Tuesday, July 12, 2016

Federal prosecutors want former Gov Blagojevich to get same 14-year prison term at resentencing despite a few vacated convictions

As reported in this local article, headlined "Feds: Give Blago 14 years all over again," federal prosecutors do not believe that the partial success that former Illinois governor had when appealing his corruption convictions should produce any benefit at his upcoming resentencing. Here are the details from resentencing memos filed this week:

Federal prosecutors want former Gov. Rod Blagojevich sentenced to 14 years in prison all over again. But Blagojevich hopes the federal judge who originally hammered him with that 14-year sentence will reconsider and give him as little as five years behind bars.

Blagojevich has already been locked up for four years in a Colorado prison. Next month, his battle to overturn his conviction could land him back in front of U.S. District Judge James Zagel for re-sentencing, after years of cries that Blagojevich was dealt too severe a punishment. The feds stood by the sentence in a sentencing memo filed just before midnight Monday, though.

“Corruption spreads unless it is deterred,” Assistant U.S. Attorney Debra Riggs Bonamici wrote in the memo. “Public officials who gain from corrupt deals are incentivized to do more, and successes inspire other public officials to see if they can do it too.”

Meanwhile, Blagojevich’s lawyers made an appeal for mercy and opened a window into Blagojevich’s four years behind bars. They said the former governor worked in the kitchen warehouse, taught Civil War and World War II history and studied music as a way to connect to his daughter Annie, who studied classical piano. Lawyer Leonard Goodman wrote that Blagojevich formed a band with another inmate called “The Jailhouse Rockers” that broke up when the other inmate was released.

“Blagojevich’s number one priority during his four plus years of incarceration has been to repair and mitigate the harm that his actions have done to his wife and children,” Goodman wrote. “Blagojevich speaks to his family nearly every evening.”

Some older related posts on the Blagojevich case:

July 12, 2016 in Celebrity sentencings, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (1)

Wednesday, July 06, 2016

"Implementing Proportionality"

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

Over the last fourteen years, the Supreme Court has issued five decisions that impose substantive constraints on our harshest punishments -- forbidding the execution of those with “mental retardation” in Atkins v. Virginia, of juveniles in Roper v. Simmons, and of those convicted of child sexual assault in Kennedy v. Louisiana, and forbidding the sentence of life without parole for juveniles who had not killed in Graham v. Florida and for all juveniles when it is imposed mandatorily in Miller v. Alabama.  Because the offenders in question were categorically less culpable, the proscribed punishment was disproportionately severe, the Court held.  

In many respects, these decisions reinvigorated the Court’s substantive proportionality jurisprudence, which had been virtually dormant for two decades.  Yet, three of the five decisions simply have not yielded in practice what they promised in principle.  The implementation of Atkins, Graham and Miller has been so protracted, litigious and encumbered by procedural obstacles that, of the nearly 3,000 inmates nominally impacted by the decisions, only a fraction has been relieved of their sentences.  In the meantime, inmates with IQs of 61 have been executed, and others have died waiting to hear whether the Court’s decisions apply retroactively.

This Article argues that, despite its transformative potential, the Court’s contemporary proportionality jurisprudence has been diminished in scope and potency in the course of its implementation -- a dynamic that has been called “slippage.”  In many respects, the “slippage” of these mandates can be attributed to the decisions themselves, which are deregulatory and, in concert with the Court’s broader efforts to limit federal court jurisdiction over state criminal justice processes, tie the scope of relief to the political whims and majoritarian preferences of the States.  On some issues, the procedural docility of these decisions has proven so problematic that the Court has twice within the last two years had to intervene, striking portions of Florida’s capital sentencing scheme in 2014 and, just weeks ago, declaring in Montgomery v. Louisiana that Miller does in fact apply retroactively.  

While the Court’s reluctance to regulate the implementation of its proportionality mandates may be rationalized as necessary deference to the principles of federalism and finality, these justifications are far less compelling in the Eighth Amendment context.  The very establishment of federal habeas, executive clemency, and Supreme Court review suggests that the Framers themselves recognized that there are normative points when interests in federalism and finality simply must yield.  By contrast, the risk of offending constitutional norms through slippage may be at their most pronounced since one of the Eighth Amendment’s primary purposes is to protect the politically powerless from government overreach.  I conclude that, if the Court is serious about implementing in practice the substantive constraints on punishment it has imposed over the last fourteen years, it must accompany its substantive mandates with a minimum threshold of procedural prescription.

July 6, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Jackson and Miller Eighth Amendment cases, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Deep dives into realities of sex offender registries two decades after they started to proliferate

Vox has these two lengthy new pieces looking at the realities of sex offender registries:

Here is an extended excerpt from the first of these pieces:

The registry was designed for "sexual predators" who repeatedly preyed on children (at least according to the fears of 1990s policymakers). The purpose was supposed to be not punishment but prevention. The theory: Sexual predators" were unable or unwilling to control their urges, and the government could not do enough to keep them away from children, so the job of avoiding "sexual predators" needed to fall to parents....

Twenty years later, the focus on sex crimes has shifted from sexual abuse of children to sexual assault and rape. The idea that criminals can’t control their behavior has been replaced by attention to the cultural and institutional failures that allow rapes to happen and go unpunished; the idea that it’s up to potential victims to change their behavior is usually criticized as victim blaming.

Yet the sex offender registry is still going strong.

It hasn’t worked as a preventive tool. Instead, it's caught up thousands of people in a tightly woven net of legal sanctions and social stigma. Registered sex offenders are constrained by where, with whom, and how they can live — then further constrained by harassment or shunning from neighbors and prejudice from employers.

Some of the people on the sex offender registry have had their lives ruined for relatively minor or harmless offenses; for example, a statutory rape case in which the victim is a high school grade younger than the offender.

Others are people like Brock Turner — people who have committed serious crimes that are nonetheless very different from the ones the registry was supposed to prevent, and which the registry might, in fact, make harder to fight.

This happens often in the criminal justice system: Something designed for one purpose ends up getting used for something else. As usual, it happened because people can't agree on what society wants to do with criminals to begin with.

July 6, 2016 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (18)

Thursday, June 30, 2016

"The Power of Pell Grants for Prisoners"

The title of this post is the headline of this new New Yorker‎ commentary authored by Clint Smith. Here are excerpts:

Last Thursday, the Obama Administration selected sixty-seven colleges and universities across twenty-seven states to participate in the Second Chance Pell Pilot Program, which aims to “create a fairer, more effective criminal justice system, reduce recidivism, and combat the impact of mass incarceration on communities.”  The new initiative could make Pell Grants available to as many as twelve thousand people behind bars. Secretary of Education John B. King, Jr., made sure to address the aforementioned concerns around funding head on, stating that the resources allotted to the pilot program make up less than 0.1 per cent of the thirty-billion-dollar Pell Grants program, and will in no way cut into funding for current or future Pell Grant recipients who are not incarcerated.

As advocates of prison education might note, twelve thousand is a small proportion of the 2.3 million people currently in prison. But the executive action by the Obama Administration is a progressive step forward on correctional education, especially given that legislation like the Restoring Education and Learning (real) Act — which would eliminate the provision in the crime bill barring prisoners in state or federal institutions from Pell Grant eligibility — remains stalled in Congress. Social scientists have known for some time that prison-education programs are a cost-effective and successful means of reducing recidivism.  A study by the rand Corporation in 2013 found that incarcerated individuals who participated in educational programs were forty-three per cent less likely to recidivate within three years than those who did not. It also found that correctional education increased the likelihood of obtaining employment once released, with those who participated in programming during their time behind bars thirteen per cent more likely to obtain a job than those who did not....

Being incarcerated does not mean being devoid of the capacity to learn, grow, and think, and it’s critical that prisons provide spaces where learning can be both cultivated and encouraged.

This is what makes the Obama Administration’s program so important.  Pell Grants provide resources that assist colleges in building their capacity in prisons, by covering the cost of books, tuition, and fees.  But, though certainly beneficial to those men and women who will receive the grants, there are limits to what the program offers.  For example, to qualify, a person must be eligible for release within five years of enrolling, which doesn’t address the educational needs of those serving long-term or life sentences.

The benefits of prison education go beyond lowering recidivism rates and increasing post-release employment. It can also rekindle a sense of purpose and confidence. For Jackson, participating in the Boston University prison-education program, and moving closer to obtaining a bachelor’s degree, has fundamentally changed his sense of self — and increased the likelihood that he’ll stay out of prison if the parole board approves his release.  The Second Chance Pell Pilot Program means that more people like Jackson will have an opportunity to take college-level classes, improving their chances of remaining out of prison and also of giving them back a sense of purpose that has otherwise been stripped away.  Or, as Jackson said about his work, it’s “like you’re doing something with your life.”

June 30, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Saturday, June 25, 2016

"Trauma Informed Juvenile Justice"

The title of this post is the title of this new paper authored by Samantha Buckingham now available via SSRN. Here is the abstract:

The juvenile justice system fails to account for the astounding rates of childhood trauma exposure amongst system-involved youth. Trauma, an experience threatening to life, safety, or well-being, overwhelms an individual’s ability to cope.  The experience of trauma is so pervasive amongst juvenile justice youth that a recent study found that 93% of children in an urban detention facility had experienced at least one traumatic event in the past year, and for more than half of those youth the trauma they reported was witnessing violence.  When left untreated, or treated without targeted trauma-specific therapies, trauma sufferers are vulnerable to commit offenses as children and as adults.  The stakes are high: untreated trauma can turn people into ticking time bombs bound to respond to triggers and misinterpret events, sometimes responding violently, even to mundane events in their daily lives.  The good news is that when trauma is identified and treated with appropriate trauma-specific methods, child trauma sufferers in particular can heal, overcome their trauma, and grow in positive ways.

The juvenile justice system has yet to catch up with contemporary understanding of trauma’s impact on offending and the latest best practices for treatment of trauma. Specifically, the juvenile justice system fails to accurately identify trauma and often employs counter-productive responses to juvenile offending, such as removal from the home, programming and treatment that is general rather than trauma-specific, and the over-use of detention.  Poor youth of color, the most marginalized among us, are the children who suffer the greatest from the current failure to incorporate a trauma-focused response in the juvenile justice system and are subjected to incarceration at unreasonably high rates. Incarceration itself is traumatic, it exacerbates pre-existing trauma, and it is counterproductive to long-term community safety.

This Article proposes four trauma-informed reforms: (1) create a presumption of trauma, (2) mandate trauma identification of youth in the juvenile justice system, (3) implement trauma-informed procedures, and (4) utilize trauma-informed dispositions, which will dramatically reduce our over-reliance upon incarceration in favor of safe-settings in the community.  Endowed with trauma-focused reforms, the juvenile justice system is poised to identify and appropriately respond to the many traumatized children who come to its attention early enough to make a difference, capitalizing on the incredible potential for growth and resilience children possess, realizing the paramount goal of rehabilitation, promoting long-term community safety, and working to eliminate the incarceration of children.

June 25, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Wednesday, June 22, 2016

Making the case for enfranchisement to create a "prison constituency"

Corey Brettschneider has this lengthy new commentary at Politico with this lengthy full headline: "Why Prisoners Deserve the Right to Vote: Giving inmates the vote isn’t just constitutionally the right thing to do, it could also help the country solve one of its most intractable problems." I recommend the full piece, and here are excerpts from its closing sentiments:

Perhaps the most important reason to allow prisoner voting is that prisons, not just prisoners, would benefit. Prisoners need the vote to serve as the “natural defenders” of their own interests. But in defending their own interests, prisoners could substantially improve the prison system itself.

We can start with the issue of prisoner abuse. We already know that prisoners are subject to abusive and inhumane conditions. In a 2011 ruling that held overcrowded California prisons in violation of the Eighth Amendment, Justice Anthony Kennedy wrote that in California alone, an inmate “needlessly dies every six or seven days.” Plenty of other prison practices, such as solitary confinement, are just now receiving public scrutiny, and there are likely more troubling conditions we don’t know about. Under the current system, ending abusive practices requires years of expensive litigation as prisoners sue over maltreatment and prisons adjust to the rulings. We could improve prisons much more quickly and cheaply by creating a political constituency of prison voters.

How would that work? Obama’s historical 2015 visit to a federal prison was noteworthy because politicians rarely listen to those incarcerated. A prison and jail constituency, numbering roughly 2 million across 50 states, would make it routine for politicians to hold town halls and seek ways to improve prison and jail conditions from those who are subjected to them. This is not coddling prisoners. More and more politicians are looking to reform our criminal justice system, and this would be a common sense way to help them identify needed changes.

Of course, granting the right to vote is not enough to create a robust prison constituency. Prisoners will also need to be granted the right to speak freely and receive information, both of which are rights that are often limited for prisoners currently. Superstar litigator and former Solicitor General Paul Clement has already filed a lawsuit defending the right of prisoners to gain access to news about public life. Indeed, government can be held accountable only when citizens have information about the actions of their representatives.

Many will resist the idea of a prison constituency. The point of prisons, they say, is to inflict punishment, not to allow organizing. But this is shortsighted. Prison is itself already severe punishment. The deprivation of liberty and the loss of control over everyday interaction, including the ability to see one’s loved ones on a daily basis, are all severe constraints imposed by incarceration. One can be punished without being subjected to civic exile.

Some will argue that it is enough to allow prisoners to regain their right to vote after release. But we cannot expect prisoners to be deprived of all rights and then emerge from prison ready to use them well. The new consensus around post-release enfranchisement demands a smarter way to think about prisoners’ political rights behind bars. A prison constituency with rights to vote and related rights of free speech can engage in civic activism that will continue after release. Although voters in Massachusetts saw prisoner political participation as a kind of insurrection, it is nothing like the violent insurrections that marked prisons of the 1970s. As Joe Labriola, chairman of a Massachusetts civic prison organization called the Norfolk Lifers Group, put it, “In the ’70s, we thought we could make change with violence. Our whole point now is to make prisoners understand that we can make changes by using the vote. We have the ability to move prisons in a new direction.”

Research by Avidit Acharya, Matthew Blackwell and Maya Sen suggests another reason to care about voting in prison: They show that even temporary gaps in voting will have a long-term impact on participation. If we really care about felons’ post-release political participation, it is important that they be able to participate while they are in prison....

The creation of a prison constituency is not yet on the national agenda. But the increasing end to post-felony disenfranchisement makes this a good time to think about deeper changes to the way we treat the incarcerated. In the meantime, alternative measures could move things in the right direction: We should affirm nationally and, if need be, litigate for the right of prisoners to form PACs on the model of the Massachusetts group. Although legitimate concerns exist about the impact of PAC money on politics, these committees do provide a way to further a group’s policy interests. We can no longer grant that right to non-incarcerated citizens as a matter of free speech and deny it to prisoners, who are, according to the Supreme Court, citizens no less. The backlash from Massachusetts’ citizens was from an era in which mass incarceration was lauded and prison organizing was anathema in national politics. But today, citizens from both political parties are mobilizing against the harsh prison policies of the 1990s. Giving prisoners the right to free political speech is a sensible corrective to our misguided practice of mass incarceration.

In the end, restoring these basic rights is not only the right thing to do constitutionally; it could also present positive solutions to a major national political problem. The prison system would be more effective if it were accountable to its constituents. Prisoners have often committed heinous crimes. But they remain a part of our democratic polity, and we can learn from what they have to say.

June 22, 2016 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, June 21, 2016

Intriguing review of Georgia's intriguing modern history with capital punishment

Because many modern landmark Supreme Court death penalty cases came from Georgia (e.g., Furman, Gregg, Coker, McKlesky), the Peach State will always have a plum role in any story of the modern history of the death penalty.  And this recent local article, headlined "Georgia executions rise, while death sentences plummet," details why Georgia's most recent history with capital punishment also merits attention.  Here is how the piece starts:

It’s Georgia’s new death penalty paradox: the state is executing inmates at a record clip, but prosecutors almost never seek the death penalty anymore, and juries refuse to impose it when they do.

During each of the past two years, Georgia executed five inmates. If, as expected, the state carries out another execution later this year, it will have put more people to death — six — in 2016 than in any single year since the U.S. Supreme Court reinstated capital punishment four decades ago. But the last time a Georgia jury imposed a death sentence was in March 2014. And district attorneys have been turning away from death as a sentencing option, more often allowing killers to receive sentences of life in prison without the possibility of parole.

A decade ago, state prosecutors filed notices of intent to seek the death penalty against 34 accused killers. That number dropped to 26 in 2011 and to 13 last year. How many times have Georgia DAs sought the death penalty so far this year? Once. And this was against a man accused of killing a priest — a clergyman who had signed a document saying if he died a violent death he did not want his killer to face the death penalty.

The incongruity of the increasing numbers of executions and the plummeting numbers of death sentences took both prosecutors and defense attorneys by surprise. “Wow,” Atlanta criminal defense attorney Akil Secret said. “Maybe the times are changing.” The precipitous declines raise the question of whether prior capital sentences were justified, Secret said. “If a life-without-parole sentence is sufficient for today’s worst crimes, why isn’t it sufficient for those crimes from the past where death was imposed?”

June 21, 2016 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, June 19, 2016

"Collateral Consequences and the Preventive State"

The title of this post is the title of this article by Sandra Mayson just posted to SSRN. Here is the abstract:

Approximately eight percent of adults in the United States have a felony conviction.  The “collateral consequences” of criminal conviction (CCs) — legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence — have relegated that group to permanent second class legal status.  Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs.  Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment.  Courts should correct course by classifying CCs as “punishment,” the consensus holds, such that constitutional constraints on punishment will apply.

This Article argues for a different approach.  The consensus view overlooks the fact that most CCs invoke a judgment of dangerousness as the basis for limiting individual liberty. Given their predictive logic, the Article contends that there are serious costs to classifying (most) CCs as punishment and that the courts have reached a defensible result in declining to do so.  Where they have erred is in assuming that, as mere regulation, CCs are benign.  On the contrary, laws that restrict certain people’s liberty solely on the basis of their perceived propensity to commit future crimes raise both moral and constitutional concerns.  Rather than classify CCs as punishment, this Article contends that the better approach to constitutional adjudication of most CCs — for both theoretical and tactical reasons — is to recognize them as predictive risk regulation and seek to develop appropriate constraints.

June 19, 2016 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Thursday, June 16, 2016

"Private Prisons and the Marketplace for Crime"

The title of this post is the title of this notable new paper authored by andré douglas pond cummings and Adam Lamparello now available via SSRN. Here is the abstract:

A saner and safer prison policy in the United States begins by ending the scourge of the private prison corporation and returning crime and punishment to public function.  We continue by radically reimagining our sentencing policies and reducing them significantly for non-violent crimes.  We end the War on Drugs, once and for all, and completely reconfigure our drug and prison policy by legalizing and regulating marijuana use and providing health services to addicts of harder drugs and using prison for only violent drug kingpins and cartel bosses.  We stop the current criminalization of immigration in its tracks and block the private prison lobby from influencing legislation in our current immigration policy debates.  We provide prisoners a fair wage for work done in prison, allowing them a re-entry account upon release filled with the money they earned while working in prison.  We provide humane and habitable prison cells populated by one inmate, as saner and safer crime and punishment policies will imprison far fewer American citizens.

At their core, private prisons reflect a continuation of policies that have tainted the criminal justice system with perceptions of arbitrariness, unfairness, and injustice.  As this article has shown, the continued proliferation of private prisons does not save taxpayers money, increase prison safety, or elevate the conditions of the prison environment. Conversely, they do the opposite.  Inmates are being physically abused, denied medical care, and forced to endure inhumane living conditions, as corporations like CCA and GEO Group realize higher profits from a marketplace in which prisoners are in high demand.  Indeed, CCA is a textbook example of the grave injustices that can occur when profit maximization clashes with human dignity.  The time has arrived for private prisons to be eliminated and for legislators and courts to realize that this experiment is one that has failed.  Until that time comes, Congress should implement purpose-driven reforms to ensure that private prisons can no longer be institutions where inmates have rights but no remedies.

June 16, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, June 15, 2016

"Substantive and Procedural Silence"

The title of this post is the title of this intriguing new paper authored by Erin Sheley now available via SSRN. Here is the abstract:

Perceptions of the procedural fairness of the criminal justice system turn on whether it gives individuals and communities a “voice,” or a forum in which to tell their stories. If the system imposes unwanted silence on a party its legitimacy in the eyes of the public decreases.  Despite the extensive literature on the many specific applications of silence in the justice system, no attempt has yet been made to break down the relationship between the victim’s silence and the defendant’s across the disparate doctrines of criminal law, or the importance of these interconnections to the expressive purposes of punishment, particularly in a world where punishment so frequently turns on the outcome of plea negotiations.

Such an effort requires us to recognize a distinction between procedural silence, which is grounded in the individual rights of each party, and what should be understood as substantive silence, which can form part of both the definition of criminal conduct on the front end and, on the back end, of the judgment and sentence in a particular case.  This article has two purposes.  One, it provides the first full taxonomy of the role of silence in the criminal law and identifies the key interactions between procedural and substantive silence.  And, two, it offers normative suggestions — particularly to prosecutors — for managing silence in a way that will better achieve justice in light of the cumulative relationship between substance and procedure.

June 15, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, June 13, 2016

"Taking Dignity Seriously: Excavating the Backdrop of the Eighth Amendment"

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

The U.S. punishment system is in turmoil.  We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions.  Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented.  The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess.

The Court has been consistent in stating that a focus on offender dignity is at the core of the Amendment’s prohibition on cruel and unusual punishments, but there has been virtually no analysis of what this dignity requirement means.  This Article takes the first foray into this unexplored landscape and finds that the Constitution demands that the individuality of offenders be considered in imposing and carrying out sentences. While this appears to be a simple concept, it raises significant concerns about several modern-day sentencing practices.  Punishments rooted in pure utilitarianism, by neglecting the importance of the individual offender, run afoul of this dignity demand.  This sheds doubt on the propriety of some judges’ assertions that defendants’ freestanding innocence claims cannot stand because policy considerations like finality are of paramount importance; an individual offender cannot be ignored purely for the sake of societal goals.

For the same reason, the importance of individual dignity should lead us to question statutes supporting only utilitarian aims of punishment.  While this raises questions about the constitutionality of pure deterrence, rehabilitation, and incapacitation, these purposes of punishment may be reconceptualized to account for the individual offender.  For example, rehabilitation could be reformulated to consider not only the offender’s effects on society when he is returned to the community but also whether the offender’s character has been reformed.  Finally, the importance of Eighth Amendment dignity raises questions about the constitutionality of mandatorily imposed punishments, which overlook the importance of individualization in sentencing. If we take seriously the dignity core of the Eighth Amendment, then many of these practices must be reconsidered.

June 13, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, June 08, 2016

"Salience and the Severity Versus the Certainty of Punishment"

The title of this post is the title of this notable new essay authored by Murat Mungan now available via SSRN. Here is the abstract:

The certainty aversion presumption (CAP) in the economics of law enforcement literature asserts that criminals are more responsive to increases in the certainty rather than the severity of punishment.  In simple economic models, this presumption implies that criminals must be risk-seeking.  Some scholars claim that this and similar anomalous implications are caused by the exclusion of various behavioral considerations in theoretical analyses.

This article investigates whether a model in which criminals over-weigh probabilities attached to more salient outcomes (as in Bordalo et al. (2012) and (2013)) performs better than the simple expected utility theory model in explaining CAP-consistent-behavior.  The analysis reveals that the answer is negative unless the probability of punishment is unreasonably high.  This finding suggests that we should exercise caution in incorporating salience -- a la Bordalo et al.-- in simple law enforcement models.

June 8, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

"My brain made me do it: will neuroscience change the way we punish criminals?"

The title of this post comes from the headline of this recent interesting press piece from Australia that a helful reader sent my way. The piece does a nice job talking through in simple term the possible relationship between theories of punishment and modern neuroscience.  Here are excerpts:

Australian law may be on the cusp of a brain-based revolution that will reshape the way we deal with criminals.  Some researchers, such as neuroscientist David Eagleman, have argued that neuroscience should radically change our practices of punishment.  According to Eagleman, the courts should give up on the notion of punishment altogether and instead focus on managing criminals and containing their behaviour in order to keep the rest of us safe.

Is this a good idea? And is this how Australian judges are responding to our increasing knowledge of the neurobiological bases of behaviour?...

[S]ome academics, such as American psychologists Joshua Greene and Jonathan Cohen, have argued that consequentialist considerations will be all that is left after neuroscience revolutionises criminal law. Punishment as retribution will be consigned to history.

According to Greene and Cohen, retributivism relies on the notion that people have free will. They say the advance of neuroscience will cure us of that notion by opening the black box of the mind and revealing the mechanistic processes that cause all human behaviour.  Once these causes are revealed, we will give up the idea that people are responsible for their bad actions.

We will start to think that a criminal’s frontal lobe impairment caused him to lash out, for instance, and focus on how we can prevent this happening again, rather than thinking they chose to punch their victim and thus they deserve punishment.  According to Greene and Cohen, this will make crime reduction the only goal.  If they are right, punishment practices will move in the direction advocated by Eagleman.

Greene and Cohen made their argument about the demise of retributivism ten years ago.  In light of their predictive claims, it is interesting to examine how the legal system is actually responding to the increasing use of neuroscientific evidence.  We can get an idea of what is happening in Australia from cases in the Australian Neurolaw Database, which was launched in December 2015. The database is a joint project between Macquarie University and the University of Sydney, and includes both Australian civil and criminal cases that employed evidence derived from neuroscience.

Interestingly, the sentencing cases in the database do not suggest retributive justice is being abandoned when the court is confronted with evidence of impairment to an offender’s brain.  Where used in sentencing, neuroscience evidence is often put forward in relation to assessment of the moral culpability of the offender.  It is thus used to help determine how much punishment an offender deserves.

This is very different to suggesting moral culpability ceases to be a relevant consideration in the determination of punishment, or that courts should pay no regard to questions of desert.  It presupposes that questions about appropriate punishment are important ones to answer correctly.

One example of the way Australian courts regard evidence derived from neuroscience is in the sentencing of Jordan Furlan in 2014. In sentencing 49-year-old Furlan for a violent incident involving a 76-year-old victim, Justice Croucher considered the impact of evidence of a brain injury some years prior to the offence, on Furlan’s moral culpability. Justifying a sentence of three years and six months, the judge said the offender’s “moral culpability was reduced, but only to a moderate degree because his judgment was impaired as a result of his acquired brain injury".  The judge went on to say that just punishment was an important factor (among others) in crafting the sentence....

We cannot be sure how neuroscience will affect the law in future.  Indeed, there may even be a backlash against this form of evidence. What can be said is that ... Australian judges still consider moral culpability, even in the face of neuroscientific evidence of impaired mechanisms. They do not move to purely consequentialist considerations.  This means retributivism is still alive and well, and just punishment still matters to Australian courts.  So, at least for now, the impact of neuroscience is not revolutionary.

June 8, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Monday, June 06, 2016

US Sentencing Commission posts big new report authored by its Tribal Issues Advisory Group

I received via email today a US Sentencing Commission notice about these notable new tribal sentencing activities:

Today, the Commission’s Tribal Issues Advisory Group (TIAG) released its final report addressing federal sentencing issues related to American Indian defendants and victims and to offenses committed in Indian Country.

The Commission has scheduled a public hearing for July 21, 2016 to receive testimony from members of the TIAG on this report. The TIAG will present its findings and subsequent recommendations for amending the federal sentencing guidelines.

The full TIAG report runs more than 100 pages, but it starts with this helpful, brief and interesting executive summary:

The Tribal Issues Advisory Group (“the TIAG”) makes several recommendations to the United States Sentencing Commission (“the Commission”) for revisions and additions to the Sentencing Guidelines (“the Guidelines”), for tribal consultation, and for other changes. The TIAG suggests that the following revisions be made to the Guidelines:

(1) Adding an application note and commentary to USSG §4A1.3 to guide when tribal court convictions may be considered for a possible upward departure in the defendant’s criminal history category;

(2) Including in USSG §1B1.1 a definition of “court protection order;”

(3) Amending USSG §5H1.1 regarding the “age” policy statement; and

(4) Adding a departure concerning juvenile and youthful offenders as USSG §5K2.25.

The TIAG recommends that the Commission adopt certain policy changes including:

(1) Establishing a standing advisory group on tribal issues to assist the Commission on changes to the Guidelines impacting American Indian defendants, to advise on and assist in tribal consultation, and to form the basis for a new TIAG when appropriate;

(2) Creating a process for the collection of better data on federal court sentencing to allow for study of the protection order provisions of the Guidelines and analysis of sentencing disparity concerns as detailed herein; and

(3) Considering the recommendations of other working groups regarding juvenile offenders, including possibly collapsing sentencing zones A, B, and C into a single zone.

The TIAG also recommends that the Commission support changes in federal law and practice including:

(1) Congressional action that incentivizes states and requires appropriate federal agencies to collect data on state court sentencing of defendants generally and Native American defendants in particular so that better data exists to analyze whether and where there truly are sentencing disparities;

(2) Increased use of pretrial diversion agreements by United States Attorneys’ offices;

(3) Increased use by law enforcement in Indian country of misdemeanor statements of charges and Central Violations Bureau misdemeanor citations to non-Indians in Indian country;

(4) Better training of federal employees who work in Indian country about Native American history and culture; and

(5) Revisions to the Juvenile Delinquency Act, 18 U.S.C. § 5032, to require federal consultation with tribes in certain juvenile case prosecutions.

This Report provides the basis for and an explanation of these and other recommendations.

June 6, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Sunday, June 05, 2016

Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing

The Wall Street Journal has this effective new article discussing the case now before the Wisconsin Supreme Court considering a defendant's challenge to the use of a risk assessment tool in the state's sentencing process.  The article's full headline notes the essentials: "Wisconsin Supreme Court to Rule on Predictive Algorithms Used in Sentencing: Ruling would be among first to speak to legality of risk assessments as aid in meting out punishments." And here is more from the body of the article:

Algorithms used by authorities to predict the likelihood of criminal conduct are facing a major legal test in Wisconsin.  The state’s highest court is set to rule on whether such algorithms, known as risk assessments, violate due process and discriminate against men when judges rely on them in sentencing.  The ruling, which could come any time, would be among the first to speak to the legality of risk assessments as an aid in meting out punishments.

Criminal justice experts skeptical of such tools say they are inherently biased, treating poor people as riskier than those who are well off. Proponents of risk assessments say they have elevated sentencing to something closer to a science. “Evidence has a better track record for assessing risks and needs than intuition alone,” wrote Christine Remington, an assistant attorney general in Wisconsin, in a legal brief filed in January defending the state’s use of the evaluations.

Risk-evaluation tools have gained in popularity amid efforts around the country to curb the number of repeat offenders.  They help authorities sort prisoners, set bail and weigh parole decisions. But their use in sentencing is more controversial.

Before the sentencing of 34-year-old Eric Loomis, whose case is before the state’s high court, Wisconsin authorities evaluated his criminal risk with a widely used tool called COMPAS, or Correctional Offender Management Profiling for Alternative Sanctions, a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs.  The assessment includes queries like, “Did a parent figure who raised you ever have a drug or alcohol problem?” and “Do you feel that the things you do are boring or dull?”  Scores are generated by comparing an offender’s characteristics to a representative criminal population of the same sex.

Prosecutors said Mr. Loomis was the driver of a car involved in a drive-by shooting in La Crosse, Wis., on Feb. 11, 2013. Mr. Loomis denied any involvement in the shooting, saying he drove the car only after it had occurred. He pleaded guilty in 2013 to attempting to flee police in a car and operating a vehicle without the owner’s consent and was sentenced to six years in prison and five years of supervision.  “The risk assessment tools that have been utilized suggest that you’re extremely high risk to reoffend,” Judge Scott Horne in La Crosse County said at Mr. Loomis’s sentencing.

Mr. Loomis said in his appeal that Judge Horne’s reliance on COMPAS violated his right to due process, because the company that makes the test, Northpointe, doesn’t reveal how it weighs the answers to arrive at a risk score. Northpointe General Manager Jeffrey Harmon declined to comment on Mr. Loomis’s case but said algorithms that perform the risk assessments are proprietary. The outcome, he said, is all that is needed to validate the tools.  Northpointe says its studies have shown COMPAS’s recidivism risk score to have an accuracy rate of 68% to 70%. Independent evaluations have produced mixed findings.

Mr. Loomis also challenged COMPAS on the grounds that the evaluation treats men as higher risk than women.  COMPAS compares women only to other women because they “commit violent acts at a much lower rate than men,” wrote Ms. Remington, the state’s lawyer, in her response brief filed earlier this year in the Wisconsin Supreme Court. Having two scales — one for men and one for women — is good science, not gender bias, she said.

The parties appeared to find common ground on at least one issue. “A court cannot decide to place a defendant in prison solely because of his score on COMPAS,” Ms. Remington acknowledged, describing it as “one of many factors a court can consider at sentencing.” Her comments echoed a 2010 ruling by the Indiana Supreme Court holding that risk assessments “do not replace but may inform a trial court’s sentencing determinations.”

June 5, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Saturday, June 04, 2016

"What Do Criminals Deserve?"

The title of this post is the title of this new book chapter authored by Douglas Husak now available via SSRN. Here is the abstract:

I attempt to specify the precise role played by desert in a justification of state punishment.  To this end, I contrast the questions that must be resolved from those that need not be addressed at all or cannot be answered to anyone's satisfaction.  I argue that much can be learned about the justification of state punishment by focusing on situations in which persons react appropriately to culpable wrongdoing perpetrated by non-state actors.  I conclude that the greatest difficulty for desert theorists is to explain why the deprivations and stigma legitimately inflicted by victims should take the form of hard treatment and censure imposed by the state.  I offer a few inconclusive suggestions about how this latter problem might be solved.

June 4, 2016 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, June 02, 2016

Praise for recent Nesbeth opinion using collateral consequences to justify probation sentence for federal drug offense

Lincoln Caplan has authored this New Yorker piece, headlined "Why a Brooklyn Judge Refused to Send a Drug Courier to Prison," to praise US District Judge Block's discussion of the impact and import of collateral consequences in his Nesbeth sentencing opinion (first discussed here). Here are excerpts:

Block explained that he had imposed a year of probation, with two special conditions: six months of home confinement (“to drive home the point that even though I have not put her in prison, I consider her crimes to be serious”) and a hundred hours of community service (“in the hope that the Probation Department will find a vehicle for Ms. Nesbeth, as an object lesson, to counsel young people as to how their lives can be destroyed if they succumb to the temptation to commit a crime, regardless of their circumstances”). 
But the bulk of his opinion — the reason federal judges throughout the country have been sending it to one another as a cutting-edge view on an important issue in sentencing—is about why he “rendered a non-incarceratory sentence.”  He wrote that it was largely “because of a number of statutory and regulatory collateral consequences she will face as a convicted felon” — restrictions that the federal government, as well as every state government, imposes on anyone convicted of a crime, but especially a felony. A broad range of the restrictions, he said, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.”

Block asked the U.S. Attorney’s office and the Federal Defenders of New York, which represented Nesbeth, to provide him with a list of the collateral consequences that she faces as a convicted felon.  The government identified what it described as the “handful” that are “potentially relevant.”  The loss of a driver’s license is the least onerous. She is also ineligible for student grants, loans, or work assistance for two years, and banned for life from receiving food stamps and Temporary Assistance for Needy Families, though Connecticut could grant her an exemption.  She and her family can be denied federally assisted housing for a “reasonable time,” and she cannot be issued a passport until her probation is finished, which matters to Nesbeth because, as her lawyer told the judge, her “father, grandmother, and extended family all reside abroad.”

The judge recounted that federal law imposes considerably more than a handful of consequences, “nearly 1,200 collateral consequences for convictions generally, and nearly 300 for controlled-substances offenses.”  Nesbeth’s counsel, Amanda David, of the Federal Defenders, said federal laws will make it difficult for her client to become an educator because they provide money “for background checks of all employees of educational agencies,” and a conviction for a drug felony “can be used as grounds for denying employment for potential employees who want to be involved in providing care to children under age 18.”  David also reported that Connecticut automatically bars anyone from getting a teaching certificate for five years after being convicted of a drug felony....

The main conclusion of the judge’s opinion is that, while the law allowed him to take account of the civil penalties when he sentenced her, there was nothing he could do to protect her from them. He joined criminal-justice experts in encouraging Congress and state legislatures “to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted,” and suggested that they do the country “more harm than good.” He didn’t say so, but for many legislatures that would mean carefully assessing these punishments for the first time.  As the criminal-justice scholar Jeremy Travis wrote, in 2002, legislatures have often adopted collateral consequences in unaccountable ways: “as riders to other, major pieces of legislation,” which are “given scant attention.”  They are, Travis said, “invisible ingredients in the legislative menu of criminal sanctions.”

The judge made clear why the severity of collateral consequences—authorizing discrimination in education, employment, housing, and many other basic elements of American life—means that anyone convicted of a felony is likely to face an arduous future. This predicament has been called modern civil death, social exclusion, and internal exile. Whatever it is called, its vast array of penalties kicks in automatically with a conviction, defying the supposedly bedrock principle of American law that the punishment must fit the crime.

Prior related post:

June 2, 2016 in Booker in district courts, Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Monday, May 30, 2016

Making the case for "Why Latinos Should Invest in Sentencing Reform"

Three notable advocates recently penned this notable Huffington Post commentary that has as its headline the quoted portion of this post's title. Here is how the piece starts and ends:

Partisan gridlock has halted many important policies from becoming realities. One of the promising policies, the Sentencing Reform and Corrections Act of 2015, is currently stalled in the Senate. If enacted, the legislation will have a colossal effect on Latinxs. Once incarcerated, Latinxs face limited economic opportunity, family trauma, turmoil, and deportation — consequences that do not in any way reflect reasonable punishment for the often minor infractions that occur.

Rita Becerra is one of those Latinxs. Rita, who was a single mother of two children and a new grandmother in 1994, was arrested and sentenced to 27 years behind bars for drug charges stemming from her live-in boyfriend’s involvement in the drug trade. Prior to that, Rita had never even had a traffic ticket. Although Rita had never touched any drugs or delivered them, she was charged with conspiracy with intent to distribute. Rita’s boyfriend was able to reduce his sentence to 9 years because he provided details about criminal activities to the prosecution. Yet, Rita could not plea bargain because the only information she knew of concerned her boyfriend’s illegal enterprises and the prosecution already had that knowledge.

This dilemma, where those most involved with a crime possess the lion’s share of information and can bargain for time off while those who may have little involvement — and thus little knowledge of crimes — receive a full sentence, is a frustratingly common occurrence. Rita’s story is as tragic and unjust as it is commonplace. Women are the fastest growing group of prisoners, boasting an incarceration rate almost double that of men leaving more than one million women behind bars.

Another alarming trend is that Latinxs are unjustly targeted because of policies and practices that perpetuate their involvement in the criminal legal system and immigration system. Consequently, Latinxs are twice as likely to be incarcerated as whites and are over-represented in state prisons in 31 of the 50 U.S. states. They are also overrepresented in the federal system, where Latinxs—who are 17.4 percent of the U.S. population—make up 33.8 percent of the incarcerated population in federal prisons. Indeed, today, 1 in every 6 Latino men and 1 in every 45 Latina women can expect to go to prison in their lifetime. As a result, 1 in 28 Latinx children in the U.S. have an incarcerated parent compared to 1 in 57 white children. Research shows that children who grow up with an incarcerated parent are more likely to go to prison themselves, in addition to suffering from a host of long-term effects and disabilities like attention deficits, mental illness, and physical health issues such as obesity, trauma, depression, and anxiety....

Make no mistake: criminal justice reform is a Latinx issue. But more importantly, it is a human rights issue of epic proportions that touches the lives of many people just like Rita. It demands our immediate attention and Congress’ immediate action.

May 30, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Friday, May 27, 2016

"Killing Dylann Roof: A year after Obama saluted the families for their spirit of forgiveness, his administration seeks the death penalty for the Charleston shooter."

The title of this post is the headline of this intriguing Atlantic commentary authored by Ta-Nehisi Coates. I urge everyone, both those for and against capital punishment, to read he entire piece. Here are excerpts:

On Tuesday, Attorney General Loretta Lynch announced she would seek the death penalty for Dylann Roof. It has not been a year since Roof walked into Emanuel African Methodist Episcopal Church and murdered nine black people as they worshipped.  Roof justified this act of terrorism in chillingly familiar language — “You rape our women and you’re taking over our country.”  The public display of forgiveness offered to Roof by the families of the victims elicited bipartisan praise from across the country.  The president saluted the families for “an expression of faith that is unimaginable but that reflects the goodness of the American people.” How strange it is to see that same administration, and these good people, who once saluted the forgiveness of Roof, presently endorse his killing....

There are defensible reasons why the American state — or any state — would find [the nonviolent Martin Luther] King’s ethic hard to live up to. States are violent. The very establishment of government, the attempt to safeguard a group of people deemed citizens or subjects, is always violent.  In America, a president is the commander in chief.  Anyone who voted for Obama necessarily voted for violence.  Furthermore, there is indisputable evidence that violence sometimes works.  The greatest affirmation of civil rights in American history — emancipation — was accomplished at gun-point.

But one has to be careful here not to fall into the trap of lionizing killing, of pride in the act of destroying people even for just ends.  Moreover, even if nonviolence isn’t always the answer, King reminds us to work for a world where it is. Part of that work is recognizing when our government can credibly endorse King’s example.  Sparing the life of Dylann Roof would be such an instance — one more credible than the usual sanctimonious homilies delivered in his name.  If the families of Roof's victims can find the grace of forgiveness within themselves; if the president can praise them for it; if the public can be awed by it — then why can't the Department of Justice act in the spirit of that grace and resist the impulse to kill?

Perhaps because some part of us believes in nonviolence not as an ideal worth striving for, but as a fairy tale passed on to the politically weak.  The past two years have seen countless invocations of nonviolence to shame unruly protestors into order. Such invocations are rarely made to shame police officers who choke men to death over cigarettes and are sent back out onto the beat.  And the same political officials will stand up next January and praise King even as they act contrary to his words.  “Capital punishment is against the best judgment of modern criminology,” wrote King, “and, above all, against the highest expression of love in the nature of God.”

A few prior related posts:

May 27, 2016 in Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (14)

Thursday, May 26, 2016

Making my way to DC for U.S. Chamber/NACDL Symposium: "The Enforcement Maze: Over-Criminalizing American Enterprise"

ILR. NACDL Banner-HHighlighting the many ironies of modern travel, this morning I got to the airport extra early for a flight to DCA because of all the talk about TSA under-staffing and long security lines. But after breezing through securing in a matter of minutes, I am now stuck in the CMH terminal delayed hours awaiting a working plane to ferry me to our nation's capital to participate in a symposium on overcriminalization. I am bummed about the delay because I was looking forward to hearing the morning panels at this inside-the-Beltway event to which I am heading: The U.S. Chamber Institute for Legal Reform (ILR) and the National Association of Criminal Defense Lawyers (NACDL) Law & Policy Symposium on "The Enforcement Maze: Over-Criminalizing American Enterprise."

Undaunted, I remain upbeat because I am cautiously optimistic I will still make it to DC in time to hear fellow lawprof Lucian Dervan present a "TED Talk-inspired" presentation on "The Symbiotic Relationship Between Overcriminalization and Plea Bargaining." I am also looking forward to an afternoon of highlights at this event that include a luncheon keynote by David Ogden, former Deputy Attorney General of the United States, as well as closing remarks by Senator Orrin Hatch.

For those revved up by these topics, here is the description of my afternoon panel:

The Public Policy Consequences and the Road to Recovery: This panel will address the erosion of respect for criminal law, costs incurred by taxpayers, over-incarceration, and the squashing of business ingenuity and growth, and will explore solutions to these problems.

I expect to talk briefly about the importance of mens rea considerations at the sentencing of persons convicted of business-related crimes (and I may do a future post or two on this topic). But, in light of the panel's description, I would welcome reader comments on what I should make sure gets covered my someone on my panel.

May 26, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, May 25, 2016

Federal judge justifies below-guideline sentence of probation for drug importer because of "statutory and regulatory collateral consequences she will face as a convicted felon"

As reported in this new New York Times piece, a "federal judge in Brooklyn, in an extraordinary opinion that calls for courts to pay closer attention to the impact of felony convictions on people’s lives, sentenced a young woman in a drug case to probation rather than prison, saying on Wednesday that the collateral consequences she would face as a felon were punishment enough." Here is more about the opinon:

The judge, Frederic Block of Federal District Court, said that the broad range of such collateral consequences served no “useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.” The judge noted that there were nearly 50,000 federal and state statutes and regulations that impose penalties, disabilities or disadvantages on convicted felons.

Such consequences — the denial of government benefits, ineligibility for public housing, suspension of student loans, revocation or suspension of driver’s licenses — can have devastating effects, he wrote, adding that they may also be “particularly disruptive to an ex-convict’s efforts at rehabilitation and reintegration into society.”

The issue of collateral consequences and sentencing has been considered by other courts, but Judge Block’s 42-page opinion appears to be one of the most detailed examinations yet, combined with his call for reform. He noted that the inability to obtain housing and employment stemming from a conviction often results in “further disastrous consequences, such as losing child custody or going homeless,” and leads to many ex-convicts “becoming recidivists and restarting the criminal cycle.”

The judge’s ruling does not create a binding legal precedent for other courts, but is likely to further contribute to the national debate about the criminal justice system. Gabriel J. Chin, a professor at the University of California Davis School of Law, called the opinion “groundbreaking.”

“This is by some distance the most careful and thorough judicial examination” of collateral consequences in sentencing, said Professor Chin, who has written extensively on the subject and whose work the judge cited in the opinion. “It’s going to generate debate on a critical issue in the criminal justice system — the ability of people convicted of crimes to get on with their lives,” he said.

The sentencing opinion was issued in the case of Chevelle Nesbeth, who was arrested last year at Kennedy International Airport after a search of her luggage turned up 600 grams of cocaine, court records show. A jury, rejecting her claim that she had been given the suitcases by friends and was unaware that they contained drugs, convicted her of importation of cocaine and possession of cocaine with intent to distribute, the judge wrote. She faced a sentence within 33 to 41 months under the federal advisory guidelines.

But in a hearing on Tuesday, Judge Block sentenced Ms. Nesbeth to one year of probation, six months of home confinement and 100 hours of community service.

Judge Block's full 42-page opinion in US v. Nesbeth, No. 15-cr-18 (E.D.N.Y May 24, 2016), can be downloaded below. Here are a few passages from its introduction:

Chevelle Nesbeth was convicted by a jury of importation of cocaine and possession of cocaine with intent to distribute. Her advisory guidelines sentencing range was 33-41 months. Nonetheless, I rendered a non-incarceratory sentence today in part because of a number of statutory and regulatory collateral consequences she will face as a convicted felon. I have incorporated those consequences in the balancing of the 18 U.S.C. § 3553(a) factors in imposing a one-year probationary sentence.

I am writing this opinion because from my research and ex:erience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers - both prosecutors and defense counsel - as well as by the Probation Department in rendering its pre-sentence reports, to the collateral consequences facing a convicted defendant.' And I believe that judges should consider such consequences in rendering a lawful sentence.

There is a broad range of collateral consequences that serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences. Many - under both federal and state law - attach automatically...

Because of the significance which I attach to the need of the criminal justice system to embrace collateral consequences as a sentencing issue, I write extensively, addressing in tum: (I) The History of Collateral Consequences; (II) The Depth and Breadth of Post-Conviction Statutory and Regulatory Collateral Consequences; (III) The Governing Caselaw; (IV) Ms. Nesbeth's Collateral Consequences and the Balancing of all§ 3553(a) Factors; (V) The Shaping of the Sentence; and (VI) The Responsibilities of Counsel and the Probation Department.

Download X1x43 Nesbeth opinion

May 25, 2016 in Booker in district courts, Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (12)

Monday, May 23, 2016

"An Experimental Study of the Effectiveness of Certificates of Recovery as Collateral Consequence Relief Mechanisms"

The title of this post is the title of this notable new paper now available via SSRN authored by Peter Leasure and Tia Stevens Andersen. Here is the abstract:

Securing stable, quality employment is one of the most robust predictors of desistance from offending. Yet, obtaining gainful employment is difficult for ex-offenders due to the stigma of a criminal record. In recognition of employment-related barriers to re-entry, some state legislatures have created certificates of recovery/relief, which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure employment decisions about certificate-holders are made on a case-by-case basis.

The present study presents the results of the first empirical test of the effectiveness of such certificates. Using an experimental correspondence design, fictitious applicants applied to entry-level jobs advertised in the Columbus metropolitan area using fabricated resumes with identical names, educational backgrounds, employment experience, and skills. Because the only differences between the resumes were the type of criminal record and the presence of a Certificate of Qualification for Employment (CQE), the results isolate the specific impacts of criminal records and certificates on employment opportunities. Results indicate that, for job seekers with a one-year-old felony drug conviction, having a certificate of recovery increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate-holders and their counterparts with clean criminal backgrounds were equally likely to receive an interview invitation or job offer. These promising preliminary results suggest certificates of recovery/relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment.

May 23, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

ProPublica takes deep dive to idenitfy statistical biases in risk assessment software

Propublica-logoThe fine folks at ProPublica have this new important piece of investigative journalism about risk assessment tools.  The piece is headlined "Machine Bias: There’s software used across the country to predict future criminals. And it’s biased against blacks." Here is an extended excerpt, with links from the original:

[R]isk assessments are increasingly common in courtrooms across the nation. They are used to inform decisions about who can be set free at every stage of the criminal justice system, from assigning bond amounts ... to even more fundamental decisions about defendants’ freedom.  In Arizona, Colorado, Delaware, Kentucky, Louisiana, Oklahoma, Virginia, Washington and Wisconsin, the results of such assessments are given to judges during criminal sentencing.

Rating a defendant’s risk of future crime is often done in conjunction with an evaluation of a defendant’s rehabilitation needs. The Justice Department’s National Institute of Corrections now encourages the use of such combined assessments at every stage of the criminal justice process. And a landmark sentencing reform bill currently pending in Congress would mandate the use of such assessments in federal prisons.

In 2014, then U.S. Attorney General Eric Holder warned that the risk scores might be injecting bias into the courts. He called for the U.S. Sentencing Commission to study their use. “Although these measures were crafted with the best of intentions, I am concerned that they inadvertently undermine our efforts to ensure individualized and equal justice,” he said, adding, “they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.” 

The sentencing commission did not, however, launch a study of risk scores.  So ProPublica did, as part of a larger examination of the powerful, largely hidden effect of algorithms in American life.

We obtained the risk scores assigned to more than 7,000 people arrested in Broward County, Florida, in 2013 and 2014 and checked to see how many were charged with new crimes over the next two years, the same benchmark used by the creators of the algorithm.   The score proved remarkably unreliable in forecasting violent crime: Only 20 percent of the people predicted to commit violent crimes actually went on to do so.

When a full range of crimes were taken into account — including misdemeanors such as driving with an expired license — the algorithm was somewhat more accurate than a coin flip. Of those deemed likely to re-offend, 61 percent were arrested for any subsequent crimes within two years.

We also turned up significant racial disparities, just as Holder feared. In forecasting who would re-offend, the algorithm made mistakes with black and white defendants at roughly the same rate but in very different ways.

  • The formula was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.
  • White defendants were mislabeled as low risk more often than black defendants.

Could this disparity be explained by defendants’ prior crimes or the type of crimes they were arrested for? No. We ran a statistical test that isolated the effect of race from criminal history and recidivism, as well as from defendants’ age and gender. Black defendants were still 77 percent more likely to be pegged as at higher risk of committing a future violent crime and 45 percent more likely to be predicted to commit a future crime of any kind. (Read our analysis.)

The algorithm used to create the Florida risk scores is a product of a for-profit company, Northpointe. The company disputes our analysis.  In a letter, it criticized ProPublica’s methodology and defended the accuracy of its test: “Northpointe does not agree that the results of your analysis, or the claims being made based upon that analysis, are correct or that they accurately reflect the outcomes from the application of the model.”

Northpointe’s software is among the most widely used assessment tools in the country. The company does not publicly disclose the calculations used to arrive at defendants’ risk scores, so it is not possible for either defendants or the public to see what might be driving the disparity. (On Sunday, Northpointe gave ProPublica the basics of its future-crime formula — which includes factors such as education levels, and whether a defendant has a job. It did not share the specific calculations, which it said are proprietary.)

May 23, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Saturday, May 21, 2016

"Trespass, Not Fraud: The Need for New Sentencing Guidelines in CFAA Cases"

The title of this post is the title of this new paper authored by Orin Kerr now available via SSRN. Here is the abstract:

This article argues that the existing regime for sentencing violations of the Computer Fraud and Abuse Act (CFAA) is based on a conceptual error that often leads to improper sentencing recommendations. The Federal Sentencing Guidelines treat CFAA violations as economic crimes.  Most CFAA crimes are rooted in trespass, however, not economic loss such as fraud crimes.  The difference is significant.  The economic crimes framework now in place leads guidelines calculations to focus too much on economic loss and not enough on the circumstances of the crime.  The article concludes by sketching out a new and better way to calculate sentencing recommendations in CFAA cases.

May 21, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (0)

Thursday, May 19, 2016

"Criminal Justice: The Real Reasons for Reform"

The title of this post is the headline of this effective new National Review commentary authored by Vikrant Reddy, a senior research fellow at the Charles Koch Institute. The piece's subheadline highlights its themes: "There’s no reason to exaggerate the need for it; the true state of affairs is bad enough."  And here is how the piece starts and ends:

For all public-policy ideas, there are good arguments and there are bad arguments. The bad arguments sometimes carry flash and sizzle, but they should be resisted. Criminal-justice reform — an issue many prominent conservatives have begun to champion — is particularly rife with bad arguments, but that is no reason to ignore the good ones. In a recent piece in RealClearPolicy, the conservative writer Sean Kennedy expertly filleted some of the worst arguments made by overzealous criminal-justice reformers on both the left and the right.  But his takedown was not an argument against thoughtful reform efforts that have improved public safety, saved taxpayer dollars, and advanced individual dignity....

The broadly accepted view among criminologists is that incarceration does bring down crime rates, but it is a tool with diminishing marginal returns.  At a certain point, if the goal is to decrease crime, each additional tax dollar is better spent on law enforcement and prevention.  Indeed, there is even a point at which incarceration becomes criminogenic, causing more crime than it stops.  This happens because, as noted above, some petty criminals spend lengthy stints in prison and emerge with limited reentry options and having learned more bad habits.

The upshot of all of this is simple. First, whether or not America has the world’s highest incarceration rate, it certainly has a rate vastly higher than that of any comparable Western democracy. Second, a slight majority of the prison population consists of violent offenders, but this is hardly an argument for ignoring criminal-justice reforms that would (1) reduce the number of non-violent offenders behind bars and (2) better direct resources at preventing violent crime.  Finally, reformers should not forget that our high rates of incarceration, in certain ways, make society less safe, and public-safety considerations must be central to any discussion of criminal-justice reform.

Those are the good arguments in support of criminal-justice reform — and they remain good arguments even when some are making weak arguments.

Of course, not everyone who gets published in the National Review is advocating for sentencing reforms, as evidence by these other two notable recent pieces to be found there:

"Why Trump Should Oppose ‘Criminal-Justice Reform’" by Jeffrey Anderson

"Criminals are unicorns: And that’s why it is so difficult to stop them" by Kevin Williamson

May 19, 2016 in Campaign 2016 and sentencing issues, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Notable sentencing elements in Oklahoma bill making any and all abortions a felony subject to mandatory imprisonment of at least one year

As reported in this new Washington Post piece, headlined "Oklahoma legislature passes bill making it a felony to perform abortions," legislators in the Sooner State have now sent to the Governor a piece of legislation designed to test the enduring constitutional viability of Roe v. Wade sooner rather than later.  Here are the basics (with the sentencing portion that caught my eye highlighted):

Lawmakers in Oklahoma approved a bill Thursday that would make it a felony for anyone to perform an abortion and revoke the medical licenses of any physician who assists in such a procedure. This sweeping measure, which opponents have described as unconstitutional and unprecedented, was sent to Gov. Mary Fallin (R) for her signature.

Fallin has five days to decide whether to sign the bill, and her office did not immediately respond to a request Thursday about her plans. The Oklahoma bill is the first such measure of its kind, according to the Center for Reproductive Rights, which says that other states seeking to ban abortion have simply banned the procedure rather than attaching penalties like this.

According to the bill, anyone who performs or induces an abortion will be guilty of a felony and punished with between one and three years in the state penitentiary. The bill also says that any physician who participates in an abortion will be “prohibited from obtaining or renewing a license to practice medicine in this state.”

The bill passed the Oklahoma House of Representatives with a vote of 59-to-9 last month. On Thursday, the state’s senate passed it with a vote of 33-to-12. State Sen. Nathan Dahm, a Republican who represents Tulsa County, told the Associated Press he hopes the Oklahoma measure could eventually lead to the overturning of Roe v. Wade, the landmark 1973 Supreme Court decision that recognized a woman’s right to an abortion.

The Oklahoma State Medical Association, which has called the measure “troubling,” said it would not take a position on the legality of abortion. However, the group said that it would “oppose legislation that is designed to intimidate physicians or override their medical judgment.”

Ever the sentencing nerd, I found it interesting and notable that Oklahoma would seek to outlaw abortion and make it a felony offense, but then attach to it a mandatory minimum prison sentence of only one year and a mandatory prison maximum of three years. After a little digging, I found the full text of the passed Oklahoma bill going to the Gov here, and I discovered these intriguing criminalization/sentencing terms used to apply only to a prohibition on abortions being performed by anyone other than a licensed physician.  But the new bill, as shown below, deletes the language that allows licensed physicians to be excluded from this criminal prohibition:

SECTION 3. AMENDATORY 63 O.S. 2011, Section 1-731, is amended to read as follows:

Section 1-731. No person shall perform or induce an abortion upon a pregnant woman unless that person is a physician licensed to practice medicine in the State of Oklahoma. Any person violating this section shall be guilty of a felony punishable by imprisonment for not less than one (1) year nor more than three (3) years in the State Penitentiary.

Prior (arguably) related post:

May 19, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Tuesday, May 17, 2016

Noting that different prosecutors have notably different opinions on the SRCA

ImagesThis lengthy new Daily Signal article, headlined "Is It Time for Criminal Justice Reform?  2 Law Enforcement Groups Are at Odds," details that the heads of the National District Attorneys Association and of the National Association of Assistant U.S. Attorneys have taken different positions on the leading statutory sentencing reform proposal in Congress. I recommend the piece in full, and here are excerpts:

While the unusual coalition of President Barack Obama and conservative groups hold out hope for the chance at what they call the most meaningful reform to criminal sentencing laws in a generation, frontline law enforcement officials are debating what the changes would mean for their communities.

Steven Cook, whose organization represents more than 5,500 assistant United States attorneys, believes Congress’ attempts to reduce prison sentences for certain low-level offenders will “substantially harm” law enforcement’s ability to “dismantle and disrupt drug trafficking organizations.”

William Fitzpatrick, the president of the official body representing state-level district attorneys across the U.S., views the issue differently, recently writing to congressional leaders that a Senate plan to reduce sentences for drug crimes allows “lower level offenders a chance for redemption.”

Cook and Fitzpatrick are two veteran law enforcement officials with vastly different jobs, but they have outsized roles in a debate over criminal justice reform with high stakes for the people they represent — not to mention the thousands of offenders who could benefit from changes to sentencing laws.

Fitzpatrick made headlines late last month when he authored a letter — on behalf of the National District Attorneys Association — to Senate leaders Mitch McConnell, R-Ky., and Harry Reid, D-Nev., expressing support for compromise legislation meant to reduce mandatory minimum sentences for low-level drug offenders. That endorsement has encouraged other law enforcement groups to get on board, with both the International Association of Chiefs of Police and Major County Sheriffs’ Association announcing their support last week....

But Cook, and his National Association of Assistant U.S. Attorneys, remain opposed to the legislation, and he and the organization have the ear of still skeptical lawmakers like Sens. Tom Cotton, R-Ark.; Jeff Sessions, R-Ala.; and David Perdue, R-Ga.  “The notion we should save the American people money by releasing these repeat drug traffickers — and to take tools away from prosecutors needed to successfully prosecute them — is a breach of the fundamental responsibility that the federal government has to protect its citizens,” Cook told The Daily Signal.

Cook and Fitzpatrick know each other well, and have been in frequent communication about their positions on the Sentencing Reform and Corrections Act, as the Senate’s legislation is known (although Cook says he was “very surprised” when Fitzpatrick endorsed the new bill).  Cook has served as an assistant U.S. attorney in the Eastern District of Tennessee for the last 29 years. Fitzpatrick is the district attorney for Onondaga County in New York, a position he’s held for 24 years.

McConnell is ultimately responsible for deciding whether to allow the full Senate to vote on the bill.  In weighing his decision, McConnell is no doubt considering both sides of the argument communicated by Cook and Fitzpatrick.

As most compromises go, the legislation’s actual provisions are relatively modest.  The bill aims to reduce certain mandatory minimum prison sentences created in the 1980s and ’90s during the war on drugs, which are laws that require binding prison terms of a particular length, and designed to promote consistency in punishment.  Critics charge these laws have proven to be inflexible, and, by limiting judge’s discretion to rule on the specifics of a case, have led to unfair punishments for lesser offenders.

“The number one priority of the Sentencing Reform and Corrections Act is the promotion of public safety,” Sen. Mike Lee, R-Utah, a bill sponsor, told The Daily Signal.  “Our criminal justice system is undermined when punishment delivered by the government does not fit the crime.  Our bill better protects the American people by bringing balance back to federal sentencing.”

The bill, for example, would reduce the mandatory prison sentence required for drug offenders with two or more “serious violent felony” or “serious drug felony” convictions from life without parole, to 25 years. The bill’s authors adjusted this provision, and others, so that it does not allow violent offenders from being able to petition a judge for a retroactive early release.  “To say a third-time drug offender gets 25 years instead of life, is that going to impact public safety?” Fitzpatrick said. “Not in my judgment. If you are lucky, you get 75 years on planet Earth.  If you take a third of a person’s life away from him or her, that is not what I would call a slap on the wrist.  In this society, we can survive safely in giving someone 25 to 30 years as opposed to life.”...

Still, for people who view drug trafficking as an inherently violent crime, as Cook does, the reform would reduce the punishment for offenders who have done more than possess and use drugs. “We are not prosecuting drug users in federal court,” Cook said. “This whole notion of low-level nonviolent drug offenders is wrong because that’s not who is coming into federal prison.  We are dealing with dismantling large drug trafficking organizations.”...

According to Families Against Mandatory Minimums, a nonprofit advocating for sentencing reform, 92 percent of the 20,600 federal drug offenders sentenced in fiscal year 2015 did not play a leadership or management role in the offense, and nearly half had little or no prior criminal record.

Even so, Cook contends that prosecutors would lose a major leverage tool with weakened mandatory minimums, making it harder for them to get cooperation from defendants who would help them dismantle drug trafficking organizations.  “It’s absolutely right that it [mandatory minimums] encourage people to cooperate with law enforcement officials and identify others involved in a conspiracy,” Cook said.  “There are strong incentives for offenders to not help us identify other participants, and this is the only tool we’ve got.  These are not easy people to deal with. They understand one thing, and that is how long they will be in prison.”

Fitzpatrick counters that prosecutors still could effectively do their jobs with less severe mandatory minimum sentences.  “There will always be the give and take of plea bargaining and trying to get people to cooperate,” Fitzpatrick said.  “I don’t think this statute undermines that, not when high-level offenders will still get significant prison time.”

May 17, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5)

"How to solve the biggest issue holding up criminal justice reform: Republicans and Democrats can't agree on 'mens rea' reform. Here's a middle ground."

The title of this post is the headline of this notable new Politico commentary authored by Professor Alex Sarch. Here are excerpts:

Despite gridlock and the distraction of a presidential election, Congress hoped to pass legislation this year that would overhaul our flawed criminal justice system. But with the election approaching, that hope is rapidly disappearing over disagreements on one controversial issue: “mens rea reform.”

“Mens rea” — Latin for “guilty mind” — refers to requirements in criminal law that concern a defendant’s mental state, like the intent to cause harm or knowledge of what one was doing. Republicans have demanded that criminal justice reform also make such requirements in federal law stricter, forcing prosecutors in many cases to prove that defendants knew they were breaking the law. Democrats have balked at the proposed reforms, arguing that they would make it much harder to prosecute corporate executives for white-collar crimes.

Both sides have a point. Mens rea reform can increase clarity in the law and make unfair prosecutions less likely. But the Republican proposals, in both the House and Senate, are so strict that they would insulate many highly culpable actors from conviction. Instead of allowing the mens rea issue to derail criminal justice reform, lawmakers should agree on a middle ground that imposes a simple default mens rea requirement — knowledge of the facts constituting the offense. Such an agreement would improve our criminal law and pave the way for comprehensive criminal justice reform....

Late last year, Republicans introduced bills in the House and Senate to reform the mens rea requirements in federal law. But both bills have significant flaws that may actually create more confusion and protect culpable actors. Since courts already presume that criminal statutes include a mens rea requirement, an ill-conceived mens rea policy would be worse than the status quo.

The Senate bill would make it too hard to convict culpable actors because it says that for crimes without an explicit mens rea requirement, prosecutors must prove willfulness — defined as “knowledge that the person’s conduct was unlawful.” This standard has scary implications.... [W]hy should we immunize the bank executive who knew full well he was issuing misleading public statements, but who just happened to be unsure whether his actions were criminal (perhaps because he didn’t make time to research it)? For this reason, Department of Justice officials and other policy groups have criticized the proposed mens rea reform bills for making it harder to prosecute corporate crime.

The Senate bill does include an important exception for statutes to which Congress affirmatively intended no mental state requirement to apply. Moreover, the bill would not change any mental state elements established by Supreme Court precedent (though notably not precedent from Federal Courts of Appeals). However, these provisions do not make up for the bill’s dangerous new willfulness standard.

The House bill has been criticized as confusing, but it is a less extreme proposal than the Senate bill. It generally requires only knowledge of the facts constituting the offense as the default mental state requirement. In addition, when it comes to crimes that a reasonable person would not know to be illegal — largely crimes in technical areas like securities, tax or environmental law — the government would also have to prove that “the defendant knew, or had reason to believe, the conduct was unlawful.” In other words, it would have to show that they 1) knew the facts constituting the offense and 2) should have known their conduct was illegal. This means that mere negligence as to illegality would suffice for these crimes.

So for a bank executive accused of accounting fraud, for example, the government would only have to show that she 1) knew what she was doing (i.e., making false statements) and 2) should have known — based on her experience and professional role — that her actions were illegal.... However, the House bill has two problems. First, unlike the Senate bill, it does not make exceptions for statutes that courts have already interpreted to include a mens rea element or for statutes that Congress clearly intended to have no mental state requirement. Second, the bill makes it easier for culpable actors to escape liability by claiming ignorance of the law. Those accused of a technical crime could avoid punishment by claiming they didn’t realize their actions were illegal and that it wasn’t their responsibility to find out.

However, these problems can easily be fixed: Congress should add exceptions to the House bill and adopt regular knowledge as the default mens rea. Effectively, this deletes the second requirement from the House bill. In other words, for technical crimes, the government would not have to prove a defendant should have known his conduct was illegal, just that it was illegal and that the defendant knew the circumstances of the action. This knowledge standard would not make ignorance of the law any kind of excuse. Such a modest proposal should be an acceptable compromise, as it is only a small departure from the House bill. Republicans are right that the lack of clear mental state requirements in federal statutes lets courts interpret the law in uneven and unpredictable ways. But their proposed reforms would make it too hard to convict culpable actors. Instead, lawmakers should agree on a simple default mens rea — like the House bill’s basic requirement of knowledge of the facts. Such changes would provide clarity for courts and break the political logjam blocking criminal justice reform.

Though I appreciate this effort to find a mens rea middle ground that might help create more consensus on criminal justice reforms in Congress, I continue to feel strongly that those who oppose the incorporation of a high mens rea requirement in federal criminal laws to be misguided. Put simply, I really do not see any "scary implications" of having a high mens rea requirement for federal criminal offenses given that our massive regulatory state already has no shortage of civil laws (with significant penalties) that do not require showing mens rea.

May 17, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (9)

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.

May 15, 2016 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

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.”

May 15, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (9)

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.

May 14, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9)

"Inside a prison where inmates can actually vote for president"

160504-voting-in-prison1The 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.”

May 14, 2016 in Collateral consequences, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Friday, May 13, 2016

"Was 1960'S Liberalism the Cause of Today's Overincarceration Crisis?"

9780674737235The 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.

May 13, 2016 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

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.

May 11, 2016 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

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.

May 9, 2016 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10)

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.

May 8, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, May 06, 2016

Commissioner of U.S. Commission on Civil Rights expresses concerns to Senator Grassley about efforts to reduce federal prison sentences

Kirsanow,PA 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.

Download Letter re Sentencing Reform Act May 5 2016

May 6, 2016 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (9)

Thursday, May 05, 2016

"Congress Should Follow the Red States’ Lead on Criminal-Justice Reform"

DownloadThe 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.

May 5, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

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.

May 4, 2016 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

"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

Rorschach-test_00411577The 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.

May 3, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Monday, May 02, 2016

Another prominent elderly corrupt politician presenting dynamic federal sentencing issues

NY-DK527_NYCHAR_11U_20150122183914This 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.

May 2, 2016 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

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:

Prior related posts:

April 28, 2016 in Collateral consequences, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

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.

April 27, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Tuesday, April 26, 2016

You be the judge for "sentencing supernova": what punishment for former House speaker Dennis Hastert for structuring (and sex) offenses?

MassiveStarLifecycleI 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"

Roadmap_to_reentry_slide-2The 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

AbstractSentencing 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.

April 25, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (1)

Sunday, April 24, 2016

American Enterprise Institute leader explains why we need to reform "the status quo in criminal justice"

DownloadArthur 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.)

White House policymakers, AEI scholars, and the Brennan Center’s experts hold a wide range of views on the substance of criminal justice reform.  What we share in common is a passionate desire to build a system that more effectively serves both the human dignity and human potential of vulnerable people.  And let’s be honest — there are few subjects in American life that are so clearly misaligned with these twin moral goals as the status quo in criminal justice.

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:

April 24, 2016 in Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Saturday, April 23, 2016

White House Counsel on Economic Advisors releases big report providing "Economic Perspectives on Incarceration and the Criminal Justice System"

Download (2)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.

April 23, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (3)

"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.”

April 23, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)