required to pay bail upfront.  The city will move to an “unsecured bond” system in which defendants only owe money if they don’t appear in court when they’re supposed to.  While the lawsuit against Dothan has not been dropped — Karakatsanis intends to get a court-ordered settlement that will enshrine the new policy and make it semipermanent — it has already resulted in getting Cooper, along with an unknown number of other pre-trial detainees in Dothan, out of jail.

For Karakatsanis, co-founder of the nonprofit civil rights organization Equal Justice Under Law, Dothan is just one pot on a big stove: Since January, he has filed class-action lawsuits against four other small cities with bail schemes that don’t take into account people’s ability to pay, and he plans to file more.  The suits are the opening moves of an ambitious campaign to abolish, on a national level, the practice of demanding secured money bail (i.e., cash) from pre-trial detainees as a condition of release.  Taken together, they represent the first major effort since the dawn of the mass incarceration era in the 1980s to use the legal system to force reform in this area.  “Nobody should be held in a cage because they’re poor,” Karakatsanis told me. “Detention should be based on objective evidentiary factors, like whether the person is a danger to the community or a flight risk — not how much money’s in their pocket.”...

Karakatsanis is playing a long game, picking off low-hanging fruit in the form of small municipalities that require cash bail for minor violations in an attempt to lay the groundwork for constitutional challenges he hopes to mount later, both in larger cities and at the state level.  The reasons for this are strategic.  For one thing, Karakatsanis’ small victories are useful to other reformers, like Nancy Fishman from the Vera Institute of Justice, who told me that in working with jurisdictions around the country on improving their incarceration policies, she and her colleagues at Vera can point to something like the Velda City settlement as evidence that cash bail regimes really do need to be overhauled. Secondly, bringing cases against cities that require cash bail for all misdemeanors, including very minor ones, highlights the unfairness of the practice....

That doesn’t mean Karakatsanis thinks people who have been charged with serious crimes like rape or murder should be able to walk free just because they haven’t been convicted yet — only that people’s fates should be determined as objectively as possible, based not on how rich or poor they are but on whether or not there’s evidence that says they ought to be detained.  For now Karakatsanis is focused on taking incremental steps.  “I’m looking to find other cities that want to work with us to change their practices without being sued,” he said. “But we’ll continue to bring lawsuits against cities and counties that insist on keeping these blatantly illegal practices alive.”

July 2, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4)

Varied perspectives on the varied challenges facing varied victims

I am sometimes inclined to say to my sentencing students that crime victims, especially victims of violent crimes, are often the most important and least understood players in the criminal justice system.  Helpfully, these two new lengthy and very different pieces about different violent crime victims can help enhance our understanding:

From the New York Times here, "Full Toll From Aurora Theater Shooting Goes Untold at Trial"

From Slate here, "He Killed Her Daughter. She Forgave Him. Linda White believes in a form of justice that privileges atonement over punishment. She practices what she preaches."

July 2, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, June 29, 2015

"Prison Abolition and Grounded Justice"

The title of this post is the title of this newly published article by Allegra McLeod. Here is the abstract:

This Article introduces to legal scholarship the first sustained discussion of prison abolition and what I will call a “prison abolitionist ethic.” Prisons and punitive policing produce tremendous brutality, violence, racial stratification, ideological rigidity, despair, and waste.  Meanwhile, incarceration and prison-backed policing neither redress nor repair the very sorts of harms they are supposed to address — interpersonal violence, addiction, mental illness, and sexual abuse, among others.  Yet despite persistent and increasing recognition of the deep problems that attend U.S. incarceration and prison-backed policing, criminal law scholarship has largely failed to consider how the goals of criminal law — principally deterrence, incapacitation, rehabilitation, and retributive justice — might be pursued by means entirely apart from criminal law enforcement.  Abandoning prison-backed punishment and punitive policing remains generally unfathomable.

This Article argues that the general reluctance to engage seriously an abolitionist framework represents a failure of moral, legal, and political imagination.  If abolition is understood to entail simply the immediate tearing down of all prison walls, then it is easy to dismiss abolition as unthinkable.  But if abolition consists instead of an aspirational ethic and a framework of gradual decarceration, which entails a positive substitution of other regulatory forms for criminal regulation, then the inattention to abolition in criminal law scholarship and reformist discourse comes into focus as a more troubling absence. Although violent crime prevention and proportional punishment of wrongdoing purportedly justify imprisonment, this Article illuminates how the ends of criminal law might be accomplished in large measure through institutions aside from criminal law administration.

More specifically, this Article explores a form of grounded preventive justice neglected in existing scholarly, legal, and policy accounts. Grounded preventive justice offers a positive substitutive account of abolition that aims to displace criminal law enforcement through meaningful justice reinvestment to strengthen the social arm of the state and improve human welfare.  This positive substitutive abolitionist framework would operate by expanding social projects to prevent the need for carceral responses, decriminalizing less serious infractions, improving the design of spaces and products to reduce opportunities for offending, redeveloping and “greening” urban spaces, proliferating restorative forms of redress, and creating both safe harbors for individuals at risk of or fleeing violence and alternative livelihoods for persons subject to criminal law enforcement.  By exploring prison abolition and grounded preventive justice in tandem, this Article offers a positive ethical, legal, and institutional framework for conceptualizing abolition, crime prevention, and grounded justice together.

June 29, 2015 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Friday, June 26, 2015

"A Second Chance: Rebiography as Just Compensation"

I often tell my sentencing students that every good legal or policy debate has some important sentencing story lurking within it.  The title of this post is the title of this intriguing article authored by Jamila Jefferson-Jones just now appearing on SSRN, and it argues Fifth Amendment's Takings Clause has an important sentencing story lurking within.  Here is the abstract:

Once upon a time, reinvention was an integral part of the myth of the American Dream. As the story went, one could leave the old country or old neighborhood, without looking back -- fashioning one's own second chance by stepping into a newer, better identity, crafting a redesigned life story out of whole cloth if necessary.  As one legal historian noted, "American culture and law put enormous emphasis on second chances."  For most of the 20th Century, this notion of the second chance was also alive and well in the American criminal justice system, as rehabilitation was considered its primary goal.  My earlier article, "A Good Name: Applying Regulatory Takings Analysis to Reputational Damage Caused by Criminal History," couched the need for rebiography upon reentry in terms of the ongoing reputational damage suffered by the previously convicted.  Then, regulatory takings analysis was applied to that reputational damage.  In doing so, it analyzed the critical property-like characteristics of reputation, concluding that reputation is a form of "status property" and that such continued stigma attachment and reputational damage constitutes a "taking" without just compensation.  Finally, it was argued that rebiography can serve as "just compensation" for this type of taking.

Rebiography as "just compensation" for the reputational taking suffered by the previously convicted leaves open two questions: First, does the takings analysis have the same outcome regardless of the offender?  In other words, does an offender have to try to use her reputation in a positive manner and be prevented from doing so in order to have a takings claim, or is it enough to say that requiring disclosure of criminal history is a taking across the board that always requires just compensation?  Secondly, what is the relationship between "rebiography" and "privacy"?  In "A Good Name," an established continued stigma attachment was shown as a governmental taking. Now, it is offered in a way to show that "just compensation" is owed to the previously convicted and that the way to provide it is through establishing a "rebiography right," stemming from the taking of a constitutionally cognizable property right.

Part I of this new article provides the introduction, giving general definitions of rebiography and “just compensation.”  In Part II, there are reviews of the application of the Takings Clause to the reputational damage suffered by the previously convicted and apply this analysis to actual cases.  In Part III, it is further explained as to why rebiography is necessary given statistics on the previously convicted's employment prospects and recidivism.  The article goes on to examine legislative and judicial options for rebiography.

June 26, 2015 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (4)

Wednesday, June 24, 2015

Notable new federal drug sentencing guideline reform data and discussion from US Sentencing Commission

I just received via e-mail a notable alert from the US Sentencing Commission concerningnotable new information and materials now available on the USSC's website.  Here is the text of the alert I received (along with relevant links):

Today, the U.S. Sentencing Commission released its first report on retroactive application of the 2014 drug guidelines amendment, which reduced the drug quantity table in the federal sentencing guidelines by two levels.  This report includes motions decided through the end of May 2015 for a reduced sentence under the new amendment.  Read the report.

For background information on why the Commission amended the drug guidelines, read the first of our new Policy Profile series, “Sensible Sentencing Reform: The 2014 Reduction of Drug Sentences.”

The Commission is also seeking public comment on proposed priorities for the upcoming amendment cycle.  Public comment is due on or before July 27, 2015.  More information

There is data and discussion in each of thse three new USSC documents that merit careful study and perhaps future substantive comment. For now, though, I am eager just to praise the Commission for the creation of the reader-friendly and astute "new Policy Profile series." I have long thought it a good idea for the USSC to say a lot more about matters of policy, but to do so in smaller forms than the traditional lengthy 300+ page reports to Congress. Thus, I consider this new Policy Profile series to be both a great idea and one that could pay lots of dividends for all policy-makers, researchers and advocates who are concerned about federal sentencing law and policy,

June 24, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, June 23, 2015

Is the initiative process a wise way to move forward with criminal justice reform?

Those who know me well know that I have become, generally speaking, big fan of direct democracy and not really that much of a fan of representative democracy.   This affinity is driven in part  by the efficacy of direct democracy in driving forward the national marijuana reform movement, but it is driven more fundamentally by the reality that direct democracy gets the electorate talking about (and the media reporting on) substantive policies and public priorities.  In contrast, as we see now most every election cycle, representative democracy too often gets the electorate talking about (and the media reporting on) personal scandals and public personas.

Because I am a big fan of direct democracy, I was especially excited to see this recent Washington Post article headlined "ACLU growing political program, plans ballot initiatives."  Here are excerpts:

The American Civil Liberties Union, looking to increase its effectiveness, is launching a major political advocacy program. The group has raised or received commitments for $80 million to back up a 501(c)(4) and announced on Friday that veteran Democratic operative Karin Johanson has been hired as its first ever national political director.

Johanson, who was executive director of the Democratic Congressional Campaign Committee when the party took control of the House in 2006, will run the ACLU’s Washington, D.C. office and spearhead several ballot initiative campaigns in 2016, focused on criminal justice reform and banning discrimination against the LGBT community....

“It has become increasingly clear that we can’t rely upon litigation or old-style lobbying,” Romero said in an interview. “The gridlock in Washington is suffocating … Sitting down with legislators, walking through the pros and cons of a particular bill and trying to cajole them to do the right thing increasingly draws limited dividends. The place to light a fire under them is in their home district.”

The ACLU will soon pick three states with high incarceration rates and then sponsor ballot initiatives next year aiming to force sentencing reform.  Five states are being considered, but they’ll pick just three so that the group can go all-in and score some tangible victories.

Criminal justice is a hot issue right now, with backing from liberals, libertarians like the billionaire Koch brothers and fiscal conservatives. “This is not a reform effort focused on the Northeast liberal corridor,” said Romero.  “We’re going to the tough states, the Deep South.”

For various reasons, I am pleased to learn that the ACLU is looking to bring the arguments for criminal justice reform straight to the people through the initiative process. But I also know there are many people interested in criminal justice reform who have different views on the best means to reform ends, and I would be eager to hear in the comments any reasons why I should not be too excited about seeking criminal justice reform through direct democracy.

June 23, 2015 in Marijuana Legalization in the States, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

"Policing, Mass Imprisonment, and the Failure of American Lawyers"

In prior comments, someone spotlighted this notable recent commentary by Alec Karakatsanis appearing in the Harvard Law Review Forum under the title that serves as the title of this posts. Here are excerpts from the introduction and the final paragraph of this provocative piece:

The contemporary system of American policing and incarceration puts human beings in cages at rates unprecedented in American history and unparalleled in the modern world. Its current rate of incarceration is about five to ten times that of other comparably wealthy countries and five times its own steady historical average prior to 1980.  It is a considerable bureaucratic achievement to accomplish the transfer of thirteen million bodies each year from their homes and families and schools and communities into government boxes of concrete and metal.  It is also a failure of the legal profession....

The failure of lawyers is a tragedy in two parts.  First, there has been an intellectual failure of the profession to scrutinize the evidentiary and logical foundations of modern policing and mass incarceration.  Second, the profession has failed in everyday practice to ensure that the contemporary criminal legal system functions consistently with our rights and values....

Legal academics, judges, and lawyers of conscience must take up this two-pronged challenge: we must bring intellectual rigor to legal discourse and doctrine on these issues, and we must use the energy that animates our bodies to ensure that the legal system looks in practice as it appears in our scrolls and on our marble monuments.

June 23, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Monday, June 22, 2015

How much will get spent on (merely symbolic?) death penalty referendum efforts in Nebraska?

The question in the title of this post is prompted by this notable local article from Nebraska headlined "Group fighting death penalty retention gets $400,000 grant."  Here are the interesting "follow-the-money" details:

Death penalty opponents got a cash injection Friday, and death penalty advocates accused them of using it to suppress voter rights.

ACLU of Nebraska will give the $400,000 grant from Massachusetts-based Proteus Action League to the Nebraskans for Public Safety coalition formed to fight the effort to retain capital punishment in the state.  Proteus Action has given $21 million nationwide in the past five years toward repeal of the death penalty.  "This support demonstrates the world is watching what is happening here this summer," Danielle Conrad, executive director of the ACLU of Nebraska.  "This support will be like rocket fuel to the campaign."

ACLU of Nebraska is part of the coalition, as are Nebraskans for Alternatives to the Death Penalty, Nebraska Innocence Project, faith leaders, conservative leaders and the Nebraska Criminal Defense Attorneys Association.

Friday afternoon, Nebraskans for the Death Penalty called ACLU participation in the coalition shameful.  “Nebraskans have a constitutional right to vote on whether they wish to restore the death penalty," founding member Bob Evnen said in a statement. "The ACLU has announced that it will spend hundreds of thousands of dollars to try to sabotage the right to vote on this very important issue.  Few rights in a democracy are more fundamental than the right to vote.  The ACLU’s effort to thwart that right is shameful.”

Replied Conrad: "I absolutely disagree with that.  I don't understand that attack." Conrad said her group's work is the opposite of voter suppression.  Declining to sign the pro-death-penalty petition is in fact exercising one's right to vote, she said.

Last month, Nebraska became the first red state since 1973 to abolish capital punishment.  The Legislature voted for repeal May 20 and a week later overrode a veto by Gov. Pete Ricketts. The bill (LB268) goes into effect Aug. 31.

Almost immediately, Omaha Sen. Beau McCoy said he'd look at putting the issue to a vote, and Nebraskans for the Death Penalty opened offices in Omaha and Lincoln the first week of June.... Death penalty supporters have 72 more days to gather 115,000 verified signatures -- 10 percent of registered voters -- to suspend the law and put it to a vote in November 2016.  They need about half that number to put the issue to a vote after the law takes effect.

"I think both are hard," Conrad said of the two thresholds.  "I can tell you from working both sides of campaigns in direct democracy, it's not easy to be out in the heat and the rain in a multitude of counties. ... I don't think that they or we can take anything for granted."

Conrad said Nebraskans for Public Safety will use the $400,000 to make sure the petition drive is conducted properly and to work statewide to educate people on the issue.  And if the move to stop the law from taking effect is successful, she said, her group will have a good start at working to defeat a vote next year.

Peterson said he expects Nebraskans for the Death Penalty will raise and spend about $900,000 and will file required paperwork June 30 saying how much it has raised so far.

This story suggests that at least a few million dollars are likely to be spent on just the initiative run-up effort in Nebraska, and I have to assume many millions more will get spent on the campaign if (when?) the issue gets on the ballot. And yet, even if Nebraska voters were to bring the death penalty back after the legislature's recent repeal, it seems highly unlikely the vote will significantly increase the chances any formerly condemned murderer gets executed or that any future murderers get sent to death row.

Even if the death penalty is brought back by voter initiative, defense attorneys are sure to continue pursuing extensive (and expensive) litigation in state and federal courts asserting that the eleven folks already on Nebraska's death row cannot now be executed. And even if the death penalty is brought back by voter initiative, prosecutors are sure to continue to struggle to convince Nebraska juries to condemn murderers to death in future cases.

Notably, given that Nebraska has not executed anyone in nearly two decades, and has averaged less than a single death sentence per year over its modern history, symbolism plainly matters a lot more than substantive outcomes as money is raised to fight over the death penalty's future in the Cornhusker State. Whatever position one takes on the death penalty, it is hard not to wonder if the monies to be spent on the developing symbolic capital policy fight could go to much uses for violent crime victims and the state's judicial system.

June 22, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, June 21, 2015

"Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective"

The title of this post is the title of this significant new article by Rishi Batra recently posted to SSRN. Here is the abstract:

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely.

By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates both advantages and disadvantages of judicial participation in the plea process. Most importantly, it makes five recommendations for how states can involve judges in the plea process to retain the advantages while minimizing the disadvantages of judicial participation: having a separate judge or magistrate judge manage the plea process, recording plea bargains for future review, ensuring judges take a facilitative role during the plea process, involving defendants in the process where possible, and holding plea bargains in an informal setting.

June 21, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0)

Friday, June 19, 2015

Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?

The question in the title of this post is a question I have raised with some folks over at Crime and Consequences, and this new New York Times article reports that it is one that the Governor of South Carolina might now be thinking a lot about.  The NYTimes article is headlined "Governor Calls for Charleston Shooting Suspect to Face Death Penalty," and here are excerpts:

South Carolina’s governor on Friday called for the 21­ year­old man who is suspected of killing nine people in one of the South’s most historic black churches to face the death penalty.

“This is a state that is hurt by the fact that nine people innocently were killed,” Gov. Nikki R. Haley said, adding that the state “absolutely will want him to have the death penalty.”  The governor, who spoke on NBC’s “Today” show, described Wednesday’s shooting rampage as “an absolute hate crime.”

“This is the worst hate that I’ve seen — and that the country has seen — in a long time,” she said. “We will fight this, and we will fight this as hard as we can.”

Her comments came hours before the suspect, Dylann Storm Roof, a white man who returned to Charleston under heavy guard on Thursday night after his arrest in North Carolina, was expected to go before a judge on Friday afternoon for a bond hearing, where he will hear the charges against him. Mr. Roof, who friends said had a recent history of expressing racist opinions, is widely expected to be prosecuted for murder, an offense that can carry the death penalty in this state. Greg Mullen, the chief of police in Charleston, has called the shooting a hate crime, and Attorney General Loretta E. Lynch said the Justice Department was investigating that possibility....

On Thursday, President Obama spoke of the shooting and lamented what he called the easy access to guns, an issue he has tried and failed to address with legislation. “At some point, we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries,” Mr. Obama said. He added: “It is in our power to do something about it. I say that recognizing the politics in this town foreclose a lot of the avenues right now. But it would be wrong for us not to acknowledge it. And at some point it’s going to be important for the American people to come to grips with it.”

In the interview on Friday, Ms. Haley, a strong proponent of gun rights, deflected a question about whether the shooting would change her position on the issue. “Anytime there is traumatic situation, people want something to blame. They always want something to go after,” she said. “There is one person to blame here. We are going to focus on that one person,” she added, referring to Mr. Roof....

In downtown Charleston, there was already talk of the long­term anxiety the shooting might stir. “The question that I have is, is it going to happen again?” said Jeremy Dye, a 35­-year-­old taxi driver and security guard from North Charleston who said he knew three people who were killed. “It’s always going to be fear. People in Charleston are going to have that fear now forever. It’s not going to wash away. They’re going to be worried about, ‘O.K., when’s the next church going to get hit?’ ”

Because I share Gov Haley's view that this is the worst hate crime that the country has seen in a long time, and because I am especially eager to figure out how best to recognize and respect the real fear that this incident produces "forever" for so many folks, I think I would answer the question in the title of this post with the answer BOTH.

For many reasons, I think it would send an especially potent and powerful message of condemnation for both South Carolina and the Federal Government to bring capital charges against Dylann Storm Roof. Though I am not sure at this early stage of the investigation if I would want both SC and the feds moving forward with a capital prosecution all the way through a trial at the same time, I am sure that this is a kind of crime comparable in various ways to the Oklahoma bombing that prompted various dual state and federal prosecutions of the perpetrators.  For me, the symbolic value and statement of having capital charges brought against Roof in both state and federal courts is worth seriously considering.

June 19, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (22)

"Vermont's Prison Chief Says It's Time to Decriminalize Drug Possession"

BildeThe title of this post is the headline of this intriguing new article from an independent paper in Vermont.  Here is how the lengthy article gets started:

Vermont Department of Corrections Commissioner Andy Pallito recalled spotting a young woman on a prison tour; he knew she was addicted to heroin, but she wasn't getting treated for it. On another occasion, a former inmate who served five years on a marijuana conviction described his crime to Pallito as "possession of a vegetable."

Pallito has struggled over the years to rein in a DOC budget that has exploded along with the inmate population. All of that has led him to a conclusion shared by few in his field: Pallito believes that possession of all drugs should be decriminalized and that the War on Drugs should be declared a failure, he told Seven Days. The man who supervises Vermont's 1,900 prison inmates believes that many of them shouldn't be behind bars, and that incarceration sets them up for failure.

"Possession of drugs for personal utilization — if somebody is not hurting anyone [else], that should not be a criminal justice matter," Pallito, 49, said in an interview at his Williston office. "I don't think anybody can say that putting somebody with an addiction problem through the corrections system is a good idea."

The DOC commissioner has been following news reports from Portugal, which in 2000 decriminalized all drugs and has since recorded declines in drug abuse and overdose deaths. He's decided it's a brave example that Vermont should emulate. "We should go to the Portugal model, which is to deal with the addiction and not spend the money on the criminal justice system," Pallito said. "We spend so much money on corrections that could be done differently. The only way to do it is spend less on corrections and more on treatment."

Pallito may be the first head of a state prison system to publicly advocate against the prosecution of users of heroin, cocaine and other street drugs. He knows of no one among his peers who has stepped forward. Organizations that question the War on Drugs, such as Law Enforcement Against Prohibition — a group of former and current police officers — have not claimed any state corrections administrators as supporters. "When you're a corrections commissioner, most people think you're tough on crime, law and order, and I am — for certain crimes," Pallito said. He believes that possession of marijuana should be legal, in any quantity. Possession of all other drugs, provided they are in small quantities for personal use, should not result in a criminal charge but rather a small civil fine, along with a mandate to undergo treatment. In essence, he'd treat all drugs in a way that is consistent with Vermont's 2013 marijuana decriminalization law, which stipulates that people found with one ounce or less face a $200 fine but no criminal charge.

Pallito stressed two points: Drug dealers should still face criminal charges. And decriminalization should not happen overnight — there aren't enough drug-treatment providers to handle the effects of such a switch. He would go even further in decriminalizing drug-related activity. The many people who are charged with drug-addiction-related property crimes, such as theft, would not face prison time.

Currently, more than 500 of Vermont's 1,900 inmates are in custody for either property crimes or drug possession. Two of those are being incarcerated for marijuana possession. Freeing such inmates would dramatically reduce the prison population, saving the state several million dollars annually and enabling it to end the controversial program that ships 300 overflow inmates to privately run out-of-state prisons.

Further, Pallito said, decriminalization would allow people to take advantage of effective treatment programs and to avoid criminal convictions that prevent them from rebuilding their lives. "I think you will find a lot of people in the criminal justice system who have been there for a number of years understand its faults most acutely," said Chittenden County State's Attorney T.J. Donovan, who seemed a little taken aback by news of Pallito's stand. "The best policy is front-end work, and Andy sees that, and it's consistent with his progressive ideology."

June 19, 2015 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, June 15, 2015

"Beyond the Numbers: Toward a Moral Vision for Criminal Justice Reform"

The title of this post is the title of this short paper by Seth Mayer and Italia Patti recently posted to SSRN. Here is the abstract:

The diverse coalition of activists trying to cut the prison population has thus far failed to articulate a coherent moral foundation for criminal justice reform.  Since the various constituents of this coalition support reform for different reasons, it may seem savvy to avoid conversation about moral questions.

We argue, however, that failing to work toward developing a moral basis for reform puts the coalition at risk of repeating the failures of the sentencing reform movement of the 1970s and 1980s.  This initially promising movement culminated in the passage of the widely disliked and deeply flawed United States Sentencing Guidelines.  We lay out and analyze the downsides of avoiding moral discourse in criminal justice reform movements and argue for more collaboration and dialogue between moral thinkers and activists.

June 15, 2015 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Ron Paul at Townhall: "Death Penalty is Big Government at Its Worst"

Former Texas congressman Ron Paul has this notable new anti-death penalty commentary now up at Townhall.  Here are excerpts:

Nebraska's legislature recently made headlines when it ended the state's death penalty. Many found it odd that a conservatives-dominated legislature would support ending capital punishment, since conservative politicians have traditionally supported the death penalty. However, an increasing number of conservatives are realizing that the death penalty is inconsistent with both fiscal and social conservatism.  These conservatives are joining with libertarians and liberals in a growing anti-death penalty coalition.

It is hard to find a more wasteful and inefficient government program than the death penalty.  New Hampshire recently spent over $4 million dollars prosecuting just two death penalty cases, while Jasper County in Texas raised property taxes by seven percent in order to pay for one death penalty case!  A Duke University study found that replacing North Carolina's death penalty would save taxpayers approximately $22 million dollars in just two years....

Despite all the time and money spent to ensure that no one is wrongly executed, the system is hardly foolproof.  Since 1973, one out of every ten individuals sentenced to death has been released from death row because of evidence discovered after conviction. The increased use of DNA evidence has made it easier to clear the innocent and identify the guilty.  However, DNA evidence is not a 100 percent guarantee of an accurate verdict. DNA evidence is often mishandled or even falsified.  Furthermore, DNA evidence is available in only five to 10 percent of criminal cases.

It is not surprising that the government wastes so much time and money on such a flawed system. After all, corruption, waste, and incompetence are common features of government programs ranging from Obamacare to the TSA to public schools to the post office.  Given the long history of government failures, why should anyone, especially conservatives who claim to be the biggest skeptics of government, think it is a good idea to entrust government with the power over life and death?...

As strong as the practical arguments against the death penalty are, the moral case is much stronger.  Since it is impossible to develop an error-free death penalty system, those who support the death penalty are embracing the idea that the government should be able to execute innocent people for the "greater good."  The idea that the government should be able to force individuals to sacrifice their right to life for imaginary gains in personal safety is even more dangerous to liberty than the idea that the government should be able to force individuals to sacrifice their property rights for imaginary gains in economic security.

Opposition to allowing the government to take life is also part of a consistent pro-life position.  Thus, those of any ideology who oppose abortion or preemptive war should also oppose the death penalty. Until the death penalty is abolished, we will have neither a free nor a moral society.

I cannot help but wonder if Ron Paul's son, Senator and GOP Prez-candidate Rand Paul, shares these (conservative?) perspectives on the death penalty and might even espouse some anti-death-penalty sentiments on the campaign trail in the future.

June 15, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Sunday, June 14, 2015

Fascinating account of how "how neoliberalism lies at the root of the carceral state"

LogoThe always interesting poly-sci prof Marie Gottschalk has this especially interesting new piece in the Boston Review headlined "The Folly of Neoliberal Prison Reform."  The lengthy piece merits a full read; these excerpts from the start and end of the piece are intended to highlight the article's themes and strong flourishes:

Amid deficit-allergic neoliberal politics, everyone can agree on the appeal of budgetary savings.  So now it is not just liberals going after mass incarceration. A group of brand-name conservatives, including Newt Gingrich, Grover Norquist, and, most recently, former governor Rick Perry of Texas, has endorsed various budget-cutting initiatives that would reduce prison populations.  Utah Senator Mike Lee, an influential Tea Party Republican, has delivered speeches on “the challenge of over-criminalization; of over-incarceration; and over-sentencing.”

This bipartisanship has fostered a wave of optimism; at last it seems the country is ready to enact major reforms to reduce the incarceration rate.  But it is unlikely that elite-level alliances stitched together by mounting fiscal pressures will spur communities, states, and the federal government to make deep and lasting cuts in their prison and jail populations and to dismantle other pieces of the carceral state, such as felon disenfranchisement and the denial of civil liberties, employment, and public benefits to many people with criminal convictions.

For one thing, the carceral state has proved tenacious in the past.... If there is to be serious reform, we will have to look beyond the short-term economic needs of the federal and state governments. We can’t rely on cost-benefit analysis to accomplish what only a deep concern for justice and human rights can.  Indeed, cost-benefit analysis is one of the principal tools of the neoliberal politics on which the carceral state is founded....

[T]he carceral state was not built by punitive laws alone, and it can be dismantled, at least in part, by a change in sensibilities.  The carceral state was born when police officers, parole and probation agents, judges, corrections officials, attorneys general, local district attorneys, and federal prosecutors began to exercise their discretion in a more punitive direction as they read the new cues coming from law-and-order politicians.

That discretion could be turned toward lenience.  President Obama and state governors have enormous, largely unexercised, freedom to grant executive clemency.  Federal judges have considerable wiggle room to depart from the federal sentencing guidelines, as the Supreme Court confirmed in United States v. Booker (2005) and reconfirmed in Gall v. United States (2007).  The Department of Justice could put an end to overcrowding in federal penitentiaries by calling a halt to the federal war on drugs. The Federal Bureau of Prisons (BOP) could “eliminate thousands of years of unnecessary incarceration through full implementation of existing ameliorative statutes,” according to a report by the American Bar Association.  For example, the BOP and many state departments of corrections could release more infirm and elderly inmates early via a process known as compassionate release.

Prosecutors may be the linchpins of penal reform. The late legal scholar William Stuntz described them as the “real lawmakers” of the criminal justice system because they enjoy vast leeway in charging and sentencing decisions.  Attorneys general and district attorneys also set the tone and culture of their offices and determine how prosecutors working under them exercise their discretion....

Alleviating the root causes of poverty and inequality will take a long time.  In the meantime, no compelling public safety concern justifies keeping so many people from poor communities locked up and so many others at the mercy of the prison beyond the prison. The demands of justice and human rights compel thoroughgoing change, whatever the cost-benefit analysis returns.

I am a bit less pessimistic than this piece about what "neoliberal" cost-benefit analysis might achieve in the context of modern sentencing and prison reform, in part because I think mass incarceration was fueled (and is sustained) more by "classical" notions of justice and victim-rights than this article acknowledges. I especially think that "neoliberal" cost-benefit analysis has an especially important role to play in ratcheting back the modern drug war. That all said, there is much I agree with in this article, and it should be read by everyone eager to think deeply about modern criminal justice reform goals and means.

June 14, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9)