Monday, July 14, 2014

Third Circuit approves forcible medication to enable federal sentencing

While I was on the road last week, the Third Circuit issued an interesting opinion in US v. Cruz, No. 13-4378 (3d Cir. July 10, 2014) (available here), which affirmed a district court's decision to forcible medicate a defendant in order to facilitate his federal sentencing. This opening paragraph and another section from the heart of the opinion provides highlights of the unanimous panel ruling:

We here confront an issue of first impression: whether the Government, pursuant to the Supreme Court’s decision in United States v. Sell, 539 U.S. 166 (2003), can have a sufficiently important interest in forcibly medicating a defendant to restore his mental competency and render him fit to proceed with sentencing.  Under the facts presented in this case, we answer that question in the affirmative and we will affirm....

[I]n Booker the Supreme Court highlighted governmental interests that are inherent in sentencing proceedings.  It repeatedly emphasized that the sentencing scheme put in place by the Sentencing Act and Sentencing Guidelines “diminishes sentencing disparity” and “move[s] the sentencing system in the direction of increased uniformity.” Booker, 543 U.S. at 250, 253.  It also repeatedly emphasized that sentencing uniformity depends in critical part on the relationship between punishment and “the real conduct that underlies the crime of conviction.” Id. at 250; see id. at 251 (“Judges have long looked to real conduct when sentencing,” and often rely on “a presentence report, prepared by a probation officer, for information (often unavailable until after the trial) relevant to the manner in which the convicted offender committed the crime of conviction.”); id. at 253-54 (“[I]ncreased uniformity . . . does not consist simply of similar sentences for those convicted of violations of the same statute . . . . It consists, more importantly, of similar relationships between sentences and real conduct, relationships that Congress’ [sic] sentencing statues helped to advance[.]”).

The Government cannot achieve the sort of uniformity contemplated in Booker without formal sentencing proceedings.  A criminal defendant enjoys the right to allocute at sentencing, and he also enjoys the right to object to the PSR, to argue for favorable sentencing variances and downward departures from the Sentencing Guidelines, and to oppose any arguments favoring upward variances or departures from the Guidelines. Those rights, which to a great degree reflect the defendant’s “real conduct,” id. at 250, necessarily require the defendant to both actively participate in sentencing proceedings and inform his attorney’s actions.  Because an incompetent defendant is presumed unable to take those actions, the Government maintains an important interest in restoring his mental competency and enabling him to do so.

July 14, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Saturday, July 12, 2014

"4 Reasons Conservatives Are Embracing Prison Reform"

The title of this post is the headline of this new commentary piece by Christian Piatt appearing in Time which includes a religious perspective as well as a political one. Much of the discussion will be familiar to regular readers, but here are a few excerpts of not: 

Criminal sentencing certainly has been one of those divisive social issues among Christians, with many progressives calling for more leniency on nonviolent crimes, and conservatives embracing a “zero tolerance” ethos....

Only recently have the number of incarcerated people within our borders begun to decline, and it’s in part due to a shift in the way those who have championed a hard-nosed approach to sentencing are reframing their thinking. In some respects, the reasons are logistical and economic; for others, the change of heart is informed particularly by their understanding of scripture and the mandates of the Gospel....

[H]ere are four ideas around which Christians – and non-Christians – from both the left and right are coming together.

Reform makes good financial sense. ...

Reform reduces government’s role in our lives. ...

Second Chances are Biblical. ...

Thinking on “paying our debt to society” is shifting....

Warehousing nonviolent offenders is still big business in the United States, which means that people with significant influence are intent on keeping things more or less as they already are. And certainly not all on the political and religious right agree with the points above. But enough conservatives are breaking rank to begin to form coalitions with the center and left, so that real reform becomes an increasing possibility.

July 12, 2014 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, July 11, 2014

Second Circuit finds unreasonable probation sentence based on "cost of incarceration"

A helpful reader made sure I did not miss while on the road an interesting Second Circuit opinion in US v. Park, No. 13‐4142 (2d Cir. July 9, 2014) (available here), concerning reasonableness review and a sentenced reduced based on the cost of imprisonment.  Here is the heart of one part of the per curiam panel decision:

After a review of the record, we conclude that the District Court committed procedural error in imposing a term of probation in lieu of imprisonment for two reasons.  First, the only sentencing factor the District Court deemed relevant was the cost of incarceration to the government and the economic problems allegedly caused by the government shut‐down.  As the Court clearly announced, “I am not going to put him in jail only because of the economic plight that we are facing today.” After emphasizing that its sentencing decision was based solely upon this consideration, the Court then rebuffed defense counsel’s suggestion to “supplement the record,” asserting, “[i]f we have to resentence him, we will later.”  The Court also stated that if the Court of Appeals were to reverse, it would “consider all of these factors” at resentencing, clearly indicating that it did not consider the relevant factors in the first instance.  The Court therefore committed procedural error by refusing to consider the § 3553(a) factors in deciding what is an appropriate sentence.

Second, and equally problematic, is that the cost of incarceration to the government—the Court’s sole justification for imposing a term of probation rather than incarceration — is not a relevant sentencing factor under the applicable statutes.  We agree with the Eighth Circuit that, based on the plain language of § 3553(a), no sentencing factor can reasonably be read to encompass the cost of incarceration.  Nor does the statute permit the sentencing court to balance the cost of incarceration against the sentencing goals enumerated in § 3553(a).

Park is a must-read for post-Booker sentencing fans because it includes lots of important phrases about both procedural and substantive reasonableness review.  The Park opinion also talks up the importance of deterrence in one white-collar sentencing, noting "general  deterrence  occupies  an  especially  important role in criminal tax offenses, as criminal tax prosecutions  are relatively rare."

July 11, 2014 in Booker in district courts, Booker in the Circuits, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1) | TrackBack

Thursday, July 10, 2014

"The Consequences of Error in Criminal Justice"

The title of this post is the title of this new article by Daniel Epps now available via SSRN. Here is the abstract:

"Better that ten guilty persons escape, than that one innocent suffer," William Blackstone’s famous adage, stands for a powerful idea in the criminal law: that it’s essential to minimize wrongly convicting the innocent even at the expense of overall accuracy. This "Blackstone principle" accords with most people’s deeply felt intuitions about criminal justice.

This Article challenges that fundamental precept. It begins by situating the Blackstone principle in the history of Anglo-American criminal law. That history shows how the principle gained prominence — most notably, because in Blackstone’s time and earlier death was the exclusive penalty for many crimes — but provides no compelling justification today.

The leading modern argument for the Blackstone principle is that false convictions are simply more costly than false acquittals. But that argument is incomplete, because it focuses myopically on the costs of errors in individual cases. A complete analysis of the Blackstone principle requires taking stock of its dynamic effects on the criminal justice system as a whole. The Article conducts that analysis, which reveals two significant but previously unrecognized draw-backs of the Blackstone principle: First, its benefits to innocent defendants are smaller than usually assumed; it could even make those defendants worse off. Second, the principle reinforces a widely recognized political process failure in criminal justice, hurting not just defendants but society as a whole. The magnitude of these effects is uncertain, but they could more than cancel out the principle’s putative benefits.

The Article then analyzes alternative justifications for the Blackstone principle. None is satisfactory; each rests on dubious empirical premises, logical errors, or controversial premises. There is thus no fully persuasive justification for the principle. Rejecting the Blackstone principle would require us to re-think — although not necessarily redesign — various aspects of our criminal-procedure system.

July 10, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Tuesday, July 08, 2014

Making a spiritual case for abolishing the death penalty

Howard Falco, whose bio describes his as a "Self-Empowerment Expert" and "Spiritual Teacher," has this new commentary at The Huffington Post headlined "The Insanity of the Death Penalty." The piece is an interesting read, and here is an excerpt:

The single biggest reason to end the death penalty can be summed up in a quote by Albert Einstein, "No problem can be solved from the same consciousness that created it."

Simply killing under the rationalization of "justice" does not change the intended outcome of deterring anymore killing. It actually exacerbates the problem. What the death penalty in place says is that on some level of our nation's consciousness, killing is seen as "okay." This justification is the exact same justification used in the mind of a killer. They have convinced themselves in some way that it is ok in their mind to kill their intended victim.

In order to change the behavior that we admonish so greatly we must as a society rise above this way of thinking. As Gandhi famously said, "We must be the change we want to see in the world."

Every force we put out into the world, whether as an individual or a nation, has an equal and opposite force. We are learning this more than ever in the world of quantum physics and the understanding it reveals of how our thoughts and actions affect every aspect of our reality. These messages are not new however. They have been coming to us since biblical days.

Commandment number six, "Thou shalt not kill."

Luke 6:31 "As you wish other to do to you, do so to them."

Peter 3:8-10 "Finally, all of you, be like-minded, be sympathetic, love one another, be compassionate and humble. Do not repay evil with evil or insult with insult. On the contrary, repay evil with blessing, because to this you were called so that you may inherit a blessing."

Besides biblical messaging there have been all sorts of common sense and simple wisdom sayings that we have heard for years from our teachers and parents such as the profound and extremely appropriate saying, "Two wrongs do not make a right."

The energy we put out as a civilized nation has a direct effect on what we experience as a nation. We must become more conscious of where we have become hypocrites to our own causes.

July 8, 2014 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack

Monday, July 07, 2014

"Do Residency Bans Drive Sex Offenders Underground?"

The very important question in the title of this post is the headline of this discussion (with lots of links) by Steven Yoder at The Crime Report. Here is an excerpt:

California hasn’t been alone in its tough approach to ensuring that formerly incarcerated sex offenders pose no danger after they are released. As part of a wave of new sex offender laws starting in the mid-1990s, about 30 states and thousands of cities and towns passed such residency restrictions — prompting in turn a pushback from civil liberties advocates, state legislators and registrants themselves who argued the restrictions were not only unduly harsh but counterproductive.

But a court decision in Colorado last year could mark a shift in momentum. In the Colorado case, Stephen Ryals, a high school soccer coach convicted in 2001 for a consensual sexual relationship with a 17-year-old student, was sentenced to seven years’ probation and put on the state sex offender registry.   Eleven years later, in 2012, he and his wife bought a house in the city of Englewood. But the police department told him he couldn’t live there because of a city ordinance prohibiting sex offenders from living within 2,000 feet of schools, parks and playgrounds — a law that effectively made 99 percent of its homes and rentals off limits to offenders. Englewood police also warned offenders that even in the open one percent, if they contacted a homeowner whose property wasn’t for rent or for sale, they could be charged with trespassing.

Ryals sued, and last August a federal court concluded that the city’s ban went too far. The judge ruled that it conflicted with the state’s existing system for managing and reintegrating sex offenders and could encourage other towns and cities to do the same, effectively barring offenders from the entire state. Englewood has appealed, but two of the state’s five other cities that have residence bans have softened their restrictions since the decision....

In California, scores of cities are rolling back their restrictions after an Orange County court ruled last April in favor of registrant Hugo Godinez, who challenged the county over its ordinance barring sex offenders from entering parks.  Godinez, convicted for a misdemeanor sex offense in 2010, was arrested the following year for what he said was mandatory attendance at a company picnic in a county park.  In that case too, a state appeals court decided that the county’s ordinance usurped the state’s authority.  The appeals court ruling was upheld by the state’s highest court.

Since the Godinez decision, 28 California cities that have similar “presence” restrictions, which ban offenders from entering places like libraries and parks, have repealed those rules.  Another 24 say they are revising their ordinances, according to Janice Bellucci, a California attorney.

Since the April decision, Bellucci, who represents the advocacy group California Reform Sex Offender Laws, has sent letters demanding repeal to cities with presence restrictions. She also has sued a dozen other cities that haven’t changed their rules since the decision.

And this year, California’s Supreme Court could make an even bigger ruling — whether to toss the state’s 2,000-foot law itself.  A Los Angeles County Superior Court judge found it unconstitutional in 2010, but the city appealed.  The judge cited an increase in homelessness among registrants as a key reason.  Statewide, the number of homeless registrants has doubled since the law passed in 2006, according to the 2011 Sex Offender Management Board report.

At least two other states — Rhode Island and New York — have been sued since 2012 over their own residency laws.

One finding in the Ryals’ case in Colorado case could resonate in other states. The judge found compelling a 2009 white paper by Colorado’s Sex Offender Management Board concluding that residency bans don’t lower recidivism and could actually increase the risk to the public. According to the paper, that’s because they drive offenders underground or toward homelessness, making them harder for police and probation officers to track....

Those 2009 findings led the Colorado board to go further in a report this January, which recommended that state lawmakers consider legislation prohibiting cities and towns from enacting their own offender residency rules.

Two other states have moved in that direction. The Kansas legislature banned local residency restrictions in 2010.  And in New Hampshire, the state House of Representatives has twice approved a bill that would bar local ordinances, though it’s died both times in the state Senate.  Bellucci argues that there’s more to come in other states.  The “pendulum of punishment,” she claims, is starting to swing the other way.

“For a long time, ever-harsher sex offender laws were being passed and there was no one opposing them,” she told The Crime Report. “After more than a few lawsuits, elected officials are realizing that there’s a downside to this.”

July 7, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack

Friday, July 04, 2014

Another July 4th open thread seeking comments on liberty and freedom in the USA

Blogging is likely to be light this holiday weekend as I am on the road visiting family.  But, as I has happened before, the morning of July 4 makes me eager to highlight some prior Independence Day blogging and to urge readers to use this space to comment on the state of liberty and freedom in the United States.

Some prior July 4 posts:

Obviously, the last couple of years I have not done special July-4th themed posts, but I sometimes think all of my posts on crime and punishment are infused with inherent Americana.

July 4, 2014 in Purposes of Punishment and Sentencing, Recap posts | Permalink | Comments (11) | TrackBack

Thursday, July 03, 2014

Fascinating suggestion of "Mitt Romney for drug czar"

The always brilliant and provocative lawprof Mark Osler has this brilliant and provocative new commentary in the Detroit News headlined "Mitt Romney for drug czar." Here is how it starts:

In a series of public appearances, Detroit native Mitt Romney has planted the idea that he might run for president again in 2016. He should resist the idea; that day has passed.

Instead, Romney should apply his experience and passion to public service in a different way: The Mitt Romney who founded Bain Capital and saved the Utah Winter Olympics should be Drug Czar, and use his financial acumen to destroy the narcotics trade without mass incarceration.

In the run-up to the 2012 presidential election, Mitt Romney was celebrated (by Republicans) and eviscerated (by Democrats) for his vocation: building up and tearing down businesses. Regardless of how one views the social utility of this enterprise, no one can dispute that Romney is a smart, passionate, well-educated man who loves public service and was very good at what he did while working for Bain Capital.

Romney’s availability matches up with a special moment for narcotics policy. There is a broad right-left consensus that the stale tactics of the war on drugs failed miserably. It wasted billions of dollars in taxpayer money while failing to limit drug use. Meanwhile, millions of Americans went to prison, and a disproportionate number of them were black thanks to harsh new laws focused on crack cocaine. There was something to offend everyone.

I like this idea sooooo much, I really wonder if it could possibly get any legs inside the Beltway. On all modern drug crime and punishment issues — ranging from marijuana reform in the states to the surge of addiction to opiods and heroin to the reduction of federal drug sentences — the country really needs to widely respected "numbers guy" who could bring a clear-headed business perspective to analyzing the pros and cons of various suggested policy initiatives.  I would trust Mitt Romney to be that guy as much, if not more, than just about anyone else President Obama might place in this role.  

July 3, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Wednesday, July 02, 2014

An (overly?) optimistic account of how GPS technology could "solve" mass incarceration

This recent article from Vox, headlined "Prisons are terrible, and there’s finally a way to get rid of them," praises and promotes efforts to use GPS tracking to reduce US reliance on incarceration. The article strikes me as a bit too optimistic, but it does assembled some research that may justify such optimism.  Here is a snippet from the start of the article that highlights its themes:

So why do prisons exist? In theory, because we need them. They keep bad guys off the street. They give people a reason to not commit crimes. They provide a place where violent or otherwise threatening people can be rehabilitated.

But prisons aren't the only way to accomplish those goals. Technological advancements are, some observers say, making it possible to replace the current system of large-scale imprisonment, in large part, with alternatives that are not as expensive, inhumane, or socially destructive, and which at the same time do a better job of controlling crime. The most promising of these alternatives fits on an ankle.

While the idea of house arrest has been around for millennia, it has always suffered from one key defect as a crime control tool: you can escape. Sure, you could place guards on the homes where prisoners are staying, but it's much easier to secure a prison with a large guard staff than it is a thousand different houses with a guard or two apiece.

Today, we have something better than guards: satellites. The advent of GPS location tracking means it's now possible for authorities to be alerted the second a confinee leaves their home. That not just enables swift response in the event of escape; it deters escape by making clear to detainees that they won't get away with it.

July 2, 2014 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Technocorrections | Permalink | Comments (7) | TrackBack

"Into the Breach: The Case for Robust Noncapital Proportionality Review Under State Constitutions"

The title of this post is the title of this notable piece authored by Samuel Weiss now available via SSRN. Here is the abstract:

The Eighth Amendment forbids cruel and unusual punishments.  The Supreme Court has found in the Amendment a guarantee that punishment be proportionate to the crime. Although the requirement technically applies equally to all punishment, in practice the Court has used the guarantee strictly to regulate capital punishment — a practice it recently extended to life without parole sentences for juveniles — but has abdicated almost entirely on noncapital sentences.

States have authority to regulate excessive punishment under their state constitutions, but most have chosen to interpret their state proportionality clauses in lockstep with the Eighth Amendment.  Even the states that have found greater protection in their constitutions have done so cautiously, striking down only the rare sentence so absurd that the legislature could not possibly have intended the result.

This Note suggests that states should aggressively police the proportionality of noncapital sentences under their state constitutions.  Part I discusses extant noncapital proportionality, both the United States Supreme Court’s Eighth Amendment doctrine and states’ responses to either heighten standards of review or to march in lockstep with the Court.  Part II discusses the primary basis for state courts’ failure to regulate proportionality — that regulating sentences would be intervening into legislative judgment of retributive fit — and its deep flaws.  State courts ignore that criminal codes bear little relation to actual crime and punishment — criminal liability is so broad and sentences so punitive that legislatures have essentially delegated decisions on criminality and sentence length to prosecutors.  Prosecutors, in turn, routinely deliver disproportionate sentences because prosecutors are local political actors who push the actual costs of incarceration onto state governments; because the public pushes for ever-harsher sentences; and because prosecutors deliver trial penalties to defendants who refuse to plead guilty.  Much of the Supreme Court’s cautiousness comes from its broader fear about intervention in state criminal justice systems; this fear is legitimate but should carry no weight with state courts, which are part of state criminal justice systems.  Part III addresses the remaining arguments against aggressive state proportionality review — that states should interpret their parallel provisions in the same manner as the federal provision and that judges are institutionally incompetent to make decisions about comparative blameworthiness.  The Note concludes that states should use their constitutions to pursue aggressive noncapital proportionality review.

July 2, 2014 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, June 27, 2014

"Managing Prisons by the Numbers: Using the Good-Time Laws and Risk-Needs Assessments to Manage the Federal Prison Population"

The title of this post is the title of this timely and valuable new article available via SSRN authored by Paul J. Larkin Jr. of The Heritage Foundation. Here is the abstract:

The criminal justice system directs actors to make predictions about an offender’s likely recidivism. Today, many criminal justice systems use some form of a risk-needs assessment as a classification tool at various stages of the criminal process, especially when deciding where a particular offender will be housed or whether he should be granted credit toward an early release.

Research has shown that risk-needs assessments have valuable predictive power and therefore can be worthwhile tools for making the myriad predictions needed in the federal criminal justice system. Yet, risk-needs assessments also are controversial. Some commentators have criticized them on the ground that they offend equal protection principles.

The Public Safety Enhancement Act (PSEA) and the Recidivism Reduction and Public Safety Act (RRPSA) attempt to navigate the path toward criminal justice reform by directing the Attorney General to study the value and legality of risk-needs assessments. Legislators who choose to pursue correctional reform by revising the back end of the process would find that the PSEA and the RRPSA are valuable efforts to improve the system.

I have been hopeful (but not confident) that the distinct efforts at federal sentencing and corrections reform found in the PSEA and the RRPSA would not get lost in the discussion and debate over the Smarter Sentencing Act. But I keep fearing that controversy over the type of front-end reform involved in the SSA has tended to eclipse the (arguably more pressing and consequential) back-end reforms developed in the PSEA and the RRPSA. I hope this piece help folks continue to appreciate the need and value of both types of reform in the federal system.

June 27, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

New York Times op-ed laments Kettle Falls 5 federal marijuana prosecution

Kettle_falls_signI am pleased to see the op-ed pages of the New York Times giving attention to a remarkable federal drug prosecution mving forward in Washington state.  This foreceful commentary by Timothy Egan, headlined "Lock ’Em Up Nation: Mandatory Sentencing for Medical Marijuana," includes these passages:

[In] ruggedly beautiful, financially struggling eastern third of Washington State ... 70-year-old Larry Harvey, his wife, two family members and a friend are facing mandatory 10-year prison terms for growing medical marijuana — openly and, they thought, legally — on their farm near the little town of Kettle Falls.

To get a sense of the tragic absurdity of this federal prosecution, reaching all the way to the desk of Attorney General Eric H. Holder Jr., consider what will happen next month. Pot stores will open in Washington, selling legal marijuana for the recreational user — per a vote of the people. A few weeks later, the Feds will try to put away the so-called Kettle Falls Five for growing weed on their land to ease their medical maladies....

Harvey is a former long-haul truck driver with a bad knee, spasms of gout and high blood pressure. He says he has no criminal record, and spends much of his time in a wheelchair. His wife, Rhonda Firestack-Harvey, is a retired hairdresser with arthritis and osteoporosis. Mr. Harvey says he takes his wife’s home-baked marijuana confections when the pain in his knee starts to flare. The Harveys thought they were in the clear, growing 68 marijuana plants on their acreage in northeast Washington, one of 22 states allowing legal medical marijuana. (Federal authorities say they are several plants over the limit.)

Their pot garden was a co-op among the four family members and one friend; the marijuana was not for sale or distribution, Mr. Harvey says. “I think these patients were legitimate,” Dr. Greg Carter, who reviewed medical records after the arrest, told The Spokesman-Review of Spokane. “They are pretty normal people. We’re not talking about thugs.”

But the authorities, using all the military tools at their disposal in the exhausted drug war, treated them as big-time narco threats. First, a helicopter spotted the garden from the air. Brilliant, except Harvey himself had painted a huge medical marijuana sign on a plywood board so that his garden, in fact, could be identified as a medical pot plot from the air.

This was followed by two raids. One from eight agents in Kevlar vests. The other from Drug Enforcement Agency officers. They searched the house, confiscating guns, and a little cash in a drawer. The guns are no surprise: Finding someone who does not own a firearm in the Selkirk Mountain country is like finding a Seattleite who doesn’t recycle. Still, the guns were enough to add additional federal charges to an indictment that the family was growing more than the legal limit of plants.

Now, let’s step back. The Harveys live in the congressional district of Representative Cathy McMorris Rodgers, who is part of the House Republican leadership. She loves freedom. You know she loves freedom because she always says so, most recently in a press release touting her efforts to take away people’s health care coverage. “Americans must be protected from out of control government,” she stated.

Well, maybe. Unless that government is trying to take away the freedom of a retired couple growing pot to ease their bodily pains. That freedom is not so good. Astonishingly, in our current toxic political atmosphere, Republicans and Democrats joined together last month to vote, by 219 to 189, to block spending for federal prosecution of medical marijuana in states that allow it. Yaayyy, for freedom. There was one dissent from Washington State’s delegation. Yes, Cathy McMorris Rodgers, standing firm for an out of control government instead of defending one of her freedom-loving constituents....

Trial is set for July 28, and the Harveys can’t use legal medical marijuana as a defense, a judge has ruled. All the government has to prove is that the Harvey family was growing marijuana — a federal crime. If they go to prison for a decade, as the mindless statutes that grew out of the crack-cocaine scare stipulate, they would become part of a federal system where fully half of all inmates are behind bars for drug offenses. And one in four of those crimes involves marijuana.

So remember the Kettle Falls Five when all the legal pot stores and their already legal growing facilities open for business in Washington State next month. There will be silly features about cookies and candy bars laced with pot, and discussions about etiquette, dos and don’ts. The press will cite polls showing that a majority of Americans favor legalizing marijuana, and more than 80 percent feel that way about medical cannabis. But in the eyes of the federal government, these state laws are meaningless.

If Larry Harvey, at the age of 70, with his gout and high blood pressure and bum knee, gets the mandatory 10-year term, he’s likely to die in prison, certainly not the last casualty of the assault on our citizens known as the War on Drugs. For him, freedom is just another word his congresswoman likes to throw around on the Fourth of July.

As I have said before and will be saying again and again as more and more states legalize medical marijuana, there are a number of viable constitutional arguments based in the Eighth Amendment that I think could and should limit the federal prosecution and extreme federal sentencing of defendants like the Kettle Falls 5. I hope these defendants press these arguments aggressively and persistently in the months ahead.

In addition, I am pleased that this op-ed calls out Cathy McMorris Rodgers for failing to be eager to support and defend freedom and family values in this context.  Rep. Rodgers says on her official website here that she has a "passion and determination to protect America’s values -- including family, faith, freedom, opportunity, and responsibility."   I hope she gets often pressed on how these values justify the federal government seeking to imprison the Kettle Falls 5 for many years.

Prior related post:

June 27, 2014 in Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, June 26, 2014

"What Is Criminal Restitution?"

The title of this post is the title of this notable new article by Cortney Lollar now available via SSRN. Here is the abstract:

A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore no longer serves its traditional purpose of disgorging a defendant’s ill-gotten gains. Instead, restitution has become a mechanism of additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections normally attaching to criminal proceedings.

This Article deploys a novel definition of punishment to situate restitution alongside other forms of punishment. Like all forms of punishment, restitution is imposed subsequent to a criminal allegation, pursuant to a statute motivated by morally condemnatory intent, and resulting in a substantial deprivation or obligation. Because restitution has become a form of punishment, this Article argues that judges should recognize criminal restitution for what it is — victim compensation imposed at the state’s request as condemnation for a moral wrong — and extend to defendants in restitution proceedings all the constitutional protections they enjoyed in earlier criminal proceedings. This means submitting restitution to a jury for determination pursuant to the Sixth Amendment, and subjecting it to the excessive-fines analysis of the Eighth Amendment.

June 26, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, June 24, 2014

Others starting to appreciate "Rand Paul, Criminal Justice Hero"

I am very pleased to see this new Slate commentary by Emily Bazelon headlined "Rand Paul, Criminal Justice Hero: The senator from Kentucky wants to give ex-felons the vote even though they won’t vote Republican." The piece not only highlights the credit Senator Paul should be given for his principled approach to criminal justice reform, it also demonstrates why right now he is arguably the most important active criminal justice reformer in the nation.  Here are excerpts:

When libertarian Republicans go on about the “tyranny” of the federal government, as Kentucky Sen. Rand Paul is prone to do, I tune out. But not today. Paul has been talking for a while about how his conception of tyranny extends to long, draconian prison sentences for mostly poor and black offenders. Now he is introducing a bill that would restore voting rights to nonviolent ex-felons in federal elections. This bill is not about to become law any time soon. But give Paul credit for standing on principle even though he and his party would hardly benefit.

If Congress really re-enfranchised ex-cons across the land, it would help Democrats. It would probably be enough to swing a close Senate race in some states—or to push Florida into the D column in a presidential election. In 2010, according to this policy brief by the Sentencing Project, 5.85 million people across the country couldn’t vote because they were either in prison or had a felony record (which in 12 states also disqualifies you at the polls)....

To state the obvious, if these ex-cons voted, they would break for Democrats. “African-American voters are wildly overrepresented in criminal justice populations. African-American voters also historically favor Democratic candidates,” says Christopher Uggen, a sociologist at the University of Minnesota. Uggen and Jeff Manza co-wrote an article for the American Sociological Review in 2002 in which they estimated turnout for disenfranchised ex-cons....

o why is Paul pushing for a bill that could actively hurt his party? “Even if Republicans don’t get more votes, we feel like we’ve done the right thing,” Paul told Politico. This sounds like Paul’s (qualified) support for immigration reform: He’s behind it even though in the short-term, it’s probably a loser for Republicans. I don’t mean to sound naive here about Paul’s motives. He sometimes cultivates renegade Tea Party independence, and I realize that he is also appealing to swing voters: moderates who like it when conservative politicians sound concerned about poor people and minorities. And maybe that’s good for the image of the Republican party overall: Rand Paul, softening agent. Uggen says he did a poll a few years ago and found resounding majority support for letting ex-felons vote. But how many of those people care enough about the issue to vote for Paul based on it? That number has to be tiny. And while it’s possible to argue that Republicans have to move toward immigration reform for their long-term survival, given the rising Latino population and the shrinking white one, felon disenfranchisement just doesn’t have the same grip....

It’s worth pointing out, though, that Paul is the sole sponsor for his bill. In Florida in 2011, Republican Gov. Rick Scott went the other way and tightened voting restrictions on former felons, in spite of criticism about the number of black people he was barring from the polls. Paul has more company from fellow libertarians Ted Cruz and Mike Lee in pushing for sentencing reform. This is the larger fight that felon disenfranchisement is a part of: addressing mass incarceration by lowering or eliminating mandatory minimum sentences, especially for nonviolent drug offenders. “I’m talking about making the criminal justice system fair and giving people a second chance if they served their time,” Paul said in February at a gala for the conservative American Principles Project. Give him, and Cruz and Lee, credit for being part of this push. Sentencing reform has justice on its side and budgetary common sense, too, given the huge sums it takes to keep prisoners locked up for years. Too bad other Republicans won’t support that cause, or go for giving former felons the vote either.

June 24, 2014 in Collateral consequences, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

"Forget Sentencing Equality: Moving from the 'Cracked' Cocaine Debate Toward Particular Purpose Sentencing"

The title of this post is the title of this interesting paper authored by Jelani Jefferson Exum now available via SSRN. Here is the abstract:

While a racial equality-themed discourse has traditionally fueled the crack-versus-powder cocaine sentencing debate, this Article asserts that seeking equality in sentencing outcomes is the wrong goal.  This Article argues that reformers seeking racial equality in sentencing are misguided in using the cocaine sentencing standards as a benchmark of fairness, because the current cocaine sentencing standards do not effectively serve the purposes of punishment.

Rather than focusing on equality, this Article advocates implementing Particular Purpose Sentencing, which involves developing a framework for drug offenses to be analyzed individually and matched with punishments that purposefully address the concerns associated with the particular offense.  Particular Purpose Sentencing also requires that, once sentences are matched to a specific purpose, the outcomes of those sentences be studied to ensure that they are fulfilling their particular sentencing purpose.

This Article analyzes the legislative and judicial limits of basing sentencing reform on racial equality goals, and explores how implementing Particular Purpose Sentencing has the potential to result in more effective and racially equal consequences.  Though this Article introduces Particular Purpose Sentencing using the drug sentencing context, this new sentencing theory can be applied to achieve fairer, more successful sentencing for all offenses.

June 24, 2014 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Sunday, June 22, 2014

New York Times editorial laments stalled federal sentencing reform

Today's New York Times has this lengthy editorial, headlined "Sentencing Reform Runs Aground," expressing justified concerning that bipartisan support for federal sentencing reform has not yet been enough to secure legislative action. Here are excerpts:

Criminal justice reform is one of the rare issues on which there has been bipartisan support in Congress and significant progress toward a legislative solution. Until recently, anyway.

Two bills, each with Republican and Democratic sponsors, were expected to come up for a vote by this summer — one that would reduce lengthy sentences for many low-level drug offenders and another that would give low-risk inmates credit toward early release if they participate in job-training and drug treatment programs. But progress on both bills has stalled, and congressional leaders who were once confident about their chances this year are now looking toward 2015, at the earliest.

Meanwhile, tens of thousands of federal inmates — many of whom have already served years of unjustly long drug sentences — continue to sit in overstuffed prisons, wasting both their lives and taxpayer dollars at no demonstrable benefit to public safety....

So why the delay? One major factor has been resistance from members of the old guard, who refuse to let go of their tough-on-crime mind-set. In May, three senior Republican senators — Charles Grassley of Iowa, John Cornyn of Texas and Jeff Sessions of Alabama — came out against the sentencing reductions, arguing that mandatory minimums are only used for the highest-level drug traffickers. This assertion is contradicted by data from the United States Sentencing Commission, which found that 40 percent of federal drug defendants were couriers or low-level dealers.

Another factor was the Obama administration’s April announcement that it would consider clemency for hundreds, if not thousands, of inmates currently serving time under older, harsher drug laws. Republicans complained that this — along with other executive actions on criminal justice by Mr. Obama and Attorney General Eric Holder Jr. — took the wind out of reform’s sails.

But with the exception of some old-line prosecutors and resistant lawmakers, everyone still agrees on the need for extensive reform. The other branches of the federal government have begun to do their part: Federal judges across the country have spoken out against the mindlessness of mandatory minimums. The sentencing commission voted in April to reduce many drug sentencing guidelines. And the Justice Department under Mr. Holder has taken multiple steps to combat the harsh and often racially discriminatory effects of those laws.

The public is on board too. According to a recent Pew survey, 67 percent say the government should focus more on treating drug users than on prosecuting them.

Some members of Congress get it. On the right, the charge for reform has been led by Rand Paul of Kentucky, Mike Lee of Utah, Ted Cruz of Texas and Jeff Flake of Arizona. Yet the prospect of reform has become more precarious, even as the need for it has become more urgent.

Judicial pronouncements and executive orders only go so far. It is long past time for Congress to do its job and change these outdated, ineffective and unjust laws.

June 22, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, June 20, 2014

"Ignoring Issues of Morality or Convicting the Innocent, Is Capital Punishment a Good Idea or a Bad Idea?"

The question in the title of this post is the title of this intriguing little essay by Ron Allen now available via SSRN. Here is the abstract:

The conventional debate over the risk of executing an innocent person is examined and shown to be vacuous.  More innocent lives, by orders of magnitude, are lost through incarceration (the alternative to a death penalty) than could possibly have result from executing innocent defendants.  This is an instance of the deadly dilemma of governing, which inevitably involves tradeoffs of social goods and costs, often of precisely the same variable.

June 20, 2014 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack

"A Suggested Minor Refinement of Miller v. Alabama"

The title of this post is the title of this new Comment by Devina Douglas now available via SSRN. Here is part of the abstract:

While some heralded the recent United States Supreme Court’s Miller v. Alabama decision — forbidding mandatory life without parole (LWOP) sentences for juveniles — as a step in the right direction for protecting the interests of juveniles within the adult criminal justice system, the decision is also a step backwards for the ability states to sentence their criminals as they sees fit....  This Comment argues the Court spoke too broadly applying its rule to all minors.

This essay will first summarize the Supreme Court’s previous sentencing precedent, the cases that paved the way for the Miller decision — establishing that “children are different,” — and then the Miller decision.  Next, it will highlight the troubles lower courts have faced in trying to implement the decision, the flaws in, and alternative interpretations of, the science relied upon, and then turn to the question of whether juveniles over the age of sixteen have reached sufficient maturity as to allow the system to hold them as accountable as adults for homicide crimes.  In response to the likelihood that those sixteen and over are sufficiently mature, this Comment will propose a way to preserve deference to the various state legislatures’ sentencing decisions while addressing increasing concern that juveniles should be treated differently.  The Miller pre-sentencing evaluation factors should only apply categorically to those under sixteen, and those sixteen and seventeen in cases where the juvenile offender is quite young or possesses what the Court calls twice-diminished culpability: where the system convicted the offender under an aiding and abetting or accomplice theory, or felony murder.

June 20, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, June 18, 2014

"Sentencing Terrorist Crimes"

The title of this post is the title of this notable new article by Wadie E. Said now available via SSRN. Here is the abstract:

The legal framework behind the sentencing of individuals convicted of committing terrorist crimes has received little scholarly attention, even with the proliferation of such prosecutions in the eleven years following the attacks of September 11, 2001. This lack of attention is particularly striking in light of the robust and multifaceted scholarship that deals with the challenges inherent in criminal sentencing more generally, driven in no small part by the comparatively large number of sentencing decisions issued by the United States Supreme Court over the past thirteen years. Reduced to its essence, the Supreme Court’s sentencing jurisprudence requires district courts to make no factual findings that raise a criminal penalty over the statutory maximum, other than those found by a jury or admitted by the defendant in a guilty plea. Within those parameters, however, the Court has made clear that such sentences are entitled to a strong degree of deference by courts of review.

Historically, individuals convicted of committing crimes involving politically motivated violence/terrorism were sentenced under ordinary criminal statutes, as theirs were basically crimes of violence. Even when the law shifted to begin to recognize certain crimes as terrorist in nature — airplane hijacking being the prime example — sentencing remained relatively uncontroversial from a legal perspective, since the underlying conduct being punished was violent at its core. In the mid-1990s, the development and passage of a special sentencing enhancement, U.S. Sentencing Guidelines Manual section 3A1.4, offered the opportunity for district courts to significantly increase the penalty for certain activity that fell into a defined category of what was termed “a federal crime of terrorism.” Coupled with the post-9/11 trend of the government using a relatively new offense, 18 U.S.C. § 2339B, the ban on providing material support to designated foreign terrorist organizations, as its main legal tool in the war on terrorism, sentences for such crimes increased significantly, even in situations where there was no link to an act of violence. The application of section 3A1.4 invites a district court to find certain facts, under the preponderance of the evidence standard, which bring the conduct into the category of a federal crime of terrorism, thereby triggering greatly enhanced punishment. A review of the reported decisions involving section 3A1.4 reveals, however, that only in rare cases do courts find the enhancement to be improperly applied. This Article argues that, as currently understood, the application of section 3A1.4 raises serious concerns about its fidelity to the Supreme Court’s Sixth Amendment jurisprudence.

The existence of a terrorism sentencing enhancement also serves as a kind of statutory basis to embolden courts of appeals to overturn a sentence as too lenient, as has been the case in certain high-profile prosecutions, such as those of Ahmad Abu Ali, Lynne Stewart, and Jose Padilla, among others. As the examples in this Article demonstrate, those courts of review that have engaged in this practice either fail to appreciate or disregard the Supreme Court’s instructions to engage in a highly deferential type of review of a district court sentence. At the heart of these opinions lies a message that terrorism is especially heinous, and those convicted of terrorist crimes are particularly dangerous to the point of being irredeemably incapable of deterrence. While these sentiments may or may not be accurate, the courts of appeals adopting them cite no evidence or studies in support, creating the impression that a court of review may overturn a sentence in a terrorism case simply because it disagrees with the district court, something the Supreme Court has said is improper. In light of this recent development, this Article recommends that some combination of Congress, the United States Sentencing Commission, and the federal courts establish standards to better help a court decide when a heightened punishment might be warranted, free from unsupported assumptions about the nature of terrorism or a particular defendant.

June 18, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Senator Rand Paul continues making the conservative case for criminal justice reform

Regular readers know of my respect and admiration for Senator Rand Paul's modern efforts to explain to lots of folks how is modern conservative values call for modern crimnal justice reforms.  This Huffington Post article, headlined "Rand Paul Tackles Prisons 'Full Of Black And Brown Kids' Amid GOP Reach For Minority Votes," reports on how potent Senator Paul's points have become as he makes the case for criminal justice reforms:

In an ongoing effort to bridge the gap between the GOP and minority voters, Sen. Rand Paul (R-Ky.) deviated from traditional party lines during a speech at the Iowa State Republican Party Convention Saturday, criticizing racist drug policies in the United States and calling for the restoration of voting rights for ex-convicts.

After conceding that his position may not "bring everybody together" and establishing that "drugs are a scourge," Paul continued:

I also think it’s a problem to lock people up for 10 and 15 and 20 years for youthful mistakes. If you look at the War on Drugs, three out of four people in prison are black or brown. White kids are doing it too. In fact, if you look at all the surveys, white kids do it just as much as black and brown kids -- but the prisons are full of black and brown kids because they don’t get a good attorney, they live in poverty, it’s easier to arrest them than to go to the suburbs. There’s a lot of reasons.

The likely 2016 presidential contender, who previously compared federal drug laws to the racist policies of the Jim Crow era, also criticized the GOP for failing to live up to its platform emphasis on family values. “If we’re the party of family values, in 1980 there were 200,000 kids with a dad in prison. There’s now two million,” Paul said, calling on Judeo-Christian conservatives to set policies by the principle of redemption.

Some related posts:

June 18, 2014 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack