Sunday, May 15, 2016
Making the case that "criminal justice reform is a conservative effort" and a "moral imperative"
The debate over modern criminal justice reform efforts creates an interesting divide among folks on the right: some like Bill Otis make the claim that the push for reform is an "ominous ... part of our country's recent pattern of decline and retreat," while others involved with the Right on Crime movement assert conservatives should be leading the charge for robust criminal justice reform. Regular readers will not be surprised to hear I tend to be moved more by the Right on Crime voices, and the RoC website recently highlighted this notable column at Ricochet by Nathanael Ferguson making the claim that criminal justice reform is a conservative cause. Here is how this piece starts and ends (with links in the original):
My friend Sean Kennedy asserts in a column at Real Clear Policy that the “Bipartisan Push for Criminal Justice Reform Is Misguided.” I respectfully disagree. On the contrary, criminal justice reform is a conservative effort that is necessary to restrain government that has grown too large, powerful, and costly.
Criminal justice reform, or CJR for short, is a broad-based movement made up of numerous policy reforms taking place mostly at the state level. Texas has pioneered many of the reforms and has inspired a growing number of states to follow suit which has led to, among other beneficial results, reduced recidivism rates and lower prison costs.
CJR is a policy response to the problem of overcriminalization which can be defined as the criminalization of routine behavior that has no business being criminalized and the overly burdensome punishments that are handed down for minor infractions. Or to put it another way, we have too many statutory and administrative laws that are too vague and carry overly disproportionate penalties in contravention to the old saying that “the punishment must fit the crime.”...
Conservatives are generally suspicious of government that is too big, too costly, and too powerful. That is, until it comes to the justice system where we seem to think it’s okay for the government to be big and powerful and spend our tax dollars like a drunken sailor. But why should we view the justice system any differently than the rest of the government? Why should we not demand transparency and accountability? Why should we not demand that crime and punishment be proportional? Why should we not demand that justice-related spending be efficient and cost-effective?
The answer is that we should demand these things. And to a growing extent we are, which is why it is mostly conservative states with Republican governors leading the way on criminal justice reform and in so doing making the system more just and less costly to taxpayers. To be sure, some liberal lawmakers who support the movement may tend to overreach and make the leap from being right on crime to being soft on crime. But that’s no reason to condemn the entire movement.
Criminal justice reform is not some misguided liberal effort to open the prison doors and set free everyone convicted of drug-related crimes as some opponents charge; rather it is a moral imperative for a society that values limited government, individual liberty, personal responsibility, and a justice system that is fair to victims, violators, and the taxpayers who fund it.
Is it fair for me to worry that drug war distractions contribute to "a revolving door for violent offenders" in DC?
The question in the title of this post is prompted by this lengthy new Washington Post article headlined "How an accused rapist kept getting second chances from the D.C. justice system," which is the "first installment in a series that will examine issues related to repeat violent offenders in the District of Columbia." I am pleased to see the Post giving attention to how repeat violent offenders manage to avoid serious punishments, but I hope that the series will get around to exploring my enduring concern that repeat violent offenders can too often and too readily exploit cracks within any justice system overworked and overloaded from treating drug problems as primarily criminal justice concerns. These enduring concerns aside, here are excerpts from the Post's story that serve as an introduction to the troubling tale that follows:
The 40-year-old woman, described in court papers as 5 feet tall and 100 pounds, suffered fractures in her eye socket and cheekbone. The alleged perpetrator, 21-year-old Antwon Durrell Pitt, had an extensive criminal history, including eight arrests in four years and a robbery conviction. Three times, he was sentenced under laws designed to promote leniency and second chances for inexperienced adult offenders. In two of those cases, he was sentenced under the District’s Youth Rehabilitation Act, a 1980s-era law aimed at “deserving” offenders under the age of 22.
Pitt’s case shows that such laws, combined with lax enforcement by key federal agencies, can give many chances to violent offenders despite repeated criminal behavior and the failure to abide by terms of release, according to a Washington Post review of court records, transcripts and probation reports.
The D.C. criminal justice system relies on a mix of federal agencies and D.C. judges to swiftly intervene and communicate vital information to protect the public from violent offenders. In the crucial weeks before the rape, a D.C. Superior Court magistrate judge and two federal agencies — the Court Services and Offender Supervision Agency (CSOSA) and the U.S. Parole Commission — failed to work together to take Pitt off the streets.
Pitt’s behavior raised many red flags, indicating escalating risk. Just out of prison last summer after serving a robbery sentence, Pitt did not report for some of his court-ordered drug testing and anger management sessions. He did not keep in contact with his supervision officer. And in a final act of defiance, Pitt cut off the GPS monitoring bracelet affixed to his ankle and let the battery run dead. He was completely off the grid.
CSOSA, the federal agency charged with watching D.C. offenders released from prison, did not request a warrant for Pitt’s arrest for 15 days after losing contact with him. The Parole Commission waited a week after getting that request before forwarding it to law enforcement. And the magistrate judge denied a prosecutor’s request to keep Pitt behind bars, despite a troubling report from the Pretrial Services Agency. “No conditions or combination of conditions can reasonably assure the defendant’s appearance or safety to the community,” said the report that was given to magistrate William Nooter.
The District’s Youth Rehabilitation Act was passed in 1985 to give youthful adult offenders a chance to have their records wiped clean from public view if they successfully complete their sentences, even those who commit violent crimes, with the exception of murder and a second crime of violence while armed....
At a time when the Obama administration and Congress are working to ease “mandatory minimum” sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African Americans, D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets. The District, for example, has seen a near doubling in the percentage of homicide suspects with prior gun-related arrests. “Sometimes, we just scratch our heads,” D.C. police Chief Cathy L. Lanier said. “We feel like there’s a revolving door for violent offenders. It’s very frustrating for us because we see the victim, and we see the impact on the victim.”
Saturday, May 14, 2016
"The Death Penalty & the Dignity Clauses"
The title of this post is the title of this notable new paper authored by Kevin Barry now available via SSRN. Here is the abstract:
“The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment.” Justice Thurgood Marshall posed this question in 1972, in his concurring opinion in the landmark case of Furman v. Georgia, which halted executions nationwide. Four years later, in Gregg v. Georgia, a majority of the Supreme Court answered this question in the negative.
Now, forty years after Gregg, the question is being asked once more. But this time seems different. That is because, for the first time in our Nation’s history, the answer is likely to be yes. The Supreme Court, with Justice Kennedy at its helm, is poised to declare the death penalty unconstitutional. No matter what the Court’s answer, one thing is certain: dignity will figure prominently in its decision.
Dignity’s doctrinal significance has been much discussed in recent years, thanks in large part to the Supreme Court’s watershed decisions in U.S. v. Windsor and Obergefell v. Hodges, which struck down laws prohibiting same-sex marriage as a deprivation of same-sex couples’ dignity under the Fourteenth Amendment. Few, however, have examined dignity as a unifying principle under the Eighth and Fourteenth Amendments, which have long shared a commitment to dignity, and under the Court’s LGBT rights and death penalty jurisprudence, in particular, which give substance to this commitment. That is the aim of this Article.
This Article suggests that dignity embodies three primary concerns — liberty, equality, and life. The triumph of LGBT rights under the Fourteenth Amendment and the persistence of the death penalty under the Eighth Amendment expose a tension in dignity doctrine: the most basic aspect of dignity (life) receives the least protection under the law. Because dignity doctrine demands liberty and equality for LGBT people, it must also demand an end to the death penalty. If dignity means anything, it must mean this.
In anticipation of the Court’s invalidation of the death penalty on dignity grounds, this Article offers a framework to guide the Court, drawn from federal and state supreme court death penalty decisions new and old, statistics detailing the death penalty’s record decline in recent years, and the Court’s recent LGBT rights jurisprudence. It also responds to several likely counterarguments and considers abolition’s important implications for dignity doctrine under the Eighth Amendment and beyond.
"Inside a prison where inmates can actually vote for president"
The title of this post is the headline of this lengthy Fusion article discussing voting realities in Vermont. Here is how the interesting piece starts and ends:
On February 16, 2000, Scott Favreau, then 17, committed a crime that shattered a family and shocked the state of Vermont. In the early hours of the morning, he walked up to his foster mother, who was up grading high school English papers at the kitchen table, and shot her in the head with a .22 caliber rifle, immediately killing her. After leading police on a high-speed car chase, Favreau and his accomplice, the foster mother’s stepdaughter who was later found to be implicated in the crime, were arrested.
For the small community around West Burke, Favreau’s murder of his guardian, Victoria Campbell-Beer, represented a rare act of violence that robbed it of one of its beloved schoolteachers. For Favreau, the crime marked the deplorable end to a tumultuous childhood largely defined by neglect and abuse, both physical and sexual, allegedly at the hands of his biological father.
Upon settling into his new day-to-day life as a prisoner, he came to believe that, for all practical purposes, his life had ended. During these first years of incarceration, Favreau says, his identity became defined by his status as a non-entity in society. “It teaches you to be just an inmate,” he said of prison. “There’s not a lot of responsibility in here. You can sleep all day. You can do nothing at all. And that’s what a lot of us do.” Favreau says after his first years in prison he even began to see the guards — “the closest thing we have to society” — as strange, unrelatable visitors from the outside world.
During the first years of his term, Favreau began to mend ties to his biological mother, talking to her over the phone with some frequency. More often than not, their conversations would wind back to her financial struggles and desperate search for a well-paying job. Incarcerated with no way to help, Favreau says that these conversations often underscored his sense of powerlessness behind prison walls.
Ahead the 2006 election, partially propelled by the economic woes of his family, Favreau did something he describes as pivotal: He registered to vote, a rare privilege available to United States prison inmates in only Vermont and Maine.
Favreau says that participating in the electoral process brought a new feeling of agency in and connection to society at large. This, he said, helped to change his life. “It was one thing I could do that I can have control of, the one thing that could let me feel that I can make a difference in something.” After registering, he gradually began to follow developments in the news, informally debating other inmates about current events. He even began talking politics with prison guards, who eventually became a lot less otherworldly. “It helped me accept them because it gave me something in common with them,” Favreau said. “You can bond through a shared experience.”
Maine and Vermont — the nation’s first- and second-whitest states, respectively — provide America’s only opportunity to see what happens when prison inmates vote. In Favreau’s telling, however, the largest significance of voting as an inmate might go beyond his relationships with prison guards, his conversations with other inmates, or even any effect his vote might have on an election outcome. Favreau believes it has improved his chances of reintegrating with society upon his release, which he expects will come in roughly two years. “I grew up in prison and voting helped me learn responsibility,” Favreau said. “It taught me how to be a part of the community, and how to prepare me for it.”...
Having made an ill-fated attempt to rebuild his life in society in Vermont’s closely supervised probation program, Favreau has personal experience with the difficulties of reintegration. After his release in 2013, Favreau found a job in a warehouse in Brattleboro, and soon met and moved in with a girlfriend and her young son. Yet, Favreau was struggling with a large debt he had incurred largely during his first few months of freedom and, to ease his anxiety, he had begun to smoke pot, a fact he knew would become known by his probation officer because of required urine tests.
“One night I was at work and I felt like my life was a failure because I was thousands of dollars in debt,” Favreau said. “I figured I would be better off back in jail.” That night, Favreau violated his probation by crossing into Massachusetts, where he quickly called his girlfriend and told he what he’d done. By the end of the following day, Favreau was back in custody.
Favreau, who began making art in prison, said he has been using his failed year of freedom to work on strategies for his second try at reintegration, which he anticipates will come in approximately two years. In the meantime, he says he will continue to vote whenever an opportunity arises. “It’s my lifelong goal to make amends for what I did and to give back to community and to the people I hurt,” Favreau said. Being able to vote has “taught me about my responsibility,” he added. “I can get out and make a difference one day.”
Friday, May 13, 2016
"Was 1960'S Liberalism the Cause of Today's Overincarceration Crisis?"
The title of this post is the headline of this notable book review by Lauren-Brooke Eisen of the Brennan Center for Justice of this notable new book by Elizabeth Hinton "From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America." Here is how the review starts and concludes:
The statistics are stunning. This very second, more than 2.2 million people sit behind bars in America. To put this into perspective, the United States is home to the largest prison system on the planet. But corrections today encompasses more than just metal bars. An estimated 6,851,000 people are under some sort of correctional supervision, such as probation or electronic monitoring. If you do the math, it’s about one in 36 adults. The racial disparities are striking: according to the Sentencing Project, one in every 10 African-American men in his thirties is in prison or jail on any given day.
Elizabeth Hinton, professor of history and African American studies at Harvard University, examines how mass incarceration happened in America in her new book, appropriately titled From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America. Hinton’s approach is novel. Most criminal justice experts cite President Ronald Reagan’s War on Crime as the driver for today’s current levels of incarceration. Hinton argues that President Lyndon Johnson’s Great Society policies — which aimed at improving conditions for the most impoverished Americans — laid the foundation for mass incarceration and its attendant racial injustices. Reagan’s policies, she says, were merely “the fulfillment of federal crime control priorities that stemmed initially from one of the most idealistic enterprises in American history during the era of civil rights.”
This may be a surprising claim, but it is not a unique one: there are a growing number of academics today who are blaming liberals for creating mass incarceration and for the sizable racial disparities that exist in the justice system. Naomi Murakawa, political scientist and associate professor of African American studies at Princeton, made this argument in her recent book The First Civil Right: How Liberals Built Prison America. Murakawa points to federal legislation written by liberals to reduce discretion in sentencing and parole. The liberals’ goal was to avoid racially disparate punishment — judges, they argued, generally used their discretion in ways that hurt racial minorities. Time has shown, however, that reducing judicial discretion only resulted in more racial disparities, as African-Americans ended up spending more time in prison as a result.
University of Pennsylvania professor of political science Marie Gottschalk, made a similar case in her 2015 book Caught: The Prison State and the Lockdown of American Politics. Gottshalk contends that African-American advocacy groups have not always led the way in criminal justice reform and have in fact, at various points in history, supported measures that created more punitive criminal justice policies that have harmed African-Americans. She notes that the majority of the Congressional Black Caucus supported the Anti-Drug Abuse Act of 1986, a law that notoriously, and controversially, punished crack cocaine use (a crime African-Americans are more likely to be convicted of) 100 times more harshly than powder cocaine use (which skews more white).
Building on this theme, Hinton’s well-researched book is filled with historical anecdotes painting a colorful picture of the nation’s persistent struggle with crime since President Johnson coined the phrase “War on Crime” more than fifty years ago. A year before President Johnson declared this war, Congress passed his Economic Opportunity Act of 1964, which Hinton calls “the most ambitious social welfare program in the history of the United States." The Economic Opportunity Act, which invested almost $1 billion in fighting poverty, would prove to be one of the most important parts of President Johnson’s War on Poverty, and his larger Great Society initiative, in which billions of dollars were spent on dozens of antipoverty programs. Hinton, however, criticizes President Johnson for not spending more money on job creation measures and revamping public schools in poor, urban areas. What came next, in her opinion, set the stage for decades of punitive measures that ultimately resulted in today’s phenomenon of mass incarceration....
From the War on Poverty to the War on Crime is smart, engaging, and well-argued. Its one flaw, however, is that it does not adequately recognize that many of the policies it criticizes, with 50 years of hindsight, were well-intentioned at the time – and, their implications for criminal justice aside, did a great deal of good. It is not until the very end of the book — pages 335 and 340 to be exact — that Hinton throws some morsels of recognition their way, conceding that these policies may have been “a product of their time” and that there are “questions of intent”. But the concession is a grudging one — Hinton writes that these questions of intent “are only relevant to a certain extent” as the real issue is to “uncover the series of decisions that made contemporary mass incarceration possible.”
The last 50 years have brought valuable research about crime, evidence-based programs, and how to improve the lives many Americans through education, community support, and mental health and drug treatment services. To give short shrift to the well-meaning efforts of so many of the nation’s academics, researchers, and policymakers is an unfortunate blind spot in an otherwise well-researched and provocative analysis of the causes of our mass incarceration crisis.
Wednesday, May 11, 2016
"Retribution and the Limits of Criminal Justice"
The title of this post is the title of this book chapter recently posted to SSRN and authored by Michael Louis Corrado. Here is the abstract:
Those who claim that retributivism is a morally defensible position point to two things in support of that claim: retribution is said to justify the deliberate imposition of suffering as a way of controlling crime, and it is said to limit that imposition by the boundaries it sets. First of all, assuming that what we seek from punishment is to deter wrongdoers, we still need some way to justify the heaping of pain upon past wrongdoers as a means to that end. Desert, says the retributivist, solves this problem: what justifies harming the wrongdoer is that he brought it on himself. But the second thing is that although the fact that they have committed crimes in the past means that we are entitled to punish them, retribution sets down limits. The punishment the wrongdoer deserves is limited by his culpability and by the seriousness of his crime. If the punishment exceeds what is deserved, it is not justified. That at least is the story that the retributivist tells.
The second part of this argument is important in its own right. There are those who would argue that whether or not retribution and desert have any foundation in fact it is important that we act as though they do, especially in connection with the criminal law, because the consequences of abandoning them are too dire to be born. We would lose the limits that come with retribution. Regardless, then, of whether in fact human beings actually have free will, regardless of whether they are responsible for what they do, regardless of whether anyone actually deserves to be punished, regardless of whether retribution is ever justified, it is still morally desirable to insist on desert and retribution because without them we are bereft of the principles that limit the state’s use of the coercive machinery of criminal justice. The idea is that if we do not pretend human beings have free will and responsibility, the law will not know where to draw the line in its use of the instruments of the criminal justice system against wrongdoers.
My aim in this Chapter is to devalue retributivism as a boundary-setter and to show that even if retribution were an acceptable aim, even if some individuals did deserve punishment and even if punishment had to be limited to what those individuals deserve, that would not limit state’s use of coercive force and in particular its use of the preventive methods of quarantine in any way.
Monday, May 09, 2016
Former federal drug warriors assail sentencing reform efforts because "drug dealing is a violent crime"
William J. Bennett, the director of drug control policy for President George H. W. Bush, and John P. Walters, the director of drug control policy for President George W. Bush, have this notable new Washington Examiner op-ed headlined "Drug dealing is a violent crime." Here are excerpts:
The Sentencing Reform and Corrections Act now before Congress is based on a lie — that drug dealing is not a violent crime. Americans have been told this lie for years even as we witness the violence and death caused by drug dealers in our communities. Now, this lie is propelling legislation through Congress that will destroy more lives.
As former directors of the Office of National Drug Control Policy, we carry a particular responsibility to speak up when so many who should know better claim that drug trafficking has been treated too harshly under federal law.
Claims by President Obama and others that federal prisons are filled with "nonviolent drug offenders" and that drug dealing is a "victimless crime" are grotesquely dishonest. How can the drug trade be victimless when most Americans know a victim? How can it be non-violent when we witness the carnage every night on the local news?...
In the federal prison system, 99.5 percent of those incarcerated for drug convictions are guilty of serious trafficking offenses. And according to a Bureau of Justice Statistics study of state drug inmates, 77 percent reoffend within five years of release, with 25 percent committing violent offenses. Most of these convicted drug dealers are career criminals with long rap sheets. By softening punishments for these traffickers, as this legislation does, Congress would give convicted dealers shorter sentences and early release causing destruction to communities across America. Moreover, this push to release experienced traffickers is occurring at the same time our nation is enduring a 440-percent increase over the past seven years in heroin overdose deaths.
Drug dealing is inseparable from violent victimization. Illegal drugs kill tens of thousands each year in overdose deaths. More die in violent acts and accidents under the influence of drugs. Still more die slowly of blood-borne diseases contracted through injection drug use and through high-risk behavior while under the influence of drugs, including prostitution to support addiction. Street-level dealers look into the eyes of these victims daily as they take addicts' money and foster their self-destruction. Traffickers at levels above the street know this reality and take their wealth from it, spreading death across neighborhoods and across the globe....
Considering all that America knows about drug addiction, only the dishonest or willfully blind can claim that drug trafficking is a non-violent crime. Drug dealing depends on addiction; addicts consume the vast majority of the drug supply; the dealer cultivates users to create more addicts in a murderous cycle.
Drug dealers know drugs will eventually impair judgment and bend free will, altering personality and poisoning bonds to loved ones. We know drug use and addiction degrade millions of lives — impairing education, employment and parenthood. Drugs are at the root of much of the child abuse, endangerment and domestic violence perpetrated against the innocent.
But the destruction is much wider. Addiction and drug dealing ravage whole communities, urban and rural. We need look no further than the daily reports of the heroin epidemic today, or the still-vivid memories of the meth epidemic and the crack epidemic. Drug dealing makes whole neighborhoods war zones, places of economic blight and large-scale victimization. There is no greater single source of actual harm to Americans today — none. The cost of incarcerating drug dealers is small compared to the true cost of their crimes to society.
Knowing this, it is an utterly irresponsible effort to release experienced drug dealers from federal prison before they have completed their just sentences, arguing they are merely misguided business people or desperate individuals caught up in an unfair system. The truth about drug dealing is this: It requires cruelty and willful indifference to the visible suffering inflicted on others — over and over again — harming individuals, families and whole communities.
Sunday, May 08, 2016
"Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops"
The title of this post is the title of this notable new paper authored by Stephanos Bibas now available via SSRN. here is the abstract:
American criminal procedure developed on the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes. But now that plea bargaining has all but supplanted juries, we need to think through what safeguards our plea-bargaining system should be built around.
This Symposium Article sketches out principles for redesigning our plea-bargaining system from the ground up around safeguards. Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation of charges, pleas, and sentences. Part II then diagnoses unfair repercussions caused by defendants’ lack of information and understanding, laymen’s lack of voice, and the public’s lack of information and participation. To prevent and fix these sources of unfairness, it proposes ways to better inform pleas and to make plea procedures more procedurally just.
Friday, May 06, 2016
Commissioner of U.S. Commission on Civil Rights expresses concerns to Senator Grassley about efforts to reduce federal prison sentences
A helpful reader just forwarded to me a fascinating, lengthy letter authored by Peter Kirsanow, a long-serving Commissioner on the US Commission on Civil Rights, expressing concerns about federal sentencing reform efforts. I recommend everyone following the current debats over federal statutry sentencing reforms to read the full letter, which can be downloaded below. These extended excerpts from the start and body of the letter (with footnotes removed but emphasis preserved from the original) should help explain why I find it fascinating:
I write as one member of the eight-member U.S. Commission on Civil Rights, and not on behalf of the Commission as a whole. I also write as a person who lives in a high-crime, predominantly African-American neighborhood. The purpose of this letter is to express my concerns about the Sentencing Reform Act of 2015, particularly the various provisions that reduce the length of prison sentences.
Three years ago, the U.S. Commission on Civil Rights held a briefing on the Equal Employment Opportunity Commission’s [EEOC] revised guidance on the use of criminal background checks in hiring. The guidance was motivated by many of the same concerns that seem to underlie the Sentencing Reform Act — primarily that minority men, particularly African-American men, are disproportionately likely to be incarcerated and have criminal records, a concern about burgeoning prison populations, and a sense that as a society we should focus on rehabilitation, not retribution.
During our briefing, witnesses testified about the difficulty ex-convicts face in obtaining employment, a very real and troubling concern. But one would have concluded from the briefing that rehabilitation was the norm for ex-offenders, stymied only by a callous society that refused to give them a second chance. One also would have thought that ex-offenders were essentially indistinguishable from non-offenders. Further research revealed this to be far from the truth....
The Sentencing Reform Act is predicated on the belief that rehabilitation is not only possible, but likely. Yet scholarly literature indicates that a person who has been convicted of multiple offenses is always more likely to offend (again) than is a person who has never offended. Indeed, even a person who has been arrested only once is always more likely to be arrested than is a never-arrested person....
We can rest assured, then, that a substantial number of released prisoners will re-offend. Who are their victims likely to be? It is likely, given the disproportionate presence of AfricanAmerican men in the prison population, that any relaxation of sentencing or early release will disproportionately benefit African-American men. Indeed, the racial disparity in incarceration is widely acknowledged to be the primary motivation for sentencing reform on the Left, and perhaps in some corners of the Right as well. Those African-American men will then return to their communities, which are more likely to be predominantly African-American. It is therefore likely that the victims of those released early will also be disproportionately likely to be black. This is not surprising — people tend to live in communities predominantly comprised of members of their own racial or ethnic group. White ex-offenders are therefore likely to victimize other white people. But the drive for sentencing reform is motivated by concern over black offenders, and so it is worth noting that their future victims are also likely to be black. If we are going to play the disparate impact card, which is much of the impetus behind sentencing reform, we should note that the disparate impact works both ways. Yes, blacks are disproportionately likely to be incarcerated. But the lives not lost or damaged because of their incapacitation due to incarceration are also disproportionately likely to be black....
There is one other thing I would like to note. Everyone at least tacitly acknowledges that much of the political pressure behind this bill is animated by a sense of racial grievance — that African-American men are incarcerated at higher rates than their presence in the population. Yet one of the reasons why we have some of these stiff sentences is because when crime was rampant, African-Americans protested the violence visited upon their communities and asked the government to get tougher on crime. If we relax sentencing, there is a very good chance that crime will go up, it will disproportionately go up in African-American communities, and then some of the same people who are presently supporting sentencing leniency will be demanding harsher penalties because of the increasing crime in their communities; and, if recent history is a guide, they will claim the increase is due to racially discriminatory policies.
Thursday, May 05, 2016
"Congress Should Follow the Red States’ Lead on Criminal-Justice Reform"
The title of this post is the headline of this notable National Review commentary authored by prominent conservatives Adam Brandon, Timothy Head, Marc Levin and Grover Norquist. Here are excerpts:
Nearly ten years ago, in 2007, Texas faced $527 million in immediate prison-construction costs, and $2 billion in additional costs by 2012. Even for a large and wealthy state, the sticker shock was staggering. Texas had seen its prison population rise dramatically. Between 1990 and 2010, the number of inmates jumped from around 50,000 to more than 155,000 — incarcerating so many inmates began to crowd out other vital areas of the budget.
Texas House Corrections Committee chairman Jerry Madden approached House speaker Tom Craddick and asked what he should do to address the rising costs. “Don’t build new prisons,” Craddick said. “They cost too much.” Madden, a Republican, got to work and, along with his colleagues from both sides of the aisle, devised a plan to tackle the state’s growing prison population. With an investment of $241 million, lawmakers created drug courts to divert low-level, nonviolent offenders into treatment programs as an alternative to incarceration and funded rehabilitation programs to reduce prisoners’ risk of recidivism when they reentered society.
The results of the Texas model are difficult to ignore: The state’s prison population declined by 14 percent and, even more importantly, crime rates dropped by 29 percent. One might argue that crime rates were dropping all over the country at the time — which is true — but if one were to listen to those in rabid opposition to justice reform, wouldn’t the reverse have happened? Instead, Texas now has its lowest crime rate since 1968 and recidivism is 9 percent less than before Texas’s 2007 reforms.
The results were so encouraging that other states sought to replicate Texas’s success. Most of the states that have moved on substantive justice reform are traditionally conservative ones. More than two dozen states — including Georgia, Mississippi, and South Carolina — have passed justice-reform packages.
Interestingly, it wasn’t until multiple Republican-controlled states moved on the issue that traditionally blue states felt that they could: They all waited for red states to move first. Hawaii, Oregon, and Rhode Island, three of the most progressive states in the country, followed the lead of conservative states. Since then, even more red states — including Alabama, Oklahoma, and Utah — have passed justice reform. Red states, and Texas in particular, provided a blueprint for other states to follow while Barack Obama was still the junior senator from Illinois....
Now is the time to bring these conservative reforms to the federal level. The federal prison population grew by nearly 800 percent between 1980 and 2013, and the Bureau of Prisons’ budget increased by almost 600 percent, from $970 million to $6.7 billion. Opponents of justice reform point to the high recidivism rate of federal prisoners as one of the reasons Congress shouldn’t act, but this is exactly why we, like so many conservative states, should act to get smarter on crime.
Moreover, there is also another angle that congressional Republicans may not have considered: There are no guarantees this fall. Conservatives could be facing four or eight more years of a Democrat in the White House, Democratic control of the Senate, and, quite possibly, the House could swing back to left-wing control. While there is more bipartisanship on criminal justice than any other issue, conservatives understand we cannot reduce the prison population without also strengthening alternatives like probation and drug courts. So, for example, there should be swift and certain sanctions — such as a weekend in jail — when someone blows off their probation officer. Some on the far left simply don’t recognize the “stick” part of the carrot-and-stick approach and want to divert savings on prisons to welfare programs rather than following Texas’s proven record by reinvesting the savings in supervision strategies that can help continue crime declines.
It’s time for congressional conservatives to reclaim the narrative that’s rightfully theirs. Justice reform is our issue. They would never admit it, but Democrats are following conservatives’ lead.
Wednesday, May 04, 2016
Extended commentary assails prosecutorial power enabled by federal mandatory minimums
Amos Irwin, who serves as Chief of Staff at the Criminal Justice Policy Foundation (CJPF), has this lengthy new Huffington Post commentary headlined "The Laws that Betrayed Their Makers: Why Mandatory Minimums Still Exist." Here are excerpts that highlight some of its main themes:
[R]ather than serving Congress’s purpose, federal mandatory minimum drug laws actually function as a prosecutor’s tool of interrogation. Since the same prosecutors who select the charges are also trying to extract information, they threaten defendants with wildly disproportionate mandatory minimums in order to force them to cooperate. They are open about this practice. The President of the National Association of Assistant U.S. Attorneys protested in July that if Congress reduces mandatory minimums, “prosecutors would lose a tool to extract information.”
They omit the fact that mandatory minimums are primarily useful for extracting information from the low-level offenders.... There are two problems with threatening long sentences to extract cooperation from low-level drug offenders. First, this strategy is ineffective in impacting the drug trade. Second, it inflicts immense collateral damage on innocent people and low-level offenders, while letting the guiltiest offenders off more easily — the opposite of what Congress intended...
Federal appeals courts have explicitly approved of prosecutors threatening defendants’ wives with charges that are rarely prosecuted, solely to force the defendants to cooperate. Federal appeals courts have explicitly approved of prosecutors threatening defendants’ wives with charges that are rarely prosecuted, solely to force the defendants to cooperate. Why would federal prosecutors threaten family members, knowing that they might have to follow through on those threats? Prosecutors see that the War on Drugs is not working, and many conclude that they need to fight the enemy more aggressively.
"Should His PTSD Keep Him From Death Row?"
The question in the title of this post is from the second part of the headline of this Mother Jones article. The first part of the headline explains "An Ex-Marine Killed Two People in Cold Blood," and here is how the piece starts:
At 12:44 p.m. on March 6, 2009, John Thuesen called 911. "120 Walcourt Loop," he told the dispatcher, breathing hard. "Gunshot victims." The dispatcher in College Station, Texas, asked what had happened. "I got mad at my girlfriend and I shot her," he said. "She has sucking chest wounds…"
He'd not only shot Rachel Joiner, 21, but also her older brother Travis. Thuesen had broken into the house after midnight, not sure what he'd do but wanting to see his estranged girlfriend. She was out with her ex-boyfriend, but when she returned later that morning, things "got out of hand." Thuesen, a 25-year-old former Marine reservist, called 911 and almost immediately expressed remorse. When he was arrested, he repeatedly asked the police about the victims and tried to explain why he'd kept shooting Rachel and her brother: "I felt like I was in like a mode…like training or a game or something."
The prosecution in the case gave its opening statement on May 10, 2010. With DNA evidence and no other suspects, it only took prosecutors three days to make their case. Over the next week, the defense team touched on the facts that Thuesen suffered from depression and post-traumatic stress disorder (PTSD) from his service in Iraq, but pleaded for leniency in his sentence. None of that swayed the jury: On May 28, 2010, he was sentenced to death.
While on death row, Thuesen was given new lawyers, death penalty experts from the state's Office of Capital and Forensic Writs. In Texas, there are often two trials, one to determine guilt or innocence and the second to determine sentencing. Lawyers argued in their 2012 petition to have both the death penalty and the conviction vacated, and for a new sentencing trial, arguing that if his lawyers had served him adequately, "John Thuesen would not be on death row today, awaiting an execution date." In July 2015, Judge Travis Bryan III — the same judge who had presided over the criminal trial — agreed, and ruled that Thuesen's lawyers hadn't adequately explained the significance of his PTSD to jurors, and how it had factored into his actions on the day of the murders. Bryan also ruled that Thuesen's PTSD wasn't properly treated by the Veterans Health Administration. He recommended that Thuesen be granted a new punishment-phase trial. The Texas Court of Criminal Appeals could rule on Bryan's recommendation at any time.
The ruling on his case has implications for a question that has concerned the military, veterans' groups, and death penalty experts: Should service-related PTSD exclude veterans from the death penalty? An answer to this question could affect some of the estimated 300 veterans who now sit on death rows across the country, according to the Death Penalty Information Center. But it's unclear how many of them suffer from PTSD or traumatic brain injuries, given how uneven the screening for these disorders has been.
Experts are divided about whether veterans with PTSD who commit capital crimes deserve what is known as a "categorical exemption" or "exclusion." Juveniles receive such treatment, as do those with mental disabilities. In 2009, Anthony Giardino, a lawyer and Iraq War veteran, argued in favor of this in the Fordham Law Review, writing that courts "should consider the more fundamental question of whether the government should be in the business of putting to death the volunteers they have trained, sent to war, and broken in the process" who likely would not be in that position "but for their military service." In a 2015 Veterans Day USA Today op-ed, three retired military officials argued that in criminal cases, defense attorneys, prosecutors, and judges often don't consider veterans' PTSD with proper due diligence. "Veterans with PTSD…deserve a complete investigation and presentation of their mental state by the best experts in the field," they wrote.
That idea is utterly unacceptable to Kent Scheidegger of the Criminal Justice Legal Foundation, a California-based victims-of-crime advocacy group, who contends a process already exists for veterans' defense attorneys to present mitigating evidence. To him, a categorical exclusion would be an "extreme step" that would mean "one factor — always, in every case — necessarily outweighs the aggravating factors of the case, no matter how cold, premeditated, sadistic, or just plain evil the defendant's actions may have been."
May 4, 2016 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1)
Tuesday, May 03, 2016
An (unhelpful?) exploration of how a troubled young man gets 50 years in Mississippi prison for first felony convictions
The Clarion-Ledger is starting a series of articles titled "Blinded Justice" that will "examine how justice and punishment are dispensed across Mississippi in wildly varying ways." This first piece, headlined "50 years for first-time felon? Tyler Moore's story," tells an interesting tale of a troubled youngster seemingly getting slammed on felony burglary charges because local prosecutors seemingly got tired of his many (misdemeanor-level?) crimes. But the article does not really explore just why prosecutors ultimately were so eager to throw the book at this particular offender. Here are excerpts from the lengthy piece which, for me, raises more state sentencing questions than answers:
Tyler Moore is serving 50 years in prison. It was the first felony conviction for the 24-year-old man, struggling to beat a drug addiction and his bipolar disorder. According to the Mississippi Department of Corrections, his tentative release date is 2061. “I’ll be dead and gone by then,” said his mother, Lisa. So how does a first-time offender who pleaded guilty to burglary get 50 years in prison? This is his story....
[In] 2010 ..., [after a charge of] misdemeanor possession of marijuana paraphernalia, Brandon police knocked on the door one morning about 5 and took him to jail on a hit-and-run charge. The charge against him arose from a party where a young man claimed Moore had run his car into him. Moore denied the claim, saying the young man jumped on his hood.
On April 1, 2011, the judge reduced the charge to leaving the scene of an accident, and Moore was fined. While walking out of the courtroom that day, he muttered to someone, “You lying sack of s---.” The judge sentenced him to 10 days in jail.
The misdemeanors kept coming — contributing to the delinquency of a minor and then shoplifting when he walked out of Belk’s with a pair of sunglasses. Moore apologized to the judge and admitted he had a drug problem. He spent two days in jail, and the judge ordered drug tests for the next six months.
In August 2011, Moore’s family opted for a change in scenery, moving to Branson, Missouri.... He passed all the court-ordered drug tests. What his family didn’t know was his drug addiction now included spice, which couldn’t be detected by the tests....
As months passed, Moore grew homesick, and an old girlfriend wanted to see him. He made it back to Mississippi before Christmas. “I return and have like no money, so what do I do?” he wrote in a sworn statement. “I decide to steal out of some cars to get some money.” In a Reservoir neighborhood, he went from car to car, stealing University of Alabama floor mats, an iPod, a University of Florida gator decal and other items.
On Feb. 2, 2012, the Rankin County Sheriff’s Department arrested him and charged him with breaking into six cars.... After two weeks in jail, the judge released him on bond with the understanding he would go to a drug rehabilitation center, where he stayed 30 days. He admitted using crack cocaine, marijuana and alcohol.
A day after his release in April 2012, deputies responded to a call, where they questioned Moore about a mother saying he had sex with her 15-year-old girl. They arrested him, and he sat in jail for two weeks on a statutory rape charge. He insisted on his innocence, but he failed his polygraph test. Once again, the judge sent him for 30 days to drug rehab.
After his release, his mother witnessed an improvement. He got a job at a car dealership... [but] when his employer learned of his burglary arrest, he was fired. Devastated, he sank into depression. A psychiatrist diagnosed him with bipolar disorder and prescribed medication. His mother said her son continued to struggle and began hanging out with the wrong crowd....
On a Thursday morning, Jan. 10, 2013, Moore discovered he had 21 missed calls on his cell phone. When he talked with his mother, she told him deputies were looking for him. “They say you’ve been breaking into houses.”... That evening, deputies showed up a second time, jailing his mother, father and 14-year-old brother on accessory after the fact charges after learning he was in Louisiana.
Moore’s grandmother decided to turn him in to the Rankin County jail on Sunday, a day before his court appearance. When they arrived in Brandon, he bolted. Deputies pursued him and caught him in a Reservoir subdivision, charging him with five counts of house burglary. With his family behind bars, he confessed to the burglaries.
In a March 4, 2013, memo, the district attorney’s office gave Moore two options: He could plead guilty to auto and home burglaries and receive 50 years, or he could plead guilty to the burglaries and statutory rape, and receive 30 years. Moore refused to plead guilty to statutory rape.
Ten days later, his new defense lawyer, John Colette of Jackson, proposed to prosecutors an alternative of 25 years in prison, with 25 suspended.... In response to the 50-year offer from prosecutors, Colette told them in a July 26, 2013, email, “Nobody was killed.”
The district attorney’s office didn’t budge. Moore faced a new charge, this time of escape, after his bunkmate tried to pry open a window in the Rankin County jail. Colette spoke with the sheriff and prosecutors, who agreed to dismiss the charge.
On Aug. 5, 2013, Moore pleaded guilty to five counts of auto burglary and one count of house burglary. “I just wanted to tell everyone I hurt I’m sorry, and my family,” he told the judge. “I’m not a bad guy. I’ve made some mistakes and I’m on drugs and I ran with the wrong crowd.”... He confessed, “I don’t understand anything anymore, and I need help.”....
In keeping with the plea bargain, the judge sentenced him to 60 years in prison, suspending 10 of those years, with each sentence running consecutively. Circuit Judge John Emfinger dismissed the other burglary charges and the statutory rape charge. Because authorities recovered nearly all of the items, the judge ordered less than $300 in restitution.
Moore thought his sentences would run concurrently. “It did not seem real,” he wrote, “and to this day, it does not seem real.”... When Moore arrived at the Central Mississippi Correctional Facility, a correctional officer thought the 50 years of time were a mistake and double-checked with Rankin County Circuit Court to make sure the burglary sentences were indeed consecutive, not concurrent....
Moore's new lawyer, veteran defense attorney Tom Fortner, said the 50 years “seems like an awfully harsh sentence for a young person without a prior felony. There are a lot of people convicted for worse crimes who aren’t getting 50 years in prison.” Fortner asked Judge Emfinger to reconsider his client’s case, saying his then-defense lawyer, Colette, failed to make clear to Moore how soon he would be eligible for parole. Moore initially believed he would be eligible for parole as early as 2017, but it turned out he won’t be eligible until at least 2025. His tentative release date is 2061.
I find this case so very interesting and blogworthy because it strikes me as a a kind of Rorschach test for assessing the state and problems with modern sentencing systems. Though the article focuses on the severe sentence Moore got at the end of this story, one could reasonably complain about all the sentencing leniency he received for his considerable prior low-level offending. Similarly, though the article suggests it was peculiar and worrisome the local DA pushed for a 50-year sentence in a plea deal, one could reasonably wonder why a sentencing judge did not seem troubled by imposing this sentence. And while a 50-year prison term seems quite extreme for just a series of (minor?) burglary offenses, one could argue that this case was sentence just right if Moore can work hard to improve himself while incarcerated so as to earn parole after serving only 12 years.
Monday, May 02, 2016
Another prominent elderly corrupt politician presenting dynamic federal sentencing issues
This lengthy Wall Street Journal article, headlined "Sheldon Silver Set to Be Sentenced: Judge has wide leeway as prosecution asks for long prison term, and defense seeks leniency for the former Assembly speaker," reports on issues surrounding a high-profile politician's federal sentencing scheduled for tomorrow in New York. Here are excerpts:
A federal judge is expected to decide Tuesday whether former New York state Assembly Speaker Sheldon Silver deserves a long prison sentence for years of corruption, or leniency because he is ill and says he is sorry.
Leading up to the decision, lawyers for Mr. Silver have filed letters of support from ex-colleagues, constituents, family members and even a former employee at a Chinese restaurant he frequented. “I know that Sheldon Silver has been convicted, but please consider his kind personality and his support to the community,” wrote Fei Chen, who was a cook at Nom Wah Tea Parlor in Manhattan’s Chinatown.
The endorsement is part of a trove of materials from both the prosecution and defense that reflect the range of factors judges are supposed to consider in public-corruption cases and the latitude they have in deciding on punishment. Judges in cases like Mr. Silver’s grapple with how to account for breaking the public trust, and to what extent a sentence should serve as a deterrent to future crime.
Mr. Silver, a Manhattan Democrat who served as Assembly speaker for more than two decades, was convicted of honest-services fraud, extortion and money laundering. Prosecutors said Mr. Silver, 72 years old, netted about $4 million in kickbacks from schemes involving a real-estate company and an oncologist. Attorneys for Mr. Silver have said they would appeal.
Prosecutors have asked U.S. District Judge Valerie Caproni for a prison sentence greater than any previously imposed on legislators convicted of public corruption in the state. Court filings suggest the longest sentence for such an official was 14 years. “Silver exploited the vast political power entrusted in him by the public to serve himself,” prosecutors wrote.
Defense lawyers have asked for leniency, suggesting “rigorous community service.” The former legislator also wrote an apology letter to the judge. “I failed the people of New York,” Mr. Silver’s letter said.
U.S. law says judges should decide sentences based not only on the offense, but also the defendant’s “history and characteristics.” Also relevant, the law says, are deterrence, public protection and the needs of the defendant, including medical care. In court filings, Mr. Silver’s lawyers have highlighted his prostate cancer, bile-duct obstruction and knee problems.
For judges, sentencing in public-corruption cases presents a particular quandary: While the convicted official usually isn’t considered a threat to public safety, or capable of committing the same crimes in the future, the government has an incentive to punish such officials harshly to deter others from similar offenses.
“The difficulty you have in high-profile cases is that there is a philosophical argument that general deterrence sometimes trumps all other factors,” said Benjamin Brafman, a defense attorney not connected to the Silver case who represented Carl Kruger, a former state senator who was convicted on public-corruption charges and sentenced to seven years.
In the case of Mr. Silver, Judge Caproni can also consider prosecutors’ evidence that Mr. Silver used his position to help two women with whom he had extramarital affairs because, like the letters, it speaks to his character. In legal filings, attorneys for Mr. Silver said the allegations were unproven.
In recent years, public-corruption cases have garnered more attention, particularly because prosecutors have become increasingly vocal when bringing charges, said Deborah Gramiccioni, executive director of NYU’s Center on the Administration of Criminal Law. “The public’s indignation perhaps seems more pronounced,” said Ms. Gramiccioni, a former federal prosecutor who worked on public-corruption cases. But such indignation doesn’t necessarily influence judges’ decisions, she said....
Data show that New York judges often diverge from the federal guidelines when awarding prison sentences. Of 3,301 cases sentenced in federal court in New York in fiscal 2015, judges awarded sentences within the guideline range in 29.5% of cases, compared with 47.3% nationwide, according to federal statistics. Of 544 fraud cases in New York, 28.5% of sentences fell within the guidelines. Just five people received sentences above the guideline range.
In Mr. Silver’s case, sentencing guidelines suggest a range from about 22 to 27 years. In sentencing filings, both prosecution and defense attorneys cite many of the same public-corruption cases, including that of Mr. Kruger, the former state senator. Attorneys for Mr. Silver note that Mr. Kruger was sentenced to well below the federal recommendations. But prosecutors note that Mr. Kruger pleaded guilty, which they view as a crucial difference. “Unlike Kruger, here Sheldon Silver has accepted no responsibility and shown no remorse for his crimes,” they said.
Thursday, April 28, 2016
Lots of discussion of felon disenfrachisement after Virginia Gov boldly restores voting rights
A new set of commentaries about felon disenfranchisement are among the valuable consequences of Virginia's Gov using his executive clemency power to restore voting rights to more than 200,000 former felons. Here is a sampling:
From The Atlanic here, "The Racist Roots of Virginia's Felon Disenfranchisement: A century ago, the commonwealth's leaders weren't circumspect about their motives."
From the Chicago Tribune here, "Why felons should be allowed to vote"
From Fox News here, "Virginia's governor, Hillary Clinton and the felon vote"
From Huffington Post here, "Americans Don’t Think Ex-Offenders Should Lose Their Right To Vote: Millions aren’t allowed to vote, but Americans want that to change."
Prior related posts:
- Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
- Virginia Gov explains his big decision to use his clemency power to restore franchise
Wednesday, April 27, 2016
"Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Records"
The title of this post is the title of this lengthy new report from the National Employment Law Project. Here is an excerpt from its executive summary:
This paper examines the significant flaws in state occupational licensing criminal background check requirements. One barrier to employment that regularly appears in state occupational licensing laws is the blanket ban, which automatically disqualifies people with certain records. As a gauge for the frequency of blanket bans in licensing laws across the nation, the ABA Inventory reports over 12,000 restrictions for individuals with any type of felony and over 6,000 restrictions based on misdemeanors. In addition, the ABA Inventory reports over 19,000 “permanent” disqualifications that could last a lifetime and over 11,000 “mandatory” disqualifications, for which licensing agencies have no choice but to deny a license.
Another aspect of the barriers facing workers with records is the prevalence of overly broad criminal record inquiries. The rationale for far-reaching inquiries is ostensibly compelling — licensing agencies seek robust information to advance public safety and health. No research, however, supports the persistent misconception that a workplace is less safe if an employee has a past record. Thus, even seemingly rational inquiries frequently operate as overly broad bans against anyone with a record.
License applicants with records face additional challenges presented by a lack of transparency and predictability in the licensure decision-making process and confusion caused by a labyrinth of different restrictions. Requirements for a single occupation vary widely across states, as do the standards applied to evaluate past offenses. Further complicating matters, the statutory language and procedures governing individual, or classes of, professions often differ from more general state licensing statutes.
Tuesday, April 26, 2016
You be the judge for "sentencing supernova": what punishment for former House speaker Dennis Hastert for structuring (and sex) offenses?
I have decided to call tomorrow's scheduled sentencing for former House speaker J. Dennis Hastert a "sentencing supernova." As science geeks know, and as this Wikipedia entry explains, a supernova is "an astronomical event that occurs during the last stellar evolutionary stages of a massive star's life, whose dramatic and catastrophic destruction is marked by one final titanic explosion." I consider any former speaker of the House to be a "massive star" and I look at his coming sentencing as the culmination of a "dramatic and catastrophic destruction" as it was slowly unearthed by federal authorities that he was committing federal banking offenses in order to pay hush money to one (of now it appears many) of Hastert's long-ago sex abuse victims.
I also am thinking of Hastert's sentencing in "supernova" terms because there are so many dynamic and debatable sentencing issues swirling around his case. This recent Chicago Tribune article, headlined "More than 40 letters in support of Hastert made public before sentencing," reviews just some of the sentencing issues in play (with my emphasis added):
More than 40 letters in support of former U.S. House Speaker Dennis Hastert — including one from his former congressional colleague Tom DeLay — were made public Friday evening in advance of his sentencing next week on hush money charges.
"We all have our flaws, but Dennis Hastert has very few," wrote DeLay, the Texas Republican who served as majority leader under Hastert in the early 2000s. "He doesn't deserve what he is going through. I ask that you consider the man that is before you and give him leniency where you can."...
Also included were letters from Hastert's wife, Jean, and sons Joshua and Ethan, who wrote of his devotion to his family and his good deeds as a coach, teacher and later as a politician. They also wrote of concerns over his failing health — Hastert's lawyers have said he suffered a stroke and near-fatal blood infection last year that left him hospitalized for weeks. "This has taken a terrible toll on our family," his wife wrote. "I am particularly worried that if he is taken from his home and the care he needs, his health will continue to deteriorate."
Hastert, 74, faces probation to up to five years in prison when he is sentenced Wednesday, although his plea agreement with prosecutors calls for a sentence of no more than six months behind bars. He pleaded guilty in October to one count of illegally structuring bank withdrawals to avoid reporting requirements, admitting in a plea agreement that he'd paid $1.7 million in cash to a person identified only as Individual A to cover up unspecified misconduct from decades earlier.
In a bombshell sentencing memorandum filed earlier this month, prosecutors alleged Hastert had sexually abused at least four wrestlers as well as a former team equipment manager when he was coach at Yorkville [more than 35 year ago]. The abuse allegedly occurred in hotel rooms during team trips and in almost-empty locker rooms, often after Hastert coaxed the teens into a compromising position by offering to massage them, prosecutors said. The filing also alleged that Hastert set up a recliner chair outside the locker room showers in order to sit and watch the boys....
When he was confronted by FBI agents about the unusual bank withdrawals in December 2014, Hastert lied and said he was just keeping his money safe because he didn't trust security at the banks, according to prosecutors. Later, he accused Individual A of extorting him by making false accusations of sexual abuse and even agreed to record phone conversations for the FBI — a gambit that fell apart when agents realized it was Hastert who was lying, according to prosecutors.
I have highlighted above the notable fact, thanks to a shrewd plea deal in this case, Hastert's punishment is statutorily limited to a prison sentencing range of zero to five years and that prosecutors are bound to recommend a sentence of no more than six months imprisonment. Prosecutors cut this deal, I suspect, because they realize that Hastert's old age and poor health and recent history of public service would make unlikely that a judge would sentence him to a very lengthy prison term.
That all said, it appears nearly undisputable that Hastert did sexually abuse numerous boys while serving as a wrestling coach decades ago and essentially got away with these crimes. (It is my understanding that the statute of limitations has passed so that he could not now be prosecuted for them.) His more recent bank/money structuring crimes are, of course, connected to these long-ago terrible crimes and Hastert also actively lied to public officials in a manner that could also have readily brought separate serious criminal charge for obstruction of justice.
Based on all these facts, I could make reasonabe arguments for sentences ranging from probation to five years, and I also could imagine lots of arguments for creative alternative sentencing terms instead of (or in addition to) a prison stint. For example, I believe some members of the community have urged the judge to require Hastert to make significant payment to groups that work with sexually abused boys. And perhaps one could strain to read federal law to argue that all of those abused by Hastert long ago are still technically victims of his more recent offenses and thus should be able to obtain some kind of restitution through his sentencing. (This would seem to be stretch, but there are reports that some other "victims" are planning to testify at Hastert's sentencing.)
So I sincerely wonder, dear readers, what supernova sentence you think should be impose in this case?
April 26, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (37)
"Roadmap to Reentry: Reducing Recidivism Through Reentry Reforms at the Federal Bureau of Prisons"
The title of this post is the title of this new programming publication from the US Department of Justice. Here is part of its "Overview":
Each year, more than 600,000 citizens return to neighborhoods across America after serving time in federal and state prisons. Another 11.4 million individuals cycle through local jails. And nearly one in three Americans of working age have had an encounter with the criminal justice system — mostly for relatively minor, non-violent offenses, and sometimes from decades in the past. Federal prisoners are held at the Bureau of Prisons (BOP), a law enforcement agency of the U.S. Department of Justice and the country’s largest and most complex prison system — housing nearly 200,000 prisoners in 122 federally-operated correctional institutions, 13 privately-operated secure correctional facilities, and a network of more than 175 community-based centers around the country....
The long-term impact of a criminal record prevents many people from obtaining employment, housing, higher education, and credit — and these barriers affect returning individuals even if they have turned their lives around and are unlikely to reoffend. These often-crippling barriers can contribute to a cycle of incarceration that makes it difficult for even the most wellintentioned individuals to stay on the right path and stay out of the criminal justice system. This cycle of criminality increases victimization, squanders our precious public safety resources, and wastes the potential of people who could be supporting their families, contributing to the economy, and helping to move our country forward.
Under the Obama Administration, the Department of Justice has already taken major steps to make our criminal justice system more fair, more efficient, and more effective at reducing recidivism and helping formerly incarcerated individuals return to their communities. In 2011, the Department established the Federal Interagency Reentry Council, a unique Cabinet-level effort to remove barriers to successful reentry. The Reentry Council, which now includes more than 20 federal departments and agencies, has developed significant policies and initiatives that aim not only to reduce recidivism, but also to improve public health, child welfare, employment, education, housing, and other key reintegration outcomes.
To ensure that all justice-involved individuals are able to fulfill their potential when they come home, Attorney General Lynch has launched a major effort to support and strengthen reentry programs and resources at BOP. These principles of reform — known as the Roadmap to Reentry — will be implemented throughout BOP, deepening and further institutionalizing the Department’s commitment to reentry. These efforts will help those who have paid their debt to society prepare for substantive opportunities beyond the prison gates; promoting family unity, contributing to the health of our economy, and sustaining the strength of our nation.
The Department has also established full-time positions to promote reentry work at BOP, the Executive Office for United States Attorneys, and the Office of Justice Programs; this includes hiring the first-ever Second Chance Fellow — a formerly incarcerated individual with deep expertise in the reentry field — to assist in development of reentry policy initiatives. BOP established a new Reentry Services Division to better equip inmates with the tools needed for success outside the prison walls, including expanded mental health and substance abuse treatment programs and improved work and educational opportunities. Through the community of U.S. Attorneys, the Department participates in reentry and diversion courts in more than 50 judicial districts nationwide. And the Department supports state, local, and tribal reentry efforts by providing resources under the Second Chance Act of 2007: the Department’s Office of Justice Programs has made nearly 750 Second Chance Act grants totaling more than $400 million, and established a National Reentry Resource Center that serves as a one-stop resource for returning citizens, advocates, and stakeholders.
April 26, 2016 in Collateral consequences, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)
Monday, April 25, 2016
Deep thoughts about sentencing, sentencing rules, and sentencing rule-making
I just came across these two interesting new papers on SSRN that raise lots of interesting and deep thoughts about both sentencing outcomes and sentencing rules and sentencing decision-making:
Confronting Political Disagreement About Sentencing: A Deliberative Democratic Framework by Seth Mayer & Italia Patti
Abstract: There is broad agreement that the American criminal sentencing system is deeply flawed, yet current theoretical frameworks for sentencing have failed to offer a way forward for reform. These frameworks have not faced up to political disagreement. Instead, they either try to impose disputed moral theories or they downplay normative considerations and seek to impose numerically consistent, rather than normatively justified, sentences. The failures of both approaches are in evidence in the process that led to the development of the United States Sentencing Guidelines.
This Article is the first to offer a framework to directly and effectively confront political disagreement. It draws on deliberative democratic conceptions of legitimacy to develop a framework for sentencing that addresses disagreement. Deliberative democracy offers a normatively grounded approach to managing disagreement through collective reasoning, which aims to place the legal system under public control. This Article articulates criteria for evaluating legal systems from the perspective of a particular conception of deliberative democratic legitimacy and offers reforms to enable the current system to better embody those criteria.
Rules, Standards, Sentencing, and the Nature of Law by Russell Covey
Abstract: Sentencing law and practice in the United States can be characterized as an argument about rules and standards. Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions. As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this "rulification" of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the debate between sentencing reformers and their critics is a paradigmatic illustration of the limits of relying upon modifications of legal form to enhance substantive justice.
Building upon the work of legal theorists who have considered the rules versus standards conundrum, this article uses sentencing law as a lens to view some of the fundamental perplexities that bedevil law's grander aspirations -- for determinacy, fairness, even coherence itself. Because, it is argued, refinements in legal form will never achieve the substantive goals to which law strives, the Essay urges a turn away from formal equality and toward a conception of sentencing justice that is centered on process values such as respect for those affected by sentencing decisions, concern that all voices be adequately heard, and decision making that reflects the considered moral judgment of the decision maker.
Sunday, April 24, 2016
American Enterprise Institute leader explains why we need to reform "the status quo in criminal justice"
Arthur C. Brooks, president of the American Enterprise Institute (AEI), has this notable new commentary explaining the role his organization is playing in National Reentry Week and in broader criminal justice reform efforts. (For those who do not know, AEI is a public-policy group "committed to expanding liberty, increasing individual opportunity and strengthening free enterprisehe status quo in criminal justice," with GOP politicians like Dick Cheney and Peter Coors and many corporate titans on its Board of Trustees.) The piece is titled "Reforming the status quo in criminal justice," and here are excertps (with links and emphasis from the original):
On Monday morning, AEI is co-hosting a discussion on America’s criminal justice system with the White House and the Brennan Center for Justice. The event will kick off at 10:00 am EDT on Monday April 25 in the Eisenhower Executive Office Building, next door to the White House. You can livestream my introductory remarks and the entire event on the White House’s website, and our team will be sharing parts of it in real time on Twitter.
At first blush, this kind of event might seem a little unusual. A Democratic administration, a major university’s criminal justice center, and a free-enterprise-focused think-tank coming together to discuss mass incarceration? That kind of diverse collaboration is not exactly commonplace in Washington, D.C.
But we believe that collaboration and open discussion are possible across the political spectrum. We jump at opportunities to bring our principles into good-faith dialogue and debate with colleagues of all views on critical subjects. (For more on this subject, check out a recent interview I gave to the “TED Radio Hour” podcast.)
Data show that only about one-third of incarcerated Americans get to participate in any education, vocational, or pre-release programs while behind bars. One professor who studies our prison population estimates that roughly half of all people in prison are functionally illiterate. And partially as a result of these factors, roughly two-thirds of all parolees wind up back in prison within three years of their release.
To be sure, excessive spending and economic inefficiency are serious consequences of this inefficient system. But the heaviest costs that America bears for this human capital tragedy are not material. They are moral. When we talk about a person who comes out of prison barely able to read and utterly unprepared for citizenship, we are talking about a person stripped of his basic dignity. When we see a person who is asked to re-enter productive society but has no plausible job prospects, we are looking at someone whose human potential has been badly stunted....
Through action and inaction alike, our society has effectively decided that there are millions of our brothers and sisters, the incarcerated and the formerly incarcerated, whom we simply do not need. At worst, we view them as human liabilities we must coexist with and manage at minimal cost; at best, as people we can tolerate and try to help. But as dormant assets to be enlivened and empowered? Hardly ever.
If we committed ourselves and our society to the moral principle that we need to need everyone, how would criminal justice policy change? That’s a question we at AEI are dedicated to exploring. My colleagues’ fascinating work on this topic already speaks for itself, and the year ahead will see us continue expanding our work on inmate education and re-entry.
A few recent related posts:
- Economists explain "Why Mass Incarceration Doesn’t Pay"
- "Department of Justice to Launch Inaugural National Reentry Week"
- White House Counsel on Economic Advisors releases big report providing "Economic Perspectives on Incarceration and the Criminal Justice System"
Saturday, April 23, 2016
White House Counsel on Economic Advisors releases big report providing "Economic Perspectives on Incarceration and the Criminal Justice System"
As highlighted in this prior post, Jason Furman, chairman of the White House Council of Economic Advisers, co-authored a New York Times commentary this past week headlined "Why Mass Incarceration Doesn’t Pay." Today, the full Council of Economic Advisers released this big new report titled "Economic Perspectives on Incarceration and the Criminal Justice System." Here is part of the lengthy report's lengthy executive summary:
Calls for criminal justice reform have been mounting in recent years, in large part due to the extraordinarily high levels of incarceration in the United States. Today, the incarcerated population is 4.5 times larger than in 1980, with approximately 2.2 million people in the United States behind bars, including individuals in Federal and State prisons as well as local jails. The push for reform comes from many angles, from the high financial cost of maintaining current levels of incarceration to the humanitarian consequences of detaining more individuals than any other country.
Economic analysis is a useful lens for understanding the costs, benefits, and consequences of incarceration and other criminal justice policies. In this report, we first examine historical growth in criminal justice enforcement and incarceration along with its causes. We then develop a general framework for evaluating criminal justice policy, weighing its crime-reducing benefits against its direct government costs and indirect costs for individuals, families, and communities. Finally, we describe the Administration’s holistic approach to criminal justice reform through policies that impact the community, the cell block, and the courtroom....
Criminal justice policies have the capacity to reduce crime, but the aggregate crime-reducing benefits of incarceration are small and decline as the incarcerated population grows.
- Given that the U.S. has the largest prison population in the world, research shows that further increasing the incarcerated population is not likely to materially reduce crime.
- Economic research suggests that longer sentence lengths have little deterrent impact on offenders. A recent paper estimates that a 10 percent increase in average sentence length corresponds to a zero to 0.5 percent decrease in arrest rates.
- Emerging research finds that longer spells of incarceration increase recidivism. A recent study finds that each additional sanction year causes an average increase in future offending of 4 to 7 percentage points.
Investments in police and policies that improve labor market opportunity and educational attainment are likely to have greater crime-reducing benefits than additional incarceration.
- Expanding resources for police has consistently been shown to reduce crime; estimates from economic research suggest that a 10 percent increase in police force size decreases crime by 3 to 10 percent. At the same time, more research is needed to identify and replicate model policing tactics that are marked by trust, transparency, and collaborations between law enforcement and community stakeholders.
- Labor market conditions and increased educational attainment can have large impacts on crime reduction by providing meaningful alternatives to criminal activity. Estimates from research suggest that a 10 percent increase in the high school graduation rate leads to a 9 percent drop in arrest rates, and a 10 percent increase in wages for non-college educated men leads to a 10 to 20 percent reduction in crime rates....
Given the total costs, some criminal justice policies, including increased incarceration, fail a cost-benefit test.
- Economic researchers have evaluated the costs and benefits of policies in different criminal justice areas and find that relative to investments in police and education, investments in incarceration are unlikely to be cost-effective.
- Moreover, cost-benefit evaluations of incarceration and sentencing often fail to consider collateral consequences, which would render these policies even more costly.
- CEA conducted “back-of-the-envelope” cost-benefit tests of three policies: increasing incarceration, investing in police, and raising the minimum wage.
- We find that a $10 billion dollar increase in incarceration spending would reduce crime by 1 to 4 percent (or 55,000 to 340,000 crimes) and have a net societal benefit of -$8 billion to $1 billion dollars.
- At the same time, a $10 billion dollar investment in police hiring would decrease crime by 5 to 16 percent (440,000 to 1.5 million crimes) have a net societal benefit of $4 to $38 billion dollars.
- Drawing on literature that finds that higher wages for low-income individuals reduce crime by providing viable and sustainable employment, CEA finds that raising the minimum wage to $12 by 2020 would result in a 3 to 5 percent crime decrease (250,000 to 510,000 crimes) and a societal benefit of $8 to $17 billion dollars.
"The Prison Reformer Who Champions Ted Cruz"
The title of this post is the headline of this notable new Ozy article about a notable supporter of Senator Ted Cruz, who also has played a bit role in sentencing reform in Maryland. Here is how it starts:
Michael Hough’s statehouse digs are filled with awards — from the American Conservative Union here, the Leadership Institute there. You can’t miss the gold-framed Declaration of Independence, the old George W. Bush campaign sign or the NRA logo carpet outside the state senator’s office. The photo of him and Ted Cruz glad-handing isn’t shocking, either, since Hough’s leading the presidential candidate’s primary efforts here in Maryland. What’s more surprising: the picture next to it — of Hough and his wife, posing with another White House hopeful. “My wife likes Donald,” the father of three says, painfully.
What’s a state campaign chairman to do? Hough’s received high praise as “a respected conservative leader” from Cruz himself, though the 36-year-old lawmaker faces not just a divided home, but a divided state — one that could go the way of his wife if polls hold true during Maryland’s primary on Tuesday. It’s just one of many apparent contradictions. Bespectacled with a slick, Cruz-ian comb-over, Hough today looks nothing like the long-haired rock star of his garage-band days. He’s an Air Force vet who never served outside Wyoming. And while he plays the part of a bona fide guns-and-faith conservative well, Hough’s most significant work is in … compassionate prison reform?
The Justice Reinvestment Act — which eases sentencing laws for nonviolent drug offenders and pushes offenders to treatment rather than prison — passed into law this month, in no small part thanks to Hough, who led the Republican efforts to craft it. He’s also helped push through bills limiting civil asset forfeiture (“You had the ACLU and the prosecutors support it, which never happens,” he brags) and reforming police conduct and accountability — without being “antipolice,” Hough claims. Popping open a Diet Coke, at just past 8 a.m., Hough calls the justice act the largest reform “in a generation” — and some experts agree it’s a doozy.
Yet, not everyone’s happy: “The Senate amended the life out of it,” the Maryland Alliance for Justice Reform’s Pat Schenck tells OZY. It’s something to build off of and “a once-in-a-lifetime bill,” says Keith Wallington of the Justice Policy Institute, if only because “Maryland has (historically) set the bar pretty low for justice reform.” And while an early proposal included a reduction in prisons and budget savings nearing $250 million over 10 years, the Senate version went down to “a paltry” $34 million, Wallington says. “That’s a little overblown,” Hough counters, though he agrees the budget savings in the final bill will be less than originally projected.
At first blush, this stalwart Republican seems like an unlikely advocate for addicts and rampant recidivists. But while GOPers such as Richard Nixon and Ronald Reagan birthed and expanded the war on drugs decades ago, red state leaders from Texas to Utah and Georgia have recently championed justice reform due to both compassionate conservatism and a response to “draconian laws” that proved costly yet rarely improved public safety, says Lauren Krisai with the Reason Foundation, a libertarian think tank. As a teen growing up with an alcoholic father, Hough knew the tug and pull of crime and addiction — the Nirvana fan got through those years fixing cars, dying his hair blond and red, and ignoring school to the tune of a 2.0 GPA — but as an adult he became an expert in addressing those problems. “We over-criminalize everything,” says Hough, whose non-legislature job is as a senior policy adviser on criminal justice for the Faith & Freedom Coalition. “This is where my Christianity and libertarianism come together.”
Friday, April 22, 2016
"Department of Justice to Launch Inaugural National Reentry Week"
The title of this post is the title of this official US Department of Justice press release. Here are excerpts from the release and details on a few of the planned events of the week that I am especially interested in:
As part of the Obama Administration’s commitment to strengthening the criminal justice system, the Department of Justice designated the week of April 24-30, 2016, as National Reentry Week. Attorney General Loretta E. Lynch and U.S. Department of Housing and Urban Development Secretary Julián Castro will travel to Philadelphia on MONDAY, APRIL 25, 2016, to hold events as part of National Reentry Week with public housing advocates, legal services providers and community leaders where they will announce new efforts to improve outcomes for justice-involved individuals including youth.
Later in the week, the Attorney General will visit a Federal Bureau of Prisons (BOP) facility in Talladega, Alabama, to highlight reentry programs in prison. Similarly, Deputy Attorney General Sally Q. Yates will visit a federal women’s prison in Texas and will later hold a media availability at Santa Maria Hostel, a specialized residential substance abuse, mental health and trauma facility. Acting Director Thomas Kane of the Bureau of Prisons will accompany both Attorney General Lynch and Deputy Attorney General Yates on their visits....
The Obama Administration has taken major steps to make our criminal justice system fairer, more efficient and more effective at reducing recidivism and helping formerly incarcerated individuals contribute to their communities. Removing barriers to successful reentry helps formerly incarcerated individuals compete for jobs, attain stable housing, and support their families. An important part of that commitment is preparing those who have paid their debt to society for substantive opportunities beyond the prison gates, and addressing collateral consequences to successful reentry that too many returning citizens encounter.
Leadership from across the Administration are traveling during National Reentry Week in support of these many events and are encouraging federal partners and grantees to work closely with stakeholders like federal defenders, legal aid providers and other partners across the country to increase the impact of this effort. National Reentry Week events are being planned in all 50 states, the District of Columbia, Puerto Rico and the Virgin Islands. U.S. Attorney’s Offices alone are hosting over 200 events and BOP facilities are holding over 370 events....
• On Monday, April 25, 2016, the White House will hold an event with the Brennan Center on the costs of incarceration.
• On Monday, April 25, 2016, Deputy Attorney General Sally Q. Yates will deliver remarks before a screening of “Pull of Gravity” a documentary that follows returning inmates as they encounter reentry obstacles, hosted by the Justice Department as part of National Reentry Week. Assistant Attorney General Leslie R. Caldwell of the Criminal Division will also participate....
• On Wednesday, April 27, 2016, the White House will host the Fair Chance Opportunities Champions of Change event in South Court Auditorium. Attorney General Loretta E. Lynch will deliver remarks and Deputy Attorney General Sally Q. Yates will moderate a panel at the event....
• On Thursday, April 28, 2016, the head of the Civil Rights Division, Principal Deputy Assistant Attorney General Vanita Gupta of the Civil Rights Division will deliver remarks at a reentry event at Mickey Leland Transitional Housing Facility, sponsored by the U.S. Attorney’s Office for the District of Columbia....
Iowa Supreme Court requires giving reasons for even a presumptive consecutive sentence, and concurrence laments when "sentencing is given short shrift"
I helpful reader alerted me to an interesting little decision from the Supreme Court of Iowa today that makes me fell extra good going into the weekend. For starters, the majority opinion in Iowa v. Hill, No. 15–0030 (Iowa April 22, 2016) (available here), reaches the important and valuable conclusion that a sentencing court must give reasons to justify a consecutive sentence even if the law creates a presumption for such a sentence. Second, a special concurring opinion by Justice Appel cites some of my scholarship to stress the point that sentencing proceedings should generally get a lot more attention.
Here is the start of the majority opinion in Hill:
In this appeal, we must decide whether the presumption for consecutive sentences in Iowa Code section 908.10A (2013) excuses the district court from the general requirement to state why it imposed a consecutive sentence and, if not, whether the district court’s stated reason for this consecutive sentence was adequate. The defendant pled guilty to failure to comply with sex-offender registry requirements, an offense he committed while on parole for the underlying sex crime. The district court imposed a two-year prison sentence consecutive to his parole revocation and stated, “The reason for the sentence is protection of the community, seriousness of the crime, and the nature and circumstances of the offense.” The defendant appealed on grounds that the sentencing court failed to give reasons for imposing a consecutive sentence. The court of appeals affirmed, concluding the statutory presumption for consecutive sentences obviated any need to give reasons for imposing the consecutive sentence. The dissenting judge disagreed, noting section 908.10A allows discretion to impose concurrent or consecutive sentences, requiring the sentencing court to give reasons for its choice. On further review, we hold the district court must give reasons for imposing a consecutive sentence under section 908.10A and that the reasons given in this case were insufficient. Accordingly, we vacate the decision of the court of appeals, vacate the sentencing order, and remand the case for resentencing.
And here are snippets from Justice Appel's special concurring opinion in Hill:
In this era of plea bargains, sentencing is often the most critical phase of a criminal proceeding.... But too often in our courtrooms, sentencing is given short shrift by the participants. There often seems to be an assumption that the process that led to the determination of guilt is generally sufficient to inform the court of the necessary information for sentencing....
Once a lawyer has fulfilled the distinct professional responsibilities related to sentencing, the district court must exercise its discretion in setting the sentence. Even in a case that seems less consequential than other matters on a court’s crowded docket, the impact on the parties with a stake in the sentencing decision is substantial and requires a careful, thoughtful discretionary decision by the district court. Sentencing is not a time to cut corners....
The decision regarding whether sentences are served concurrently or consecutively ... is often of great moment and, as the court recognizes, must be made separately from the underlying sentence on each count. A decision to impose a lengthy prison term for the underlying crimes is not the same as the geometric increase in incarceration that may result from a decision to run sentences consecutively. In considering the distinct question of whether to run sentences consecutively or concurrently, the district court must be careful to avoid mere boilerplate recitation and demonstrate an exercise of reasoned judgment.
Just how should sentencing law deal with a truly habitual petty criminal?
This morning I came across this recent Huffington Post piece lamenting in its headline a seemingly a very severe application of Louisiana's habitual offender law: "Louisiana Man May Face Life For Shoplifting Snickers Bars: Critics say the case shows how habitual-offender laws can bully small-time crooks into pleading guilty rather than risking the consequences of a trial." To its credit, the HuffPo piece use this latest shoplifting case story to talk more generally about how severe mandatory sentencing laws can functionally place tremendous pressure on a defendant to plead guilty to try to avoid an extreme prison term.
But, rather use this story to reiterate my long-standing disaffinity for severe mandatory sentencing provisions (especially because of the often unchecked power it can place in the hands of prosecutors), I did a bit of digging into the story behind the habitual offender now in big trouble for his candy caper, and what I found prompted the question in the title of this post. Consider specifically the factual backstory reported in this local piece headlined "Accused New Orleans candy thief, facing 20 years to life, turns down deal for 4 years":
New Orleans shoplifter Jacobia Grimes, facing a possible sentence of 20 years to life for stuffing $31 worth of candy bars into his pockets at a Dollar General store, has rejected a plea offer from District Attorney Leon Cannizzaro’s office that would have seen him serve a four-year sentence as a double offender, his attorney said Friday.
The offer was the same sentence that Grimes agreed to serve when he pleaded guilty in 2010 to swiping socks and trousers in a similar shoplifting attempt. Grimes, 34, did not appear in court for a hearing Friday. He remains jailed on a violation of his $5,000 bond, having tested positive last week for opiates, cocaine, oxycodone and marijuana.
But Criminal District Court Judge Franz Zibilich again suggested to prosecutors and Grimes’ attorneys that they work out a deal for less jail time, followed by probation and drug treatment. Zibilich noted Grimes’ lengthy criminal record, which includes more than a dozen arrests since 2000. Most of the nearly nine years he has spent in prison since 2001 were the result of shoplifting convictions, records show. “I agree he has to pay the consequences, even though it’s candy. I would like to see some sort of split sentence,” Zibilich said.
However, Assistant District Attorney Iain Dover said state law may not allow it, given Grimes’ status as a potential “quad” offender under the state’s habitual offender law. “I can’t see how we get there under the law,” Dover said.
Cannizzaro’s office charged Grimes in a bill of information Feb. 3 under a state statute for theft of goods by someone with multiple convictions for the same thing. His earlier convictions elevated his alleged candy heist, on Dec. 9 at a Dollar General store on South Claiborne Avenue, to a felony. Whether Grimes would face 20 years to life if he’s convicted of the candy theft would be up to Cannizzaro’s office. State laws give prosecutors discretion following a conviction to raise the ante by filing a “multiple bill.”
His case, given the nature of the crime and the possible penalty, has gained wide attention, prompting Cannizzaro to publicly dismiss the notion that he would seek such a heavy sentence for a shoplifter. Dover argued that Grimes’ criminal record shows that slaps on the wrist don’t seem to work. “It’s not the state’s fault. It’s this guy’s fault. He’s had a chance. He’s had the opportunities,” Dover said.
Zibilich suggested that both sides could agree to go below the mandatory minimum prison sentence in a plea deal that includes treatment, so long as nobody challenged it. “Do we have to be married to every single syllable of this book?” he asked of the state’s penal code.
Grimes’ trial is scheduled for May 26. His attorneys, Miles Swanson and Michael Kennedy, have opted to forgo a jury and let Zibilich decide the case.
This only things that seems really obvious to me in this case is that even some extended stints in state prison are not working to help Jacobia Grimes stop being a petty criminal. Even recognizing that incapacitating this petty criminal via incarceration is likely not especially cost effective for the taxpayers of Louisiana, at this point what other punishment options would you suggest the prosecutor and judge seriously consider under these circumstances?
April 22, 2016 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
"Why I refuse to send people to jail for failure to pay fines"
The title of this post is the headline of this lengthy recent Washington Post commentary authored by Ed Spillane, the presiding judge of the College Station Municipal Court and president of the Texas Municipal Courts Association. Here are excerpts:
As a municipal judge in College Station, Tex., I see 10 to 12 defendants each day who were arrested on fine-only charges: things like public intoxication, shoplifting, disorderly conduct and traffic offenses. Many of these people, like Melissa, have no money to pay their fines, let alone hire a lawyer.
What to do with these cases? In Tate v. Short, a 1971 Supreme Court decision, the justices held that jail time is not a proper punishment for fine-only criminal cases, citing the equal protection clause of the 14th Amendment. But in many jurisdictions, municipal judges — whether they’re overworked, under pressure to generate revenue through fees, skeptical of defendants’ claims to poverty or simply ignorant of the law — are not following the rules. As a result, far too many indigent defendants are cited for contempt of court and land behind bars for inability to pay.
There’s another way, and I’ve been experimenting with it in my own courtroom.
There are no firm numbers nationally on how many fine-only cases end with the defendants in jail, but figures from particular jurisdictions around the country are grim, if partial. A 2014 survey by NPR, New York University’s Brennan Center for Justice and the National Center for State Courts showed that in Benton County, Wash., a quarter of people in jail for misdemeanors on a typical day were there for nonpayment of fines and court fees. (The study also found that civil and criminal fees and fines had increased in 48 states since 2010.) The percentage of jail bookings in Tulsa involving inmates who had failed to pay court fines and fees more than tripled, from 8 to 29 percent of 1,200 inmates, between 2004 and 2013, according to reporting by the Tulsa World. Eighteen percent of all defendants sent to jail in Rhode Island between 2005 and 2007 were incarcerated because of court debt; in 2005 and 2006, that amounted to 24 people per day....
Fortunately, courts and judges are not powerless to fix the system.
First, defendants must be allowed to argue economic hardship in an indigency hearing, which is Constitutionally required if a defendant says he or she can’t pay. It’s unclear how many judges skip these hearings, and practices vary from one jurisdiction to another, but Lauren-Brooke Eisen, senior counsel at the Brennan Center, says there’s no question that some judges aren’t holding them. “Sometimes it’s not always nefarious,” Eisen says. “They have very full dockets. . . . It can require overtime just to finish their docket for the day. It’s not always a deliberate decision to not hold those hearings.”...
Once a defendant proves indigency, we can also be much more creative in our sentencing than “fine or jail” (or a suspended driver’s license, a popular measure that disproportionately hurts low-income workers who can’t get to their jobs without driving). Community service at a nonprofit or government entity is one of the strongest tools judges have at their disposal; in my experience, it boosts defendants’ self-esteem and provides valuable assistance to organizations that need the help....
Judges can also sentence defendants to anger-management training, classes for first-time offenders or drunk-driving-impact panels. National research shows that alternative sentencing like teen court can reduce recidivism, and my time on the bench confirms this. One defendant in an alcohol-related case, Jeff Schiefelbein, was sent to a Mothers Against Drunk Driving victim-impact panel in 1997. He was so moved by the experience that he decided to create a designated-driver program for anyone who is intoxicated and needs a ride home. Since 1999, his organization, Carpool, has provided on average 650 rides each weekend in College Station.
And occasionally, as a judge, you can choose mercy. Roger S. was facing an $800 fine for speeding, driving without insurance or registration and driving with defective equipment. He also had terminal cancer. He wrote to me, explaining that he could not afford his treatments, much less what he owed the court. I picked up the phone and called him from court. He was a little surprised but pleased to be talking to the judge. After discussing his medical treatment and all of those costs in detail, I waived his fines because of indigency and inability to perform community service, much to his and his family’s relief....
Of course, no matter how many great alternatives judges can provide instead of jail time, if a defendant fails to come to court, he or she won’t be able to hear about them. Courts must be as accessible as possible, and that starts with allowing children to accompany their parents. One of the revelations in the Justice Department’s report on Ferguson was that children weren’t allowed in municipal court, which explains why many defendants were unable to appear. Several courts in Texas limit or don’t allow parents bringing their children, even though kids don’t present a problem in my court — maybe because we provide coloring books and toys for them to play with while their parents take care of their cases....
I used to prosecute felonies as an assistant district attorney in Brazos County. During that time, I worked for a year in the intake division. This drove home a lesson that my boss, the district attorney, had been trying to instill in me: Every case file is an individual whose rights are as important and sacred as mine or those of my family. The decision to charge or dismiss demands empathy and vigilance. Misdemeanor criminal cases provide an opportunity for a much happier outcome than most felonies because there is a genuine chance for a defendant to learn from a mistake and never set foot in a courtroom again — and keeping someone out of jail is a good way to ensure that happens. In these cases, it should be possible for defendants to resolve their cases without losing their liberty.
All judges want to uphold the rule of law in the communities we serve, but too often we can get lost in the day-to-day business of running a court; we ignore the consequences of what we do. An arrest can cost a citizen his or her job, dignity and security. Alternative sentencing is a way to achieve what we should all want: an end to criminal behavior.
April 22, 2016 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)
Thursday, April 21, 2016
"Restoring Human Capabilities After Punishment: Our Political Responsibilities Toward Incarcerated Americans"
The title of this post is the title of this lengthy paper by Kony Kim now available via SSRN. Here is the abstract:
Why should non-incarcerated Americans invest in the wellbeing of incarcerated Americans? To date, our public discourse about penal reform has avoided this question, focusing on pragmatic reasons for facilitating “prisoner reentry” and “reintegration” while shelving unresolved, and deeply contested, philosophical questions about criminal justice and punishment. As a result, we as a society have engaged in much data-driven policy talk about the economic costs and benefits of reducing recidivism, but little normative reflection about the rights and responsibilities held by incarcerated adults who are at once human beings, members of society, persons convicted of crimes, victims of inhumane punishment — and, often, survivors of poverty.
Thus, my first task is to clarify the individual and collective obligations that apply within our context of mass incarceration: the moral responsibilities that are held by and toward incarcerated Americans, non-incarcerated Americans, and our shared public institutions. My second task is to draw out implications for policy and discourse: to explain not only what reform measures we should prioritize, but how we should frame and assess them. In particular, I call for systemic changes that would provide all incarcerated Americans with opportunities to pursue higher education and to develop redemptive self-narratives; and I argue that we should frame and assess such measures not primarily as cost-saving devices, but as ethically significant efforts to secure capabilities that are essential to human flourishing and required by justice.
In setting forth these arguments, my purpose is to spark deeper ethical reflection about correctional reform, and specifically to invite meaningful engagement with one key normative question: What do we, as a civilized society with a history of social and penal injustice, owe incarcerated Americans? Ultimately, I wish to underscore that the people confined in our prisons have legitimate moral claims upon us – insofar as they remain human beings and members of society and, as such, bearers of rights as well as responsibilities. Equally, I wish to establish that, in our collective efforts to repair the harms of mass incarceration, we can and should empower those Americans most directly harmed by our penal system to lead the way in transforming it.
Economists explain "Why Mass Incarceration Doesn’t Pay"
Jason Furman, chairman of the White House Council of Economic Advisers, and Douglas Holtz-Eakin, a former director of the Congressional Budget Office, have this new New York Times commentary headlined "Why Mass Incarceration Doesn’t Pay." Here are excerpts:
Congress is considering bipartisan legislation to loosen tough sentencing laws. The bill faces resistance from some lawmakers. As economists who differ on many issues, we both agree that costbenefit analysis provides a useful framework for analyzing complicated questions. And in this case, we agree that the verdict of such analysis is clear: Our sentencing rules are failing and need to be changed.
On the benefit side of the equation, prisons and jails play an essential role in managing violent criminals and reducing crime, particularly helping people in poor communities who are the most likely to be victims of murder, robbery or other violent crimes.
But a general rule in economics — the law of diminishing marginal benefits — applies to incarcerating additional people or adding years to sentences. Research finds that more incarceration has, at best, only a small effect on crime because our incarceration rate is already so high. As the prison population gets larger, the additional prisoner is more likely to be a less risky, nonviolent offender, and the value of incarcerating him (or, less likely, her) is low.
The same general principle applies to the length of prison sentences, which in many cases have gotten longer as a result of sentence enhancements, repeatoffender laws, “three strikes” laws and “truth-in-sentencing” laws. Longer sentences do not appear to have a deterrent effect; one study finds, for example, that the threat of longer sentences has little impact on juvenile arrest rates. Other studies have found that sentencing enhancements have only modest effects on crime. They are unlikely to meaningfully affect the overall crime rate or generate meaningful gains in public safety.
Moreover, in many cases the analysis suggests that adding prisoners or years to sentences can be harmful. A growing body of research shows that incarceration and longer sentences could increase recidivism. Individuals may build criminal ties while incarcerated, lose their labor-market skills and confront substantial obstacles to reentry after release. A new study finds that each additional year of incarceration increases the likelihood of reoffending by four to seven percentage points after release.
The bottom line: The putative benefits of more incarceration or longer sentences are actually costs. Those costs are not confined to the prison population. Time in prison not only means a loss of freedom, but it also means a loss of earnings, risks to the health and safety of the incarcerated, and prolonged absences from family that can strain marriages and increase behavioral problems in children. The probability that a family is in poverty increases by nearly 40 percent while a father is incarcerated....
Finally, more than $80 billion is spent annually on corrections, or over $600 per household. The annual cost of imprisoning one person averages approximately $30,000 for adults and $110,000 for juveniles, higher than the cost of a year of college. At the federal level, the Bureau of Prisons budget grew 1,700 percent from 1980 to 2010 and now devours more than 25 percent of the entire Department of Justice budget.
There are other tools that can reduce crime more cost-effectively, including promoting employment and wage growth and investing in education. That is one reason that between 2008 and 2012, a majority of states were able to reduce incarceration and crime. Incarceration plays an important role in promoting public safety, and imposing prison sentences for criminal conduct has moral and practical dimensions. But the criminal justice system should be designed to ensure that the benefits of incarceration exceed the costs. Individuals incarcerated for nonviolent drug crimes — 50 percent of the federal prison population — pose a low risk, and the costs of incarcerating these people outweigh the benefits.
Similarly, since criminal behavior declines and costs increase with age, releasing older individuals who have already served lengthy sentences is also likely to yield net benefits.
Wednesday, April 20, 2016
Your tax dollars at work?: cost accounting for Aurora theater shooter James Holmes' failed capital trial
As a matter of abstract philosophy, I have struggled for decades concerning my opinion on capital punishment. But as a matter of modern public policy, I have generally concluded that the death penalty is not a great use of limited resources for most states. This new Denver Post article, headlined "Aurora theater shooting trial cost taxpayers at least $3 million: Final cost of James Holmes' trial in the Aurora theater shooting likely won't ever be known," reinforces my perspectives in this regard. Here are the details:
Jailing, evaluating and prosecuting the man who committed the Aurora movie theater shooting cost taxpayers at least $3 million, but the final expense of one of the mostly closely watched court cases in Colorado history may never be known. The $3 million tab was compiled by The Denver Post following multiple open-records requests over the past year. It covers the amount spent from 2012 through 2015 specifically on preparing for and seeing through the trial of James Holmes.
Nearly $1.6 million of the cost was covered by federal grants. When including the salaries of judges, prosecutors, sheriff's deputies and other government employees who spent most or all of their time on the case — but who would have been paid regardless — the total cost rises to more than $7 million.
And there's still a big chunk of expense missing from that amount. The state's taxpayer-funded public defenders — who represented Holmes — are not required to disclose what they spend on a case. Doing so, they say, would violate ethics rules and subject poor defendants to lower standards of attorney-client confidentiality. Generally, the office of the state public defender reports having spent nearly $2 million on death-penalty and potential death-penalty cases since July 2002, not including staff salaries.
The theater shooting trial was one of the longest in state history. Prosecutors sought the death penalty, and Holmes, who pleaded not guilty by reason of insanity, underwent two psychiatric evaluations by state-appointed experts — at a cost of more than $600,000 to the state Department of Human Services. Holmes ultimately was found guilty of murdering 12 people and trying to murder 70 more in the July 2012 attack on the Century Aurora 16 movie theater; he was sentenced to life in prison without parole in August.
While the case prompted public debates about the cost of the death penalty and mental health evaluations, the biggest expense that has been reported was for providing victims' assistance services. The Arapahoe County district attorney's office spent nearly $1.2 million on salaries for victims' advocates, travel expenses for victims to attend the trial and other costs. All of those costs were covered by a federal grant.
Arapahoe County District Attorney George Brauchler, whose office published its close-to-final cost figures last week, said the costs were about in line with what he expected. In addition to the federal grant, the state government appropriated about $500,000 to cover trial-related costs for the district attorney's office. He said more than half of what his office spent on the case was spent before the trial even began one year ago this month, and he rejected the criticism that seeking the death penalty ballooned the trial's price tag. Instead, Brauchler said the case was expensive because of the number of victims involved.
The county DA here make a reasonable point that the nature of the crime may be the reason for the considerable expense as much as the nature of the punishment sought. Nevertheless, I believe this case could and would have cost taxpayers a whole lot less if prosecutors had accepted the defense's early offer to plead guilty in exchange for an LWOP sentence. (That LWOP sentences was ultimately achieved in the end after a lengthy and costly capital trial.) Moreover, the costs here include the opportunity costs of having so many Colorado state justice officials (police, prosecutors, judges) working on this case so intensely when there surely were many other Colorado crime and criminals that might have otherwise gotten their attention.
Of course, and I think not to be overlooked in any accounting of general capital costs/benefits, Holmes' defense team likely was only willing to offer to plead guilty and take LWOP because Colorado has capital punishment on its books. Consequently, it would be unfair to suggest abolition of the death penalty will always produce massive savings in major murder cases. But, as regular readers should know, this kind of accounting leads me to suggest, yet again, that states ought to have ways to "delegate" major murders to the feds for more efficient and effective capital prosecutions.
A few (of many) older related posts (with lots of comments):
- Largest mass shooting in US history surely to become a capital case
- Offense/offender distinctions in first-cut punishment reactions to Batman mass murder
- "For James Holmes, Death Penalty is Far from a Certainty"
- You be the prosecutor: will you accept Aurora theater shooter's plea offer and drop pursuit of the death penalty?
- Should we be concerned about the economic or human costs of Colorado's efforts to get Aurora killer James Holmes on death row?
Tuesday, April 19, 2016
"The Meaning of Life in Criminal Law"
Like many sentient beings, I have long wondered about the meaning of life. Helpfully, this new article by Eldar Haber posted to SSRN, which has the same title as the title of this post, talks throught life's meaning in the context of criminal law. Here is the abstract:
Inflation and deflation change the value of money. Policymakers have used this rationale to amend legislation fixed to a monetary value. What is not acknowledged is that increase in life expectancy could also be a form of inflation, and, accordingly, could affect “the value” of nonmonetary sanctions — chiefly, imprisonment and capital punishment. Under a utilitarian approach to criminal law, with an increase in life expectancy, nonmonetary sanctions with confined-terms reduce their deterrent value, while nonmonetary sanctions with finite-terms, inter alia, life-imprisonment without parole and capital punishment, increase their deterrent value and severity. Under a retributive approach to criminal law, changes in life expectancy also affect the magnitude of nonmonetary criminal sanctions and change the proportionality between the criminal conduct and the punishment. Nevertheless, although life expectancy in the United States has increased substantially, legislators have not adjusted nonmonetary criminal sanctions accordingly. At the least, scholars and policymakers failed to recognize the role of life expectancy in the formation of criminal sanctions. Hence, current criminal punishments have not been recalibrated properly.
This Article revisits theories of criminal punishments while offering a new perspective on determining nonmonetary criminal sanctions that recognizes life expectancy considerations. It examines the current and desirable approach toward life expectancy considerations in criminal punishment theories while reviewing statistical data on the increase of life expectancy in the United States since independence. After discussing criminal punishment theories, and evaluating the role of life expectancy considerations under them, I conclude that criminal law theories, to a great extent, support life expectancy considerations. Under both utilitarian and retributive approaches, lack of practical considerations of life expectancy in criminal punishments could lead to a misconception of criminal law theories and erode the important role played by criminal sanctions. Accordingly, this Article examines consequences of failing to apply life expectancy considerations in practice and proposes modest solutions to overcome this perceived problem.
Sunday, April 17, 2016
An interesting perspective on Virginia's recent capital experiences
Virginia made capital headlines last week after Gov. Terry McAuliffe altered a bill passed by the state's legislature calling for use of the electric chair if the state could not obtain need lethal drugs. The headline of this Washington Post piece from last week explains his proposed alternative approach: "In a move that could jeopardize executions, McAuliffe wants to shield the identity of makers of lethal-injection drugs."
Meanwhile, this new commentary by Kerry Dougherty, a columnist for The Virginian-Pilot, provides some perspective on this execution method brouhaha and Virginia's recent experience with the death penalty. The piece is headlined "Lost in all the death-penalty drug talk is that there are only 7 men on death row in Virginia," and here are excerpts:
Last winter, state legislators came up with a solution: They said that if drugs are unavailable, the commonwealth should fire up Old Sparky. Predictably, this sparked a heated debate among politicians. Some argued that the electric chair is cruel.
Others shrugged, saying painless deaths are not the goal of the state. “I hear, ‘Oh my Lord, he might have to suffer,’ ” said the Senate’s Democratic leader, Richard Saslaw in March. “… If we don’t have the necessary drugs, then we need this bill. When you commit acts like that, you give up your right, as far as I’m concerned, to say, ‘Well, I want to die humanely.’ ”
The governor seems to disagree. “We take human beings, we strap them into a chair, and then we flood their bodies with 1,800 volts of electricity, subjecting them to unspeakable pain until they die,” McAuliffe said last week, according to news reports. “Virginia citizens do not want their commonwealth to revert back to a past when excessively inhumane punishments were committed in their name.”
McAuliffe’s language calls for the state to buy the drugs needed to put prisoners to sleep from special pharmacies. The names of those companies would be cloaked in secrecy, as they are in some other states. “All I’m doing today is providing a humane way to carry out capital punishment here in Virginia so we have options,” McAuliffe said. “If they do not take it up, I want to be clear, they will be ending capital punishment here in Virginia.”
Now the question becomes, should the people’s business be conducted covertly? I can answer that: No, it shouldn’t.
Lost in all this talk about how to kill the last men on Virginia’s death row is the happy fact that there are just seven men living there. Seven. According to an NBC news report, Virginia’s death row was at its most crowded in 1995 when it housed 57 condemned prisoners. Both executions and death sentences have dropped sharply since then.
The ultimate penalty is imposed on those who commit the most heinous crimes. Last year, for instance, Virginia executed one man: The loathsome Alfredo Prieto. He killed a young couple in Fairfax in 1988, raping one of the victims as she died. The Washington Post reported that he had killed as many as seven others. One of those murders was of a 15-year-old in California while he was on the run after the double homicide in Fairfax.
I couldn’t gin up any sympathy for this predator. Neither could the governor, who refused to block his execution in October. Yet Prieto was the first man executed in the Old Dominion in more than two years.
Why all the empty cells on death row? Many reasons. But one component is certainly 1995’s “truth-in-sentencing” law pushed by then-Gov. George Allen. The measure abolished parole and closed the revolving doors on Virginia’s prisons. Suddenly a 10-year sentence meant the convict would spend most of a decade in prison. And a life sentence? It actually meant life in prison.
Given this ironclad alternative to execution, it’s become rare for a Virginia jury — or judge — to send a convict to death row. Before we get back to arguing about the death penalty, can’t we all agree that’s a good thing?
"Colorado 8th-graders caught sexting could have to register as sex offenders"
The title of this post is the headline of this notable press report which helps highlight why so many juvenile justice advocates are so concerned about the broad reach of modern sex offender laws and registries. Here are the details:
Three Colorado middle and high schools were rocked by a string of recent underage sexting scandals, prompting police investigations. If charged, the teens involved in the case — some as young as eighth-graders — could face charges of child pornography, which would require them to register as sex offenders if convicted.
The stiff penalties for sexting has sparked a debate in Colorado and other state assemblies over whether misbehaving teens should face the same punishment as child pornographers. But efforts by the Colorado Legislature to lighten the penalties have stalled.
In the sexting case at Bear Creek, a K-8 school in Lakewood, the five students involved were in eighth grade. School leaders turned to the local police after discovering that nude photos were being circulated, The Denver Post reported. Meanwhile, Colorado Springs police were contacted last Wednesday about allegations that a partially nude photo was shared among a circle of students from two other Colorado schools, Pine Creek High School and Challenger Middle School, according to KRDO news.
At this point, no charges have been filed in any of the cases, but the Pine Creek and Challenger school cases have been handed over to the Fourth Judicial District Attorney’s Office. The juveniles involved could be hit with a felony sex offender charge.
Penalties for underage sexting vary from state to state. In Colorado, minors caught trading nude photos are legally susceptible to harsh child pornography charges. It’s one reason why the Legislature has been working toward a solution to reduce possible sentencing for teens who sext. The latest bill to reach the Legislature would reduce charges for minors to a misdemeanor, echoing the laws of 11 other states. But a vote on the Colorado measure stalled in a House committee last week. Lawmakers against the measure were primarily concerned that, while it would be good to reduce potential child pornography charges for sexters, the bill was still too harsh on kids sending nude images.
State Representative Yeulin Willet, who cosponsored the bill, says that the misdemeanor charge did not go too far. He argued that the juvenile petty offense that the bill introduced accounts legally for "virtually no crime at all" and "basically just takes that juvenile into some counseling or education, end of story."... "To say that this is a victimless situation is just not a fact," he said. "These images get stolen, hacked, now they end up in the hands of thousands or more via digital media, and now you have a suicidal young girl."
But Jennifer Eyl, director of family stability programs at the Rocky Mountain Children’s Law Center, says that even the misdemeanor charge was too harsh. It criminalized the behavior of sexting itself, even consensual sexual behavior between teens, she said, rather than targeting the issue of non-consensual spreading of nude images. "It’s really kind of this blanket prevention of sexting, which, we work with kids, we just know that that’s not going to happen. Sexting is part of 21st-century communication between teenagers," she said. Eyl also expressed concerns that the most vulnerable children — in the foster system or without strong parental involvement — were particularly susceptible to blanket charges because foster parents might be more inclined to involve police should they find nude photos.
A few prior related posts:
- The many fascinating legal and social issues swirling around "sexting"
- Should sexting lead to sex offender registration?
- "Sex, Cells, and SORNA: Applying Sex Offender Registration Laws to Sexting Cases"
- Third Circuit upholds bar on sexting prosecution threatened by state DA
- "Student's Privacy Rights Violated in Pa. 'Sexting' Case, ACLU Suit Says"
- "Sexting or Self-Produced Child Pornography?"
- New York Times reviews juve problems with modern sex-offender laws
- "Don’t Just Get Kids Off the Sex Offender Registry. Abolish It"
April 17, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (8)
Saturday, April 16, 2016
Privacy gurus: what do you think of (coercive?) plea discussions requiring disclosure of defendant's iPhone password?
I have had the great pleasure of working through the years with a number of super-smart privacy-tech scholars (see here and here). I am very interested to hear what these folks and others think of this fascinating new story from an NYC federal district court. The story is headlined "Meth, kiddie porn-dealing dentist has two weeks to give up iPhone password if he wants shot at plea deal, judge says," and here are the interesting details:
A Manhattan dentist charged with distributing methamphetamines and child pornography has two weeks to decide whether he will disclose to the government the password to his locked iPhone so the FBI can examine the creepy contents, a federal judge said Friday.
Dr. John Wolf has been trying to cut a plea deal with the Brooklyn U.S. Attorney's office, but prosecutors haven't offered a plea agreement until it can be determined whether there is additional criminal evidence on the iPhone. Assistant U.S. Attorney Moira Penza said the iPhone is password protected and the FBI has been trying to unlock the device without asking a judge to order Apple to assist the government.
"We've been considering the possibility that we will just give them the password," defense lawyer Marc Agnifilo told Federal Judge William Kuntz....
Kuntz said he wanted to set a deadline in case there is no agreement. "I don't have to tell you this is a very complicated, contentious issue," Kuntz said Friday. Wolf allegedly traded meth with a drug dealer for dental services, but also had a trove of child porn which he gave to an undercover FBI agent who posed as a pervert. Wolf's lawyer said his client was addicted to meth before he was arrested.
"The history of drug criminalization in America is a history of social panics rooted in racism and xenophobia"
The title of this post is the subheadline of this new Salon comentary carrying the primary headline "The real reason cocaine, heroin and marijuana are illegal has nothing to do with addiction." Here is how the lengthy piece gets started:
Looking out at the trail of devastation and death that the heroin epidemic has left in its wake, it’s hard to imagine that not long ago one could purchase the drug from a Sears catalogue. Heroin was created by German chemists during the late 1890s and marketed through Bayer, the company best known for selling aspirin. For decades, suburban housewives could peruse pages of flashy advertisements for Bayer Heroin, the cure for sore throats, coughs, headaches, diarrhea, stress and menopause. In fact, until recently the percentage of Americans using opium-derived medicine was higher at the turn of the 20th century than at any other time in history.
The majority of illicit drugs we see today were once legal, popular and used for medicinal purposes. Cocaine made its debut in toothache drops marketed to children. Cannabis was recognized for its ability to relieve pain and nausea long before it became associated with youthful vagrancy.
As the world grapples with the fallout from the War on Drugs — and heads towards UNGASS 2016, a possible opportunity to put things right — it’s important to know the history of these drugs and their journey from medicine to menace. We didn’t suddenly discover that they were far more addictive or dangerous than other medicines. In fact, the reasons that drugs like heroin, cocaine, marijuana and others are illegal today have far more to do with economics and cultural prejudice than with addiction.
Heroin was the first to fall from pharmaceutical darling to a demonized, black-market street drug. Long used as a cure for aches and pains, it wasn’t until Chinese immigrants came to the United States to work on the railroads and mines that opium-based products such as heroin were perceived as dangerous. American settlers were not happy with the Chinese arrivals, who brought with them a cultural tradition of smoking opium for relaxation in the evenings. The settlers accused the Chinese of “taking our jobs,” and economic resentment morphed into rumors of Chinese men luring white women into opium dens and getting them addicted. Rumors turned to fear, which turned to hysteria, which politicians seized upon. In 1875 California passed the first anti-opium law, enforced by raids on Chinese opium dens. Other states soon followed. The first federal law regulating heroin was the Harrison Act of 1914, which eventually led to its criminalization.
Cocaine was criminalized for similar reasons, only this time the backlash was directed against black Americans. After the Civil War, economic resentment simmered over the freed slaves gaining a foothold in the economy. White Southerners grumbled about black men “forgetting their place,” and fears spread about a drug some of them smoked, which was rumored to incite them to violence. In the early 1900s New Orleans became the first city to slap down laws against cocaine use and the trend quickly spread, dovetailing with efforts in Latin America to criminalize the coca leaf, an ingredient in cocaine, which was used for religious purposes among indigenous populations.
Marijuana was next in the firing line. During the 1920s, tensions sprang up in the South over the influx of Mexican immigrants who worked for low wages. By the 1930s, the Great Depression had bred panic among people desperate for work and they directed their angst towards immigrants. The media began propagating stories about Mexicans and their mysterious drug, marijuana. The first national law criminalizing marijuana, the Marihuana Tax Act of 1937, passed thanks to a strong push from Harry Anslinger, head of the Federal Bureau of Narcotics, who referred to marijuana as “the most violence-causing drug in the history of mankind.”
While such claims of marijuana inducing violence may sound ridiculous to those of us who know marijuana as a drug that does precisely the opposite, it goes to show that the criminalization of drugs has little to do with relative risk or danger. Instead, the main impetus for criminalization is fear over certain groups seen as an economic or cultural threat to established America. Recognizing this fact does not mean ignoring or minimizing the very real harm that drugs can cause.
Most illicit drugs carry risks and serious potential for problematic use. But so does glue. So do gasoline, cough syrup, shoe polish, paint thinner, nail polish remover, cleaning fluids, spray paint, whipped cream cans, vanilla extract, mouthwash, nutmeg, prescription pills and countless other household items that are not only addictive, but potentially fatal if misused.
Friday, April 15, 2016
Making in Oklahoma the modern "conservative appeal against death penalty"
Richard Viguerie has this notable new commentary in an Oklahoma paper headlined "A conservative appeal against death penalty." Here are excerpts:
This election year, Republican and Democratic voters in records numbers agree on something: They distrust political leaders and the political establishment. That same distrust applies to ambitious prosecutors, who are part of the political establishment. Too many have been caught cheating to win convictions, withholding exculpatory evidence and using coerced confessions.
The bipartisan distrust of the political establishment is certainly increasing with regard to the death penalty. The government's troubling track record of exercising its life-ending authority provides ample reason for concern. Since 1973, more than 155 people have been released from death row because they were wrongfully convicted. Ten were from Oklahoma. As an anti-abortion, pro-law enforcement conservative who believes in the sanctity of life and society's duty to protect the innocent, I find this unacceptable.
Oklahoma's well-documented wrongful convictions and failure to adhere to established execution protocols have shown that it cannot be trusted with properly carrying out the solemn responsibility of executing inmates. Oklahoma officials might soon compound these known problems by attempting again to execute Richard Glossip, a man who may well be innocent....
Conservatives are the leaders against government abuse and lawlessness. We understand that government can be callous about its errors, which are costly and cause harm to the innocent. When government tries to execute a man who may well be innocent, I believe we have an even higher calling to speak out.
Oklahoma's systemic failures and Glossip's case in particular are emblematic of what is wrong with America's death penalty. The death penalty's problems are a confluence of things that all Americans loathe: a big, broken, costly and dangerous government program prone to mistakes, and with questionable positive benefits.
It was recently announced that a bipartisan group of eminent Oklahomans would be donating their time to a first-of-its-kind review of the Oklahoma death penalty system. I urge all Oklahomans, and especially conservatives, to support the call for a moratorium on the Oklahoma death penalty until this commission has finished its task and made its recommendations.
The death penalty system, where errors are gravest, is prone to flaws and lawlessness like any other government program.
Recent prior related post:
- Oklahoma creates Death Penalty Review Commission full of prominent folks .... which will likely achieve ....?
Thursday, April 14, 2016
Could and should past concussions be a significant mitigator at federal sentencing of white-collar offender?
The question in the title of this post is prompted by this interesting local article about a high-profile federal sentencing that has been postponed so that the defendant can participate in a study of the long-term symptoms of traumatic brain injury. The headline of this story is "Ex-Cleveland Brown Reggie Rucker says concussions possibly caused him to steal from nonprofits," and here are the interesting details:
Former Cleveland Browns wide receiver Reggie Rucker indicated Wednesday that he will rely on concussions that he suffered as a football player as a possible explanation for embezzling money from his non-violence groups when a judge sentences him later this year.
Rucker, 68, of Warrensville Heights is participating in a study at the National Institute of Health that is examining the long-term symptoms of traumatic brain injury — something that many current and former NFL players say they suffer from as a result of concussions.
His attorneys asked U.S. District Judge Dan Polster to delay his May 23 sentencing because Rucker has another test to undergo in June. That test that could prove useful in explaining why Rucker stole about $100,000 from the Cleveland Peacemakers Alliance and other nonprofits, attorney Jack Sammon said at a hearing Wednesday. Over objections from the U.S. Attorney's Office, Polster postponed Rucker's sentencing date until July 14.
"I want to have as much information about Mr. Rucker as I can reasonably get," the judge said.
Rucker pleaded guilty in February to wire fraud and making false statements to the FBI. Prosecutors said Rucker cut thousands of dollars in checks from his nonprofits and withdrew cash from ATMs at casinos across the country. His actions often placed his agencies in the red leaving many of his outreach worker without paychecks.
Rucker used the money to pay personal expenses, including gambling debts and his mortgage, all while making passionate pleas to the public and government agencies for money for his philanthropic endeavors, prosecutors said.
Michael Hennenberg, an attorney representing Rucker, said the former Browns player suffered seven or eight concussions that he knows of during his 13-year career. Three of those came as a result of blows that knocked him unconscious, the attorney said.
Such injuries are known to cause impulsiveness and compulsiveness, both of which may play into Rucker's crimes, Hennenberg said. "Reggie Rucker is the first person in the country to be examined to determine the full implications of his now-known significant brain injuries," Hennenberg said.
Assistant U.S. Attorney Adam Hollingsworth objected to postponing the sentencing, in part because Rucker has already submitted past medical records that point to possible brain injuries. He also noted that doctors have said a definitive traumatic brain injury diagnosis is not possible until a person dies and an autopsy is performed....
Under a plea agreement he reached with prosecutors, Rucker faces a prison sentence of between 21 and 27 months. He enrolled in the Ohio Casino Control Commission's lifetime irrevocable exclusion program in March, meaning he can no longer legally gamble at casinos in the state. "Mr. Rucker's actions to defraud charitable organizations and line his pockets were conscious decisions on his part, and he will be held accountable for those actions," Mike Tobin, a spokesman for the U.S. Attorney's Office, said in a statement Wednesday.
The guilty plea cemented a fall from grace for Rucker, a beloved football player who made a name for himself by heading organizations that encourage non-violent responses to disputes between Cleveland residents.
Despite the brain injury discussions, Hennenberg stressed that Rucker has accepted responsibility for his actions. He released a document the former football player gave to the U.S. Probation Office on Friday that will be used when the office makes its sentencing recommendation. "I have learned and continue to learn many valuable life lessons as a result of my wrongful conduct that brought me into the criminal justice system," Rucker's written statement reads.
"Costs of Pretrial Detention"
The title of this post is the title of this notable new piece authored by Shima Baradaran Baughman now available via SSRN. Here is the abstract:
Spending on U.S. incarceration has increased dramatically over the last several decades. Much of this cost is on incarcerating pretrial detainees — inmates not convicted of a crime — which constitute the majority of individuals in our nation’s jails.
Current statutory schemes give judges almost complete discretion to order pretrial detention based on unexplained or unidentified factors. With this discretion, judges tend to make inconsistent decisions in every jurisdiction, some releasing almost all defendants — including the most dangerous — and others detaining most defendants — even those who are safe to release. There are constitutional and moral reasons to evaluate our current detention scheme, but even the fiscal impact of pretrial detention alone calls for an empirical analysis.
Although legal scholarship has applied cost-benefit analysis to other areas of criminal law, this Article is the first attempt at conducting such analysis in the pretrial arena. This Article compares the risk posed by each defendant and the cost of any crimes they may potentially commit while released with the costs incurred by detaining these defendants. The results show that relying on the cost-benefit model provided here, judges could bring significant savings — approximately $78 Billion, increased safety, and potentially more equitable pretrial detention decisions.
Wednesday, April 13, 2016
Important drug offender data begging hard normative policy question regarding noncitizen US prisoners
I just came across this interesting posting and data analysis via NumbersUSA, a group that describes itself as "moderates, conservatives & liberals working for immigration numbers that serve America's finest goals." The posting is titled "Sentencing Reform Legislation Would Disproportionately Favor Non-Citizens," and here are some excerpts (with one very critical line emphasized by me toward the end of this excerpt):
U.S. prisoner data clearly shows two things. One, the majority of low-level drug offenders are serving their sentences in state, not federal prisons. Two, most of those incarcerated in federal prison for drug charges are non-citizens....
[Only] 3.6 percent of all prisoners, or 48,600, under state jurisdiction are serving time for drug possession. The remaining drug offenders were convicted for trafficking and other related offenses, such as facilitating the illicit drug trade. The distribution of drug prisoners in state prisons is fairly evenly divided among Whites, Blacks, and Hispanics. A higher proportion of females (24%) than males (15%) are incarcerated for drugs in state prisons.
As of April 7, 2016, there were 196,285 prisoners in the custody of the Federal Bureau of Prisons, with 46.5 percent of these prisoners, (91,270) sentenced for drug offenses. The percentage of prisoners incarcerated for drugs is just over two and half times greater than the state prison population. However, overall, there are fewer prisoners serving time in federal prison for drug charges than in state prisons (212,000).
The Federal government collects data differently for state and federal prisoners. In order to get the breakdown of offenses for federal drug prisoners, data from the U.S Sentencing Commission is available. Looking at sentencing statistics from FY2007 to FY2015, a clear distinction between federal and state prison populations is that the proportion of federal prisoners serving time for drug possession is much higher than for state prisoners, and Hispanics are disproportionately represented among federal drug inmates.
There is a higher ratio of Hispanics serving drug sentences for both trafficking and possession convictions in federal prisons. As Daniel Horowitz pointed out, this is because many of the drug offenders in federal prison are serving sentences for drug convictions related to the illicit drug trade on the U.S.-Mexico border.
In response to a congressional request regarding sentencing data for federal drug offenses, the U.S. Sentencing Commission sent data showing that 95% of the 305 individuals serving time in federal prison for simple drug offenses are non-citizens and 95.7 % were sentenced in southwest border districts — virtually all of them in Arizona. Furthermore, 95.7 % of the simple possession drug crimes for which offenders are incarcerated involved marijuana and the median weight of the drug involved in cases from border districts was 22,000 grams (approximately 48 pounds). Only 13 simple possession cases were tried in non-border districts in FY 2014.
In a letter sent to Sen. Jeff Sessions last fall, the Federal Bureau of Prisons reported that 77% of individuals convicted of federal drug possession charges and more than 25% of individuals convicted of federal drug trafficking charges in FY2015 were non-citizen.
The profile for federal drug prisoners is different than at the state level, and this is why Congress needs to recognize and address these differences when crafting legislation that will effect this population. Federal drug and immigration enforcement are for now inextricably tied together....
Sentencing reform bills reducing penalties for some federal prisoners (S. 2123 and H.R. 3713) are being portrayed by their supporters as a long overdue corrective to harsh sentencing laws for individuals who violate federal drug laws, which they argue create racial disparities in the nation’s prison population.
Reforming drug sentencing laws is one thing. Releasing criminal aliens back into U.S. interior, is quite another. The Obama Administration has already shown its willingness to do the latter, including those who were deemed to be criminal threats to the public. Without a bill with strong, clear language and, most importantly, a Congress willing to extend oversight over the executive branch, it is plain that the sentencing reform legislation likely to soon come before Congress will accomplish little more than to provide an early release for dangerous criminal aliens, while still failing to hold President Obama to account for his failure to enforce U.S. immigration law.
This data discussion is a bit confusing because of its many references to both federal and state prisoners and both trafficking and possession offense and both percentages and absolute numbers. But, data particulars and confusions aside, the piece rightly highlights a very important data reality integral to any sophisticated discussion of efforts to reduce the federal prison population, especially for drug offenses: a significant percentage (and thus a large total number) of imprisoned and future federal drug offenders who would benefit from federal sentencing reform (perhaps up to 35% or even higher) would be noncitizens.
It understandable that persons deeply concerned about illegal immigration, and likely eager for policy changes always to prioritize benefits to US citizens over noncitizens, would find troublesome the statistical reality that federal sentencing reforms would benefit noncitizens significantly. However, this perspective may change if one realizes that noncitizen serious federal drug offenders who would get reduced sentences under any proposed sentencing reform would not get released "back into the US interior." Rather, any and every noncitizen serious federal drug offender who gets a reduced sentence is always going to be subject to immediate deportation once release from prison.
The important reality the many imprisoned and future noncitizen federal drug offenders are all to be deported after serving their federal prison sentences raises the hard normative policy question that is begged in any discussion of this data. That question is: What normative policy goal are we really achieving — other than spending billions of federal taxpayer dollars to house, feed and provide medical care to criminal noncitizens — by having noncitizens serve extra long federal prison terms if they are all to be deported at the end of these their terms no matter what?
Bill Otis and many others opposing proposed federal reforms are quick to stress the risk of increased domestic crime if we reduce current and future federal sentences and thereby release former offenders back into US communities sooner. But that argument really does not hold up when we are talking about noncitizen offenders who will be forcibly deported to another nation after finishing whatever length of sentence they serve at federal taxpayer expense. (Indeed, I suspect imprisoning noncitizens in the US for long terms actually leads criminal noncitizens to become ever-more connected to US citizens and makes them even more likely to seek illegal return to the US after they are deported).
April 13, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (33)
Tuesday, April 12, 2016
Ninth Circuit talks through requirements for Miller resentencing a decade after mandatory LWOP
The Ninth Circuit yesterday issued an interesting opinion faulting a district court for how it limited the evidence it considered and other problems with how it conducted a resentencing of a juvenile murderer given a mandatory LWOP sentence a decade before such a sentences was deemed unconstitutional by the Surpeme Court. Miller fan will want to read US v. Pete, No. 14-103 (9th Cir. April 11, 2016) (available here), in full, and here is how the opinion starts and along with some key passages from the heart of its analysis:
Branden Pete was 16 years old when he committed a crime that resulted in a mandatory sentence of life without the possibility of parole. Later, Miller v. Alabama, 132 S. Ct. 2455 (2012), held unconstitutional for juvenile offenders mandatory terms of life imprisonment without the possibility of parole. On resentencing, the district court refused to appoint a neuropsychological expert pursuant to 18 U.S.C. § 3006A(e) to help Pete develop mitigating evidence.
Our principal question on appeal is whether the district court abused its discretion in declining to appoint such an expert to aid the defense. We conclude that it did, and so remand for appointment of an expert, and for resentencing after considering any expert evidence offered. We also consider, and reject, Pete’s other challenges to his resentencing....
In rejecting the motion to appoint an expert, the district court ... noted that Pete’s upbringing and the circumstances of the crime have not changed, and maintained that because a psychiatric evaluation had been done in 2003, a second evaluation would be “duplicative.” “[I]t is difficult to conceive how,” the district court stated, “the passage of time may impact [the psychiatric] evidence” presented during the pretrial proceedings nearly ten years before. Further, the district court held that the impact of incarceration on Pete “is not the type of mitigating evidence which Miller contemplates.” We disagree with the district court as to all three aspects of its reasoning....
When the district court ruled that no expert testimony was “necessary,” it ignored Miller’s reasoning and directives. At the time of resentencing, Pete’s neuropsychological condition had not been evaluated in more than a decade. An updated evaluation could have revealed whether Pete was the same person psychologically and behaviorally as he was when he was 16. Rather than being “duplicative,” as the district court believed, a new evaluation could have shown whether the youthful characteristics that contributed to Pete’s crime had dissipated with time, or whether, instead, Pete is the “rare juvenile offender whose crime reflects irreparable corruption.” Id. at 2469 (citation omitted); see also Montgomery, 136 S. Ct. at 733. Similarly, without current information relating to the policy rationales applicable specifically to juvenile offenders, Pete was hamstrung in arguing for a more lenient sentence.
More specifically, the significant mitigating evidence available to Pete at resentencing, other than his own testimony and that of his lawyer (neither of which the district court credited), would have been information about his current mental state — in particular, whether and to what extent he had changed since committing the offenses as a juvenile. This information was directly related to Pete’s prospects for rehabilitation, including whether he continued to be a danger to the community, and therefore whether the sentence imposed was “sufficient, but not greater than necessary, to comply with the purposes” of sentencing. 18 U.S.C. § 3553(a); see id. (a)(2)(C), (D). Such information is pertinent to determining whether, as Miller indicates is often the case, Pete’s psychological makeup and prospects for behavior control had improved as he matured, with the consequence that his prospects for rehabilitation and the need for incapacitation had changed.
April 12, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2)
"Accounting for Prosecutors"
The title of this post is the title of this interesting looking new paper by Daniel Richman now available via SSRN. Here is the abstract:
What role should prosecutors play in promoting citizenship within a liberal democracy? And how can a liberal democracy hold its prosecutors accountable for playing that role? Particularly since I’d like to speak in transnational terms, peeling off a distinctive set of potential “prosecutorial” contributions to democracy — as opposed to those made by other criminal justice institutions — is a challenge. Holding others — not just citizens but other institutions – to account is at the core of what prosecutors do. As gatekeepers to the adjudicatory process, prosecutors shape what charges are brought and against whom, and will (if allowed to) become shapers of citizenship. They also can can promote police compliance with legal and democratic norms. Because the prosecutorial role in case creation is largest when crimes are not open and notorious, prosecutors can also play an outsized role in the bringing of cases that target instances of illegitimate subordination (including domestic violence) and corruption that are antithetical to a liberal democracy.
After considering ways in which prosecutors might promote democratic values, I explore (quite tentatively) how prosecutors can be held to account. Working from existing practices and structures, I consider how we might promote their potential contributions through legal and institutional design with respect to reason-giving obligations; geographic scale; insulation from direct political influence, and modulation of their message.
Interesting alternative sentencing being used in Thailand for drunk drivers
Regular readers know that I have long viewed drunk driving as a much-too-common, potentially-deadly offense that I fear is not regularly punished appropriately to best reduce recidivism and the extraordinary harms to public safety and property that this offense too often produces. Consequently, I was intrigued to see this new article about a new kind of sentencing being tried for this offense in the Land of Smiles. The piece is headlined "Thai drunk drivers to do morgue work in 'shock sentencing' strategy," and here are the details:
Drunk-drivers in Thailand will be sentenced to community service in morgues in an attempt to combat the world’s second highest road death rate. The plan to confront offenders with the risks of their actions in starkly morbid fashion was unveiled as the country embarked on its most dangerous time on the roads – the Thai new year holidays.
In a country with a notoriously poor road safety record, the ruling junta hopes the initiative will drive home the message that drink driving and reckless driving is lethal. "Traffic offenders who are found guilty by courts will be sent to do public service work at morgues in hospitals," said Police Col Kriangdej Jantarawong, deputy director of the Special Task Planning Division.
"It is a strategy used to make traffic offenders afraid of driving recklessly and driving while they are drunk because they could end up in the same condition. It is aimed to be a deterrent, a way to discourage people."
The “shock sentencing” strategy was approved by the Cabinet as the kingdom prepared for the extended Songkran new year festivities that formally begin on Wednesday. There is much higher traffic than normal as millions return to their home villages, while the festivities are also marked by heavy consumption of alcohol, including by drivers. Nominal helmet laws for motorcyclists are widely flouted.
The combination means the celebrations are accompanied by carnage on the roads each year. The government’s safety campaign bluntly refers to the holiday week as “The Seven Days of Danger”. The death toll has been increasing in recent years, despite government crackdowns and awareness campaigns. The authorities have also said that they will immediately impound the cars of motorists driving under the influence.
"We originally had community services at hospital wards (for offenders)," said Nontajit Netpukkana, a senior official at the department of probation. "But we think the intensity that comes from working in a morgue will help give those doing community service a clearer picture of what happens after accidents caused by drink driving.”
Monday, April 11, 2016
"The Battle Against Prison for Kids"
The title of this post is the headline of this new article from The Nation. The piece's subtitle is "We’re feeding children into a system that breaks them," and here is how it gets started:
For as long as youth prisons have existed in the United States, so too has the pretense that there are no youth prisons. Early 19th-century reformers who sought to remove children from the harsh adult penal system established new institutions specifically for the detention of youths. They didn’t call them prisons, but Houses of Refuge, dedicated to the discipline and reform of newly coined group, “juvenile delinquents.” Founded with ostensibly laudable intent, the institutions were overcrowded fortresses, riddled with abuse, serving to institutionalize strict social control over poor and immigrant communities. That is, they were prisons.
And so began the unending march of euphemisms, in which children’s prisons have been known by any other name — residential treatment facilities, youth camps, youth-development centers, to name a few — exposing juveniles to many the same cruelties and racial discriminations of the adult prison system. In the two centuries since its formal birth, the juvenile-justice system has changed radically, while youth prisons have hardly changed at all. It’s as if the clock on reform stopped in the turn-of-the-century Progressive Era and has only recently started shakily ticking again.
Last year, before the election spectacle swallowed the news cycle whole, juvenile-justice reform made headlines as a keystone in President Obama’s legacy-construction efforts. Overdue political action from state houses has gained serious ground in removing youths from adult prisons. On any given day, 10,000 juveniles are housed in adult facilities, where they are five times more likely to be sexually assaulted than in juvenile institutions (a monstrous statistic, especially considering the prevalence of sexual abuse in youth facilities). The necessity of getting kids out of our shameful adult system cannot be overstated. It’s a limited achievement, though. And even as more and more youth prisons close, we must be vigilant against “alternatives” that press the same oppressive, discriminatory stigmas of criminality and delinquency onto kids outside prison walls.
New Orleans judge threatening to turn public defender funding crisis into a public safety problem
This local article from the Big Easy reports on notable efforts by a local judge to make sure it is no longer easy for public officials to ignore the problem of inadequate funding of public defenders to represent indigent criminal defendants. The article is headlined "New Orleans judge orders release of seven inmates charged with serious felonies because of lack of money for defense, but men will remain jailed pending an appeal," and here are the basic details:
In a potentially blockbuster ruling, an Orleans Parish judge on Friday ordered seven indigent inmates released from jail because of a lack of state money for attorneys to represent them amid a squeeze on public defense funding in New Orleans and across Louisiana.
However, Criminal District Court Judge Arthur Hunter stayed his order, which also included a suspension of the men’s prosecutions, pending an appeal from District Attorney Leon Cannizzaro’s office. Assistant District Attorney David Pipes told Hunter an appeal is coming, and Hunter gave him 10 days. The seven men will remain behind bars pending the outcome of that appeal.
All of them face serious felony charges — including murder, armed robbery and aggravated rape — and all have been deemed indigent. Most have spent more than a year behind bars, going months without legal help on their cases, attorneys said.
Hunter ruled that the lack of state funding for the seven men’s defense violated their Sixth Amendment rights and that the resulting uncertainty on when their cases might move forward warrants their release. “The defendants’ constitutional rights are not contingent on budget demands, waiting lists and the failure of the Legislature to adequately fund indigent defense,” Hunter wrote in his 11-page ruling, portions of which he read from the bench.
“We are now faced with a fundamental question, not only in New Orleans but across Louisiana: What kind of criminal justice system do we want? One based on fairness or injustice, equality or prejudice, efficiency or chaos, right or wrong?”
A spokesman for Cannizzaro’s office said the district attorney “believes that releasing defendants charged with serious acts of violence poses a clear and present danger to public safety, and he intends to appeal the ruling.” Spokesman Christopher Bowman added, “It appears that the judge’s ruling declares that a legislative act — namely the most recent budget — violates the Louisiana Constitution.”
Tulane Law School professor Pam Metzger, who is representing all seven in their bid for release, said she was “thrilled that the judge appreciates the extraordinary constitutional obligations of providing poor people with counsel and due process of law.” She said she was disappointed that Hunter stayed his ruling but that attorneys would continue pressing to free the men.
In addition to Metzger, each of the men has an attorney appointed by Hunter. But in his ruling, Hunter said the appointment of private attorneys without any state money available for early witness and defendant interviews, filing motions and strategizing “makes a mockery of the Sixth Amendment right to the effective assistance of counsel.”
Hunter was following directions laid out in a 2005 Louisiana Supreme Court decision on when judges can halt prosecutions because of a lack of adequate indigent defense funds. The court said a judge can stop a case “until he or she determines that appropriate funding is likely to be available.” The “absence of a date certain” when that money will come, Hunter found, also violates the right to due process guaranteed in the 14th Amendment to the U.S. Constitution, as well as the Louisiana Constitution’s edict for the Legislature to “provide for a uniform system for securing and compensating qualified counsel for indigents.”...
Chief Public Defender Derwyn Bunton’s office had turned away the seven cases, citing a severe budget shortfall, bloated workloads and the loss of several experienced attorneys in his office.
Hunter, who has taken drastic measures during past funding shortfalls at the Public Defenders Office — he ordered the release of several inmates after Hurricane Katrina — doled out the seven men’s cases to private attorneys, who promptly sought a halt to the prosecutions and the men’s release. They said they can’t do any work on the cases unless they get money to pay for investigators and other expenses.
Hunter’s ruling came after a series of hearings in his courtroom that began in November with testimony from Bunton and Jay Dixon, who heads the Louisiana Public Defender Board, among others. They testified that indigent defense in Louisiana is facing a crisis because of a system in which local offices are funded largely through fines and fees leveled on criminal defendants, mostly for traffic violations. Those revenues have slid steadily over the past several years, in some parishes more than others. All told, almost a dozen district public defenders across the state have instituted austerity programs.
In New Orleans, that has meant a hiring freeze since last summer and, beginning in January, a refusal by Bunton’s office to accept appointments in serious felony cases — now at 110 and counting — because of a lack of experienced attorneys to handle them, according to Bunton. “Obviously, the charges involved in these cases are really serious, so I do think folks should be concerned about public safety,” Bunton said Friday. “We wouldn’t need to be in this position if (the state) provided the resources that are necessary under the constitution. You can only prosecute as fast as you can defend, and if you can’t defend, you can’t prosecute.”...
The defenders’ funding troubles may be getting even worse. In Baton Rouge, lawmakers grappling with the state’s deep budget morass have threatened deep cuts in the $33 million in annual state funding that has supplemented local revenue, making up about a third of the overall funding for indigent defense across the state. The Louisiana Supreme Court has in the past endorsed a halt to prosecutions until adequate funding becomes available. But it has stopped short of ordering action by the Legislature.
At a recent hearing, Metzger described an “abject state of financial crisis. There is no money to fund these defenses. ... The cause of the delay rests entirely with the state. The Legislature has been on notice not simply for weeks or months or years but for decades.”
In a legal filing last week, however, Cannizzaro’s office described the private attorneys seeking to be relieved from the cases as bent on “nothing less than anarchy” by pressing for the defendants’ release and a halt to their prosecutions, while “hoping for a paycheck” at the expense of justice. “They are seeking to bring down a system they disagree with rather than protecting the rights of those individuals this court has appointed them to represent,” Pipes wrote.
A statement from Mayor Mitch Landrieu called Hunter’s ruling “a miscarriage of justice on all sides” and urged the judge “for the sake of the victims and their families” to “reconsider putting alleged murderers back on the streets, like Darrian Franklin.”
“The state needs to live up to its obligation by fully funding the public defender, and the judge should continue to work on getting the State to appropriately fund its responsibilities,” the statement read.
Thursday, April 07, 2016
"Reconceptualizing the Eighth Amendment: Slaves, Prisoners, and 'Cruel and Unusual' Punishment"
The title of this post is the title of this interesting new article by Alex Reinert now available via SSRN. Here is the abstract:
The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination. In particular, I argue that the phrase “cruel and unusual punishment” was intertwined with pre- and post-Revolutionary notions of the permissible limits on the treatment of slaves.
The same standard that the Framers adopted for the treatment of prisoners in 1787 was contemporaneously emerging as the standard for holding slaveholders and others criminally and civilly liable for harsh treatment of slaves. Indeed, by the middle of the nineteenth century, constitutional law, positive law, and common law converged to regulate the treatment of prisoners and slaves under the same “cruel and unusual” rubric. Thus, when the Supreme Court of Virginia referred to prisoners in 1871 as “slaves of the State,” the description had more than rhetorical force.
Going beyond the superficial similarity in legal standards, examining how the “cruel and unusual” standard was explicated in the context of slavery offers important insights to current debates within the Eighth Amendment. First, the contention by some originalists that the Punishments Clause does not encompass a proportionality principle is in tension with how courts interpreted the same language in the context of slavery. Indeed, relationships of subordination had long been formally governed by a principle of proportional and moderate “correction,” even though slavery in practice was characterized by extreme abuse. Second, to the extent that dynamic constitutional interpretation supports limiting criminal punishment according to “evolving standards of decency,” the comparative law frame used here raises questions as to how far our standards have evolved. This, in turn, should cause commentators and jurists to reconsider whether the twenty-first century lines we have drawn to regulate the constitutional bounds of punishment are adequate to advance the principle of basic human dignity that is thought to be at the heart of the Eighth Amendment.
Wednesday, April 06, 2016
The title of this post is the title of this timely new piece by William Berry now available via SSRN. Here is the abstract:
When the Court interprets the Constitution to accord a new right to criminal offenders, the question quickly becomes which prisoners might benefit from the new rule. The current retroactivity doctrine relies on a confusing substance-procedure dichotomy. Drawn from Teague v. Lane, this test often results in lower court splits on the retroactivity question. Just this term, the Supreme Court has already decided the question of retroactivity in one case — Montgomery v. Louisiana, and has granted certiorari in another — Welch v. United States.
This Article rejects the substance-procedure dichotomy and offers a competing theoretical frame for considering the question of retroactivity. Specifically, the Article develops the concept of “normative retroactivity,” arguing that retroactivity should relate directly to the normative impact of the new rule on previous guilt and sentencing determinations. Further, the article advances a doctrinal test for assessing normative retroactivity of new rules of criminal constitutional law that combines the normative impact of the rule with a balancing test that weighs the applicable values of fundamental fairness and equality under the law against the competing values of finality, comity, and government financial burden.
April 6, 2016 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)
Tuesday, April 05, 2016
"How Drug Warriors Helped to Fuel the Opioid Epidemic"
The title of this post is the headline of this notable new Atlantic piece. Here is how it starts and ends:
Despite almost 50 years of the drug war — a policy that creates black markets, enriches drug cartels, and fuels killing zones in scores of cities, even as it causes the United States to cage more human beings than any other democracy in the world — it remains extremely easy for Americans to acquire the most addictive, deadly drugs.
“Overdoses from heroin, prescription drugs, and opioid painkillers have overtaken car accidents to become the leading cause of injury-related deaths in America,” The Economist reports. “In 2014, they were responsible for 28,647 deaths. Between 2001 and 2014, deaths from heroin overdoses alone increased six-fold, according to the National Institute on Drug Abuse. On average, 125 people a day die from drug overdoses, 78 of them from heroin or painkillers. These numbers have been compared to deaths from HIV in the late 1980s and 1990s.”
Had the War on Drugs merely failed to prevent this epidemic, even as it destabilized numerous countries and undermined domestic liberties, it would be an abject failure. But federal drug policy has actually been worse than useless in heroin’s rise.
In a saner world, American researchers and patients would’ve spent the last several decades experimenting with marijuana to maximize its potential as a pain reliever. Pot use isn’t without health consequences, but is much less harmful than many prescription drugs. Instead, drug warriors fought to stymie marijuana research, keep pot illegal, and stigmatize medical marijuana as a dangerous fraud, even as doctors prescribed more opioid painkillers — that is, medical heroin. Many get addicted, and when the pills run out, they seek a street substitute....
“What has made it previously difficult to emphasize treatment over criminal justice,” President Obama said last month, “is that the problem was identified as poor, minority, and as a consequence, the thinking was, it's often a character flaw in those individuals who live in those communities, and it's not our problem they're being locked up. One thing that's changed in this opioid debate is that it reaches everybody. Because it's having an impact on so many people, we're seeing a bipartisan interest in addressing this problem … not just thinking in terms of criminalization or incarceration, which unfortunately has been our response to the disease of addiction."
But even today’s reformers are far too timid. The War on Drugs rages daily, and it is still a catastrophe. The catastrophe is rooted in the black markets that federal policy creates. It is exposed by the urban killing zones that those markets guarantee. It is shown to be futile by the ease of acquiring the most addictive drugs despite prohibition. And it is exacerbated by decades of efforts to prevent milder drugs from serving as substitutes. End it.
"Keeping Track: Surveillance, Control, and the Expansion of the Carceral State"
The title of this post is the title of this new article by Kathryne Young and Joan Petersilia which reviews a trio of criminal justice books. Here is the abstract:
This Review argues that an important root cause of our criminal justice ails can be found in the social processes that comprise the system’s daily activities and forms of control over individual Americans — processes largely taken for granted. To explore the ground level interpersonal interactions that underpin the criminal justice system, we engage three recent books: Pulled Over: How Police Stops Define Race and Citizenship by Professors Charles Epp, Steven Maynard-Moody, and Donald Haider-Markel; On the Run: Fugitive Life in an American City by Professor Alice Goffman; and The Eternal Criminal Record by Professor James Jacobs.
Substantively and methodologically, the books might first seem an odd trio. But together, they reveal the importance of a key phenomenon: “surveillance” in the word’s broadest sense — keeping track of people’s movements, histories, relationships, homes, and activities.
Monday, April 04, 2016
Senators Grassley and Feinstein convening hearing on whether DOJ is "Adequately Protecting the Public" from state marijuana reforms
This recent press release from US Senate's Caucus on International Narcotics Control details that this caucus has a hearing scheduled to explore how the federal government is keeping an eye on state-level marijuana reforms. (Exactly what this has to do with international control is unclear, but big-government drug warriors on both sides of the political aisle like Senators Grassley and Feinstein have never really been too keen to worry about limiting government growth in this arena.) Here are the basic details on what is prompting this hearing:
Sen. Chuck Grassley, Chairman of the Judiciary Committee and the Caucus on International Narcotics Control, and Sen. Dianne Feinstein, Co-chairman of the Caucus on International Narcotics Control, will hold a hearing entitled, “Is the Department of Justice Adequately Protecting the Public from the Impact of State Recreational Marijuana Legalization?”
In August 2013, the Obama Administration decided to effectively suspend enforcement of federal law on marijuana in states that legalized it for recreational use. But to disguise its policy as prosecutorial discretion, the Administration also announced federal priorities that it claimed would guide its enforcement going forward. These priorities include preventing marijuana from being distributed to minors, stopping the diversion of marijuana into states that haven’t legalized it, and preventing adverse public health effects from marijuana use. At the time, the Justice Department warned that if state efforts weren’t enough to protect the public, then the federal government might step up its enforcement or even challenge the state laws themselves. This put the responsibility on the Department of Justice to monitor developments in these states, develop metrics to evaluate the effectiveness of its policy, and change course if developments warranted.
But a report from the Government Accountability Office that Grassley and Feinstein requested found that the Administration doesn’t have a documented plan to monitor the effects of state legalization on any of these priorities. Moreover, according to the report, officials at the Department could not even say how they make use of any information they receive related to these priorities. Grassley and Feinstein are convening this hearing to explore this problem.
What I find most notable and disconcerting about this hearing is that it claims to be exploring whether the big federal government bureaucrats inside the Beltway at DOJ who are very far removed from direct public accountability are "protecting the public" from state reforms in Alaska and Colorado and Oregon and Washington which were enacted directly by the public through voter initiatives.
Cross posted at Marijuana Law, Policy and Reform.
Sunday, April 03, 2016
The title of this post is the title of this great-looking new paper authored by Shima Baradaran Baughman now available via SSRN. Here is the abstract:
Constitutional checks are an important part of the American justice system. The Constitution demands structural checks where it provides commensurate power. The Constitution includes several explicit checks in criminal law. Criminal defendants have the right to counsel, indictment by grand jury, trial by jury, the public or executive elects or appoints prosecutors, legislatures limit actions of police and prosecutors, and courts enforce individual constitutional rights and stop executive misconduct. However, these checks have rarely functioned as intended by the constitution and criminal law has failed to create — what I call — “subconstitutional checks” to adapt to the changes of the modern criminal state.
Subconstitutional checks are stopgaps formed in the three branches of government to effectuate the rights in the constitution when the system is stalled in dysfunction, when one branch has subjugated the others, or when two or more branches have colluded with one another. The need for sub constitutional checks is evident in the criminal arena. In the modern criminal state, plea agreements have virtually replaced jury trials, discipline and electoral competition between prosecutors is rare, separation of powers does not serve its purpose because the interests of all branches are often aligned, and individual constitutional rights have little real power to protect defendants from the state.
As a result, the lack of structural constitutional checks in criminal law has lead to constitutional dysfunction. Though never recognized as such, constitutional dysfunction in criminal law is evidenced by mass incarceration, wrongful convictions, overly harsh legislation, and an inability to stop prosecutor and police misconduct. This Article sheds light on the lack of constitutional checks by performing an external constitutional critique of the criminal justice system to explore this structural gap in the three branches and concludes that creating subconstitutional checks has the potential of reducing criminal dysfunction and creating a more balanced criminal justice system.
A more positive spin on clemency developments and more positive aspects
Regular readers may grow somewhat tired of hearing me kvetch about President Obama being much more willing to talk the talk than walk the walk when it comes to criminal justice reform generally and clemency developments in particular. For that reason (and others), I invited always sunny Lisa Rich to provide for blogging her sunny perspective on clemency events that transpired at the White House last week. Here is what she was kind enough to send my way for posting:
A somewhat sentimental post by Lisa A. Rich, former director of Legislative & Public Affairs at the U.S. Sentencing Commission and current director of the Texas A&M School of Law Residency Externship Program in Public Policy:
Last Week, I had the privilege of joining not only the tireless advocates of the Justice Roundtable and White House staff but over two dozen recipients of clemency spanning four presidencies during the Justice Roundtable and White House Briefings on “Life After Clemency.”
Personally, it was a joy to see all of the people — Nkechi Taifa, Mark Osler, Cynthia Rosenberry, Jesselyn McCurdy, Julie Stewart, Margy Love, and so many others who have been working tirelessly to answer the Obama Adminstration’s call to action on clemency. I am in awe of the ceaseless dedication these advocates demonstrate every day in their pursuit of hope and justice for those human beings who deserve a chance to be something so much more than a statistic in our cycle of mass incarceration. These advocates and those for whom they do their jobs are the role models I discuss in my classes and they are the ones who inspire me to be better.
But more than my personal connection with those I miss because I am no longer living in D.C., the events over these past three days were important for two reasons. First, all of us, including the President and White House staff saw and heard what hope is all about. We heard from clemency recipients about heartache, mistake, and loss being turned into determination, faith, and commitment. We heard people who genuinely want to make their communities and their lives better, stronger, and happier. I am delighted that policymakers inside and outside of Washington are taking the opportunity to get to know these people — as people, not numbers, not workload, not files on a desk.
Second, I was pleased that two of my students were in the audience — and in fact had been given the opportunity to be involved in preparing for these events. As part of Texas A&M School of Law’s new externship program in public policy, these students got to see policymaking in action from start to finish; they got to see firsthand the effects of both good and bad policy decisions. Their experiences may not seem all that different from the hundreds of law students who go to D.C. and elsewhere each semester to partake in policy but it actually was a defining moment for me and them. These students are the future policymakers and advocates. To me, the events of these past three days were not just about hope for those impacted by outdated laws and poor decision making, but hope that the next generation of lawyers, policymakers, and advocates being trained by the brilliant people who participated in these events will learn from our mistakes; that they will engage in sound decision making based on evidence and best practices; that they will carry on the work done so well by so many. As an advocate and a teacher that is what hope is all about.