Tuesday, June 10, 2014

Intriguing new report on "Compensating Victims of Crime"

Victim Compensation infographic_for rotator2_0The folks at Justice Fellowship have just released an interesting new report titled simply "Compensating Victims of Crime" as part of its advocacy for restorative justice programming. This report's Executive Summary includes these passages: 

Restorative Justice recognizes that crime harms people. Though most people affected by crime are never able to fully reclaim what was taken, victim compensation funds are a tool used within our criminal justice system to advance the much needed value of assisting victims and survivors of crime. Unfortunately, very little of the billions of dollars placed within these funds goes directly to victims and survivors of crime.  This report is an extensive overview of victim compensation funds and highlights some concerns and provides some suggestions for reform.

Victim compensation funds are funded by criminal fines and taxpayer dollars and offer monetary assistance to victims and survivors of violent crime.  Though similar in concept to restitution, they differ in eligibility requirements, funding sources, and distribution. Currently, victim compensation funds only provide monetary assistance to a small number of victims and survivors of violent crime. Of the approximately 7 million victims of violent crime per year, only 200,000 receive assistance from a compensation fund. Even more disturbing is the ratio of money spent on compensation compared to that which is spent on corrections. In 2012, federal, state, and local governments spent approximately $85 billion on corrections. In the same year, victim compensation funds paid out approximately $500 million dollars—less than 1% of what was spent on corrections.

This disparity cannot be blamed on a lack of funds.  The Crime Victims Fund — a hybrid system funded jointly by federal and state dollars, but administered at the state level —currently retains a balance of almost $11 billion, while some states have additional balances that approach $10 million. Congress, however, has capped the total annual Crime Victims Fund spending at $745 million dollars despite the large pool of victims who are eligible to receive funds.  Further, the average maximum amount that victims and survivors can receive from a victim compensation fund is $26,000.

Because victim compensation funds are administered on the state level, states differ in the eligibility requirements. All states compensate for medical expenses, mental health counseling, lost wages, funeral costs, and travel.  Many states compensate for crime scene cleanup, attorney fees, rehabilitation, replacement services, and relocation services. Few states compensate for things like pain and suffering, property loss, stolen cash, transportation, return of an abducted child, guide dog expenses, domestic services, home healthcare, and forensic exams in sexual assaults.

Unfortunately, many victims do not receive any compensation. This often occurs simply due to a lack of knowledge about the compensation fund. However, there are numerous other reasons, including the fact that there are fairly stringent requirements that one must satisfy to receive funds.  Half of all states require victims or survivors to report the crime to law enforcement within 72 hours.  12 states require a police report to be filed within 5 to 10 days. A majority of the states require victims and survivors to file a compensation claim within one to two years, and several states restrict compensation to victims who have a prior felony conviction in the last 10 years. While these requirements may not seem stringent at first glance, consider that many crimes are not ever reported for fear of retribution, continued victimization, or the stigma that comes with being a victim. Forty-two percent of victims do not report serious violent crimes to law enforcement officials.  As a result, they are denied access to compensation funds....

The system currently in place can be vastly improved. The federal cap on the dispensing of funds should be raised to $1 billion.  Awareness of these funds must be increased through additional community infrastructure and advocacy.  Overly restrictive requirements must be relaxed so that people have a chance to qualify for compensation once they know it is available. Finally, stringent oversight and transparency of state funds for victims is necessary to ensure that the money is being used properly. Increasing awareness, access, and availability of compensation funds will prioritize victims and survivors in the criminal justice system and advance the values of restorative justice.

The full text of Compensating Victims of Crime is available here.

June 10, 2014 in Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (3) | TrackBack

Friday, June 06, 2014

More critical analysis of NRC mass incarceration analysis from John Pfaff

As I highlighted in this post late last week, through a series of astute posts at PrawfBlawg, Professor John Pfaff has started to pick apart a number of notable flaws and omissions in the National Research Council's analysis of mass incarceration.  John's first five posts in that series are linked here, and now below I have linked his latest in this important series:

June 6, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, June 05, 2014

Split Fourth Circuit highlights ugly mess of SCOTUS "crime of violence" jurisprudence

If you are sentencing nerdy like me, you often wonder what crimes are properly considered "crimes of violence" under federal law.  And, if you are sentencing nerdly like me, you also know the Supreme Court's work on this issue sometimes makes very hard to answer whether a particular state crime is a "crime of violence" for federal sentencing law purposes.  This reality is on stark display in a 40-page opinion handed down today by a Fourth Circuit panel in US v. Martin, No. 12-5001 (4th Cir. June 5, 2014) (available here).

At issue in Martin is the seemingly simple question of whether the defendant's prior Maryland conviction "for fourth-degree burglary constituted a crime of violence under U.S.S.G. § 2K2.1(a)(2)."  But each judge on the panel had something distinct to say on the matter: "Chief Judge Traxler wrote the majority opinion, in which Judge Diaz joined.  Judge Diaz wrote a separate concurring opinion. Judge O’Grady wrote a dissenting opinion."   Gluttons for jurisprudential punishment will want to read the entire Martin ruling, but others will get a feel for this story from portions of Judge Diaz's concurrence:

This case raises a vexing question regarding the application of the crime of violence enhancement found in the Guidelines: To what extent does Begay’s “similar in kind” test for analyzing offenses under the residual clause survive Sykes v. United States, 131 S. Ct. 2267 (2011)?  Specifically, would the Supreme Court apply that test in determining whether Martin’s fourth degree burglary conviction under Maryland law qualifies as a crime of violence? Or would the Court again change course?...

“[T]o put it mildly,” the residual clause is “not a model of clarity.” See James, 550 U.S. at 217 (Scalia, J., dissenting).  The clause “is nearly impossible to apply consistently,” and the Supreme Court’s jurisprudence “has created numerous splits among the lower federal courts.” See Chambers v. United States, 555 U.S. 122, 133 (2009) (Alito, J., concurring in the judgment); cf. United States v. Vann, 660 F.3d 771, 797 (4th Cir. 2011) (en banc) (Davis, J., concurring) (“At the end of the day, it may well be that Justice Scalia is right: that the residual clause of the Armed Career Criminal Act is unconstitutionally vague.”)

The Supreme Court has struggled mightily to make sense of this sphinx-like provision, but the clause remains an elusive target.  We are told that a prior conviction triggers the sentencing enhancement when “the risk posed by [the offense at issue] is comparable to that posed by its closest analog among the enumerated offenses.”  See James, 550 U.S. at 203 (majority opinion).  But, at least in some cases, the offense must also be “roughly similar, in kind as well as in degree of risk posed, to the [enumerated] examples.”  See Begay, 553 U.S. at 143.  To be roughly similar in kind, the crime must be “purposeful, violent, and aggressive.” See id. at 145.  Fear not though, because “[i]n many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk.” See Sykes, 131 S. Ct. at 2275.  As Justice Scalia noted in dissent in Sykes, however, why the inquiry will often be redundant, and when it will not be, “are not entirely clear.” See 131 S. Ct. at 2285....

Beyond this case, however, “[t]he Court’s ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come.” Id. at 2287 (Scalia, J., dissenting).  I urge Congress or the Court to shed light on this “black hole of confusion and uncertainty.”  See Vann, 660 F.3d at 787 (Agee, J., concurring).

June 5, 2014 in Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, June 02, 2014

House votes to preclude funding for clemency efforts as well as for pot prosecutions

I was amazed and pleased upon learning that a majority of members of the US House of Representative voted for an appropriations measure that would preclude the Justice Department from using funds to prevent states from implementing their medical marijuana laws (basics here and here).  But I was also amazed and peturbed upon learning that a majority of members of the US House of Representative also voted for an appropriations measure that would preclude the Justice Department from using funds to have more DOJ attorneys screen clemency petitions in conjunction with efforts to bring old excessive sentences in line with current laws and norms. This MSNBC article, headlined "House Republicans vote to block Obama’s new pardon attorneys," explains:

The U.S. House voted Thursday to block the Obama administration’s plan to add staff to the Pardon Attorney’s office, a potential barrier to the Justice Department’s efforts to scale back some lengthy prison sentences handed down in the war on drugs. The measure, sponsored by Republican North Carolina Rep. George Holding, bans any funding for staff who would conduct the administration’s planned review of applications from inmates seeking early release.

The measure is attached to a new Justice Department funding bill that passed on a party-line vote of 219-189. A Justice Department official told msnbc that Attorney General Eric Holder considers the new funding restriction “absurd.”

The department in April launched a new effort to review more clemency applications and expand the criteria for releasing inmates, particularly those still imprisoned under harsh sentencing laws that have since been reformed. Holding said he pushed the funding ban because he believes Obama is intent on using his presidential pardon power “solely on behalf of drug offenders.”

Speaking on the House floor, Holding also accused the administration of bulking up the Pardon Attorney’s office as a “political ploy” in order to “bypass Congress” and drug laws that are still on the books.

House Democrats objected, saying the funding ban would hamper the research and expertise of the Pardon Office. “If there were a resignation in the office and if you needed to have a temporary detailee, it would be prohibited from this amendment,” Pennsylvania Democratic Rep. Chakah Fattah said. “The last thing we would want is the President using such extraordinary power without the benefit of proper staff and due diligence,” he added.

Virginia Republican Rep. Bob Goodlatte, the House Judiciary Committee chairman, said that while “no one denies the constitutional power of the president to grant clemency,” the Justice Department’s encouragement of “thousands” of clemency appeals is an improper use of the clemency power.  “Congress should not fund that office for that purpose,” Goodlatte said.

To date, President Obama has granted ten clemency petitions out of 11,218 clemency petitions received.

I am inclined to use the word asinine rather than absurd to describe this funding restriction and vote. Congress ought to pass a resolution if it is eager to provide advice or express concerns about how Prez Obama (or any other president for that matter) may be planning to use the constitutional clemency authority. But to prevent DOJ from having adequate resources to better screen the huge number of petitions coming from a huge number of federal prisoners serving now reformed sentences seems more likely to encourage misuse rather than better use of the clemency power.  Sigh.

June 2, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, May 27, 2014

Effective Sentencing Project and HRW responses to Senators' letter opposing the Smarter Sentencing Act

SSAI was very pleased to learn from helpful readers that Antonio Ginatta, the US Program Advocacy Director for Human Rights Watch, and Jeremy Haile, federal advocacy officer for The Sentencing Project, have now both authored effective and distinct responses to the May 12th letter sent by Senators Grassley, Sessions, and Cornyn to their Senate colleagues voicing opposition to the Smarter Sentencing Act (reported here).  Haile's response appears here at The Hill under the headline "Last stand for the drug warriors." Here are excerpts:

In a letter to colleagues, Sens. John Cornyn (R-Texas), Chuck Grassley (R-Iowa) and Jeff Sessions (R-Ala.) wrote that the legislation “would benefit some of the most serious and dangerous offenders in the federal system.” The xenators raised the specter of a violent crime wave if minimum penalties for nonviolent drug offenses are reduced.

Describing the Smarter Sentencing Act as a sort of “get out of jail free card” for dangerous criminals is highly misleading. The bill would not eliminate a single mandatory minimum, nor would it reduce any maximum penalties. Instead, it would allow judges greater discretion in low-level cases, while preserving long sentences for the most serious offenders....

Unfortunately, some longtime drug warriors seem intent on throwing cold water on the sentencing reform movement just as it is heating up. Michele Leonhart, head of the Drug Enforcement Agency, recently testified that rather than unwinding the drug war, “we should be redoubling our efforts.” A number of former federal law enforcement officials have argued that current drug sentencing penalties should be preserved.

But we have tried incarcerating our way to a drug-free America, and that approach has failed. Three decades later, evidence is mounting that federal drug laws have led to skyrocketing prison populations without making communities safer. Meanwhile, illegal narcotics are as pure and as readily available as ever.

Rather than caving in to the “tough on crime” rhetoric of another era, Congress should seize a rare opportunity for reform. State after state has reduced drug sentencing penalties without jeopardizing public safety. Polls show that Americans, Republican and Democrat, favor treatment over prison for nonviolent offenders.

The old playbook on crime and punishment is worn out. It’s time to take a new approach to nonviolent drug sentencing.

Ginatta's response appears in an open letter available here to Senators Grassley, Sessions, and Cornyn detailing with hard data why so many of their claims are misguided.  I urge ervery to read the HRW reponse in full, and here is an excerpt:

Your letter states that drug-related mandatory minimums “are used almost exclusively for high-level drug traffickers.” Data from the United States Sentencing Commission tells a much different story. According to the Commission, 40 percent of federal drug defendants were couriers or street dealers.  In fact, nine out of ten federal drug defendants come from the lower or middle tiers of the drug business.  Because mandatory minimums are triggered by the quantity of drug involved, a street-level dealer can face the same minimum sentence as the head of a large drug trafficking organization. A typical federal drug offender is someone like Jamel Dossie, a 20-year-old, small-time street-level drug dealer’s assistant who received a five-year mandatory minimum sentence for working as a go-between in four hand-to-hand sales totaling 88.1 grams or 3.1 ounces of crack (the weight of an average bar of soap)....

You next cite in your letter that “those who would benefit from these reduced sentences are not ‘non-violent’ — they would include repeat drug traffickers and criminals with a history of violence.”  This is only part of the story.  Almost half (49.6 percent) of all federal drug offenders imprisoned in Fiscal Year 2013 fell under the lowest criminal history category (zero or one criminal history point under the federal sentencing guidelines).  And 83.8 percent of federal drug offenders during the same period were found to not have a weapon involved in their crime.  A small percentage of drug offenders may have used a weapon in their offense, but the mandatory minimums you defend are wilfully blind to the vast numbers of those who didn’t.  To brand all drug offenders as violent is too broad a sweep — no sane sentencing policy should make that assumption.

Some prior posts about the SSA and debates over federal sentencing reform:

May 27, 2014 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Monday, May 26, 2014

California DA tries to make sure marijuana crime does not pay by making the criminals pay for reduced charges

La-me-g-mendocino-potwebThe Los Angeles Times has this fascinting new article on a fascinting drug war innovation being utilized by a local districy attorney in California.  The article is headlined "Mendocino County D.A. takes a new approach to marijuana cases," and here are excerpts: 

When David Eyster took over as Mendocino County district attorney, felony marijuana prosecutions were overwhelming his staff and straining the public coffers.

With hundreds of cases active at any one time, taking an average 15 months to resolve, there were few victories to show for all the effort. "The system hadn't broken yet," Eyster said, "but it was dangerously close."

That was a little over three years ago. These days marijuana cases clear in about three months and the Sheriff's Department is flush with cash, thanks to what some are calling "the Mendocino model." To others, it's the Mendocino shakedown.

The transformation began when Eyster dusted off a section of the California health and safety code, intended to reimburse police for the cost of cleaning up meth labs and pot grows, and retooled it for a modern Mendocino County. In exchange for paying restitution, which Eyster sets at $50 per plant and $500 per pound of processed pot seized, eligible suspects can plead to a misdemeanor and get probation. (The law says restitution is reimbursement for actual enforcement costs, but defendants waive an itemized accounting and state the amount owed is "reasonable.")

The relinquishing of allegedly ill-gotten gains seized in separate civil forfeiture actions — cash, trucks and the occasional tractor — also might be part of the deal offered under Eyster's "global resolutions."

The restitution program is available only to those without troublesome criminal backgrounds who have not wildly overstepped California's somewhat gray laws on medical marijuana. Those who trespass, grow on public lands or degrade the environment need not apply.

Eyster said it's a complex calculation that he jots out himself, by hand, on the back of each case file. The size of a grow is not necessarily the deciding factor: In one current case, the defendants have records indicating they are supplying 1,500 medical users, Eyster said. Another case involved just four pounds of processed marijuana, but evidence indicated the defendant was selling for profit. Participants must agree to random searches while on probation, comply with medical marijuana laws and grow only for personal use.

Restitution funds, which have topped $3.7 million since early 2011, go directly to the investigating agencies. Asset forfeitures — the $4.4 million in cash and goods seized in 2013 was nearly double the previous year — are shared by the state, the district attorney's office and local law enforcement.

Among those who have criticized the program is Mendocino County Superior Court Judge Clay Brennan, who during a restitution hearing last year for a man with an 800-plant grow blasted it as "extortion of defendants."

A federal grand jury investigating county programs that derive revenue from marijuana enforcement has subpoenaed accounting records on the restitution program, Eyster confirmed. The reason is unclear, as the U.S. attorney's office declined to comment on the probe.

Legal analysts also have raised concerns about the potential for unequal treatment of defendants and the incentive for officers to focus on lucrative targets at the expense of those more menacing to public safety....

Eyster teamed with Assemblyman Tom Ammiano (D-San Francisco) in 2011 to try to make pot cultivation a "wobbler," prosecuted as either a felony or misdemeanor. The effort failed, but he had devised another way to thin the caseload.

He drew on past experience with welfare fraud, where considering restitution before making a filing decision was routine. Convinced that not all defendants were created equal — the mastermind behind a for-profit grow is more culpable than hired trimmers — he decided to evaluate each case, consider potentially exculpatory evidence and cut deals as he saw fit.

He offers defendants guidance on how to stay within the law, and said paying restitution "shows a step toward rehabilitation." "A month doesn't go by when someone doesn't say: 'Thank you for handling it this way,'" Eyster said.

Since he took office, 357 defendants have decided to pay restitution. About 20 of those violated their probation, resulting in 180-day jail stints and new charges. (On a second round, a straight misdemeanor charge is off the table.)

Eyster never accepts seized cash as payment of restitution, but his approach does throw such assets into the bargaining mix. It is unclear how many probationers paid restitution and forfeited seized cash or goods, but Eyster conceded the practice is common. "One hundred percent of the time, the defense wants to do a global resolution," he said. "It's saving a lot of time and costs."...

Defense attorney Keith Faulder, who practices in Mendocino County, is circumspect when discussing Eyster's program.  The district attorney, Faulder said, is "an innovator" who he believes is "operating in good faith when it comes to settling marijuana cases." However, Faulder said, Eyster "has a real policy of settling cases for civil forfeiture ... I think it gets a lot of dolphin with the tuna." That program has exploded in recent years, with law enforcement officials attributing the increased seizures to a pot trade that permeates the county....

Mendocino County Sheriff Tom Allman said his deputies do not have the time or inclination to police for profit: "If I wanted to use this as a business plan, I'd have 12 people on my eradication team," he said.  He has two.  But he credits restitution and forfeitures for a sheriff's budget that is $600,000 in the black, and said he has also been able to expand a resident deputy program and purchase a new fleet of cars.

Despite the criticism, Eyster said he was confident in the legality and effectiveness of his approach. He said that he had offered Melinda Haag, U.S. attorney for the Northern District, "first dibs on the prosecution of all marijuana cases in Mendocino County" but that she declined.  So "they should please leave us alone and let local enforcement tackle our own marijuana problems."

Regular readers should not be at all surprised that I am inclined to praise Mendocino County DA for engineering a seemingly more efficient and perhaps more effective way to wage the modern drug war. Indeed, given the muddled mess that is both California's medical marijuana laws and the opaque federal enforcement of prohibition in that state, this "Mendocino model" for modern marijuana enforcement for lower-level marijuana cases strikes me as a very wise way to use prosecutorial discretion and triage prosecutorial resources.

I would like to believe that the federal grand jury investigating the "Mendocino model" is focused on seeing if a local success story can be turned into a national program. But I fear that the feds are looking into what DA Eyster is doing because they fear even the prospect of somebody inventing any better drug war mousetraps.

Finally, though I suppose I should be concerned about the potential for prosecutors extorting criminal defendants in this setting, this form of extortion troubles me much less that when prosecutors demand that defendants give up various rights to avoid a crazy-long mandatory prison sentences in traditional plea bargaining. When DA Eyster seeks money from marijuana defendants as part of the plea process, it seems he is only seeking to have them relinquish what were likely ill-gotten gains (much of which might end up going to defense attorneys' pockets without such a deal available); when other prosecutors seek pleas and cooperation from other defendants facing extreme prison terms, these prosecutors are demanding that defendants relinquish constitutional and statutory rights created specifically to limit and check the power of government officials.

Cross-posted at Marijuana Law, Policy and Reform

May 26, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Is public shaming fair punishment?"

The title of this post is the headline of this recent Los Angeles Times commentary by Patt Morrison on an alternative punishment topic I always find interesting. Here are excerpts:

You play the judge: How would you sentence a man who spent 15 years picking on his neighbor and her handicapped children? A Cleveland judge sentenced just such a man, Edmond Aviv, to jail, community service, anger management and mental health counseling — and to spend five hours alongside a busy street on a Sunday in April with a great big sign branding him an intolerant bully.

The 8th Amendment bans cruel and unusual punishment. Is this either one? Or can justice be fairly meted out in something other than years and months behind bars?

In 2012, a different Cleveland judge gave a woman a choice of going to jail or spending two days standing on a street corner with a sign reading: "Only an idiot would drive on the sidewalk to avoid a school bus." The woman chose to hold the sign.

Puritan punishments like locking someone's head and hands in the stocks seem like retribution, not justice. In "The Scarlet Letter," Hester Prynne, was an adulterer, not a thief. Puritans believed in shame as a behavior corrector. But Prynne flaunted and even co-opted the "A" she was condemned to wear.

Should shame be a component of punishment? Does taking someone down a peg set a miscreant straight, any more than locking him up? And should it be at a judge's discretion?...

Judges have sentenced a La Habra slumlord to live in his own run-down building under house arrest for two months, and made an Ohio woman who abandoned 33 kittens spend a night alone in the woods. In a case that made the legal textbooks and withstood appeal in 2005, a San Francisco mail thief was ordered to stand on the post office steps with a sign that read: "I stole mail and this is my punishment."

It's hard to track the deterrent effect of such creative punishments because they happen so rarely. And judges have so much power and discretion that creative sentencing could mean wildly and unfairly different punishments for the same crime between one courtroom and the next — one reason that sentencing guidelines and laws exist in the first place.

Daniel Markel, the D'Alemberte professor of law at Florida State University and an expert on sentencing, points out that if these punishments didn't have some efficacy, "there probably wouldn't be much resistance" from miscreants, but "in fact defendants typically don't want to be publicly shamed because they realize there is something publicly humiliating about being exposed in the streets."...

The element of choice that comes up in some kinds of creative sentencing might also give us pause. In California and elsewhere, convicted sex offenders have requested castration — chemical and actual — to get out of prison. Civil libertarians object on "cruel and unusual" constitutional grounds, because it amounts to no choice, and because it gets dangerously close to the medieval notion of cutting off a thief's hands. Markel adds another objection to asking the guilty to pick their poison: "We punish to communicate censure and condemnation. It's for a democracy to make those decisions. We ought not empower defendants to be deciding their punishments."

Edmond Aviv apparently wasn't given a choice. Will public humiliation change his behavior? He had been convicted of harassment before, so it's hard to fault the judge for trying something different. And even though we don't live in Hester Prynne's world anymore, I'll cautiously side with the slice of democracy that told a Cleveland.com reporter they approved the sentence. After all, it "communicated censure and condemnation." In this case, it seems, a bad guy got his just deserts. 

A few recent and lots of older posts on shaming sentences:

May 26, 2014 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, May 22, 2014

Newt Gingrich and Van Jones say "Prison system is failing America"

Not only has CNN brought together a 2012 Republican presidential candidate and a former advisory to President Barack Obama as co-hosts of "Crossfire," but it now has published this interesting joint commentary under the headline "Prison system is failing America."  Here are excerpts from an interesting opinion piece that goes a bit beyond just the usual standard points about the various problems with modern mass incarceration:

Thirty-eight U.S. states are home to fewer people than live under the corrections system in this country. There are about as many people behind bars as live in Chicago. That's one in every 108 Americans. One in 35 are under some form of correctional supervision.

Among African Americans, the numbers are even more horrifying. According to the NAACP, one in three black males born in the United States today is likely to spend time in prison at some point in his life. That's compared with one in six Hispanic males or one in 25 white males.

It would be hard to overstate the scale of this tragedy. For a nation that loves freedom and cherishes our rights to life, liberty and the pursuit of happiness, the situation should be intolerable. It is destroying lives and communities.

Our corrections system is not correcting. Within three years of being released from prison, nearly half of prisoners are convicted of another crime with one out of every four ending up back in prison.

When a typical bureaucracy does its job this badly, it wastes money, time and paper. The corrections bureaucracy, in failing to correct the large majority of inmates in its charge, not only wastes money but also wastes lives, families and entire cities.

The current system is broken beyond repair. It's a human, social and financial disaster. We need a radical strategy of replacement of these huge bureaucracies that lack any meaningful oversight.... We need to rethink prisons, parole and probation for the 21st century.

At a time when high-quality education is increasingly digital and in many cases free, shouldn't we provide opportunities for prisoners to learn skills that will enable them to support themselves as upstanding citizens when they are released?

We know that inmates who earn a GED while incarcerated are substantially less likely to return to prison. There are readily available online tools that our prisons could use extensively for a minimal cost to increase the number of inmates receiving valuable education and skills training.

Khan Academy has replicated virtually the entire K-12 curriculum online for free. Udacity and other online education sites offer introductions to software programming for free. Our prisons should be using tools such as these extensively. They offer the opportunity to interrupt the cycle of poverty, a failing education system, crime and incarceration....

Technology should revolutionize more than just the prisons' rehabilitation programs. It should completely transform the corrections and criminal justice systems.... [T]echnology should enable much more effective probation and community supervision, especially new options that could allow nonviolent offenders to remain with their families living productive lives under an appropriate level of restriction.

Almost any activity to which we might sentence low-level offenders --apprenticeship programs, school, literacy or computer science boot camps, community service -- would be a better use of taxpayer dollars than sticking them idle in prison with hardened criminals. Unfortunately, the current corrections bureaucracy has embraced none of this innovation -- in part because it is captive to the prison guards' unions or the private prison lobby, and in part because it lacks any incentives or sufficient competition based on the right metrics....

Years ago, Van proposed that states give wardens a financial incentive to cut the rates of recidivism for inmates leaving their prisons. More than 65% of inmates in California return to prison within three years of their release, where they will again cost taxpayers an average of $47,000 each year.

Surely it is worth giving wardens a substantial portion of the savings for every inmate that leaves their prison and does not re-offend. Such incentives would spark dramatically more innovation and investment in rehabilitation, job training and job placement programs for prisoners. That would be a revolutionary change from prison administrators' current incentives, which are often to keep as many people in custody as possible.

Finally, we need real market competition that rewards success at every step of the process -- in probation and parole offices as well as prisons. That doesn't just mean privatizing prisons or rewarding probation services with the same failed metrics. We need competition of methods and ideas based on the right criteria: When we send prisoners home, do they have the skills to reintegrate in their communities as working, law-abiding citizens? Or do they end up coming back?...

We should start by opening our prisons and probation offices to innovation to save money, achieve better outcomes for individuals and ensure better safety for us all.

May 22, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack

"Remodeling American Sentencing: A Blueprint for Moving Past Mass Incarceration"

The title of this post is the title of this notable new piece by Michael Tonry now available via SSRN. Here is the abstract:

When and if the will to roll back mass incarceration and create just, fair, and effective sentencing systems becomes manifest, the way forward is clear:

-First, three-strikes, mandatory minimum sentence, and comparable laws should be repealed.

-Second, any three-strikes, mandatory minimum sentence, or similar laws that are not repealed should be radically narrowed in scope and severity.

-Third, any three-strikes, mandatory minimum sentence, and similar laws that are not repealed should be changed to include provisions authorizing judges to impose some other sentence “in the interest of justice.”

-Fourth, LWOP laws should be repealed, or radically narrowed.

-Fifth, truth-in-sentencing laws should be repealed.

-Sixth, criminal codes should be amended to set substantially lower maximum sentences scaled to the seriousness of crimes.

-Seventh, every state should establish a sentencing commission and promulgate a presumptive sentencing guidelines system.

-Eighth, any state that does not establish an effective set of presumptive sentencing guidelines should establish a system of parole guidelines.

-Ninth, every state and the federal government should reduce its combined rate of jail and prison confinement to half its 2014 level by 2020.

-Tenth, every state should enact legislation making all prisoners serving fixed terms longer than five years, or indeterminate terms, eligible for consideration for release at the expiration of five years, and all prisoners aged 35 or over eligible for consideration for release after serving three years.

These proposals are evidence-based, and mostly technocratic.  Those calling for prison population targets and reducing the lengths of sentences being served may appear bold to some.  Relative to the problems they address they are modest and partial.  Reducing rates of imprisonment by half in the United States, a country with comparatively low crime rates, to a level that will remain 3 to 3.5 times those of other developed Western countries, can hardly be seen as overly ambitious.

May 22, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Tuesday, May 20, 2014

Occupy Wall Street activist sentenced to occupy jail for three months

CecilyAs the New York Times reports here, a "woman whose assault case had become a cause célèbre, first among Occupy Wall Street supporters and then expanding well beyond the movement, was sentenced to three months in jail on Monday, as a judge rejected calls for her immediate release." Here is more about a high-profile state sentencing that occurred yesterday in Manhattan:

The woman, Cecily McMillan, 25, a graduate student at the New School and a volunteer labor organizer, was convicted two weeks ago of assaulting a police officer at Zuccotti Park in Manhattan in 2012.  Before the sentence was delivered, Ms. McMillan remained mostly defiant, even as she characterized the encounter with the officer as “an accident.”.....

But Justice Ronald A. Zweibel, who had remanded Ms. McMillan on May 5 after the four-week trial, imposed the jail sentence that prosecutors had requested, rather than release her on probation, as her lawyers had urged.  She could have faced a maximum of seven years for the second-degree assault.  “A civilized society must not allow an assault to be committed under the guise of civil disobedience,” Justice Zweibel said....

Upon her conviction, Ms. McMillan’s supporters wrote scores of letters to Justice Zweibel, urging him to be lenient.  Five City Council members delivered the same message on the steps of City Hall, and the Russian activists Pussy Riot, who were recently imprisoned for criticizing President Vladimir Putin, visited her on Rikers Island and called for her release. An online petition calling for leniency garnered 160,000 signatures....

Before sentencing, Shanda Strain, an assistant district attorney, said Ms. McMillan deserved a three-month stay in jail because she had falsely accused Officer Bovell of grabbing her breast, lying under oath “to avoid responsibility for her actions.”

“This trial was not a referendum on a large social cause or movement, though the defendant tried and continues to try to make it just that,” Ms. Strain said. Then she added, “In essence, she has repeatedly argued that the rules should not apply to everyone equally — that defendants who are politically motivated deserve special treatment.”...

Ms. McMillan’s lawyer, Martin Stolar ... told the judge that the bruises and mental trauma that Ms. McMillan had suffered during her arrest were punishment enough.  “You touch a police officer and get the hell beat out of you,” he said outside court.  “That’s what happened to her. That’s enough of a deterrent.”

Ms. McMillan also received five years of probation, and was ordered to undergo a mental-health evaluation and treatment.  Mr. Stolar said he had filed a notice of intent to appeal the verdict, and had asked that his client be granted bail pending the appeal.

May 20, 2014 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (10) | TrackBack

Sunday, May 18, 2014

Identifying better DOJ prosecutorial priorities than low-level drug crimes

Perhaps the main reason I am a supporter of the Smarter Sentencing Act is my desire to have Congress send an important message about federal criminal justice priorities to the US Justice Department and others through a relatively modest revision of existing mandatory minimum sentencing provisions.  Notably, the preamble to the SSA makes express mention of this goal, describing the purpose of the Act as designed to "focus limited Federal resources on the most serious offenders."  By reducing (though not eliminating) mandatory minimums for various drug crimes, Congress would be effectively saying that federal prosecutors ought not prioritize federal prosecutions of first offenders who may have been involved in dealing only a few ounces of crack or meth or heroin.

Critically, under current law and after the SSA were to become law, if and whenever a drug offender has even a single prior drug offense or just possesses a firearm or causes any significant bodily harm, additional heightened mandatory sentences kick in.  Thus, the only drug dealers likely to benefit significantly from the SSA are true first-offenders who deal only a few ounces of crack or meth or heroin.  I feel confident that major dealers, repeat dealers, and those who use or threaten violence will still be a priority for federal prosecutors after passage of the SSA, and that the feds will still have plenty of prosecutorial tools to take down serious drug traffickers.  And by making sure that lengthy prison terms are mandated only for the most serious offenders, federal prosecutorial and corrections resources can and should be better focused on other crimes, especially crimes that only federal prosecutors can effectively and efficiently prosecute.

What kinds of other crimes, you might ask, would I want federal prosecutors to prioritize over going after first offenders involved in dealing only a few ounces of crack or meth or heroin?  Helpfully, old pal (and forner federal prosecutor) Bill Otis in a pair of new posts over at Crime & Consequences identifies two classes of federal fraud and corruption that ought to be a signal concern for federal prosecutors. Here I will provide links and highlights from these two posts:

A New Prosecution Priority for DOJ: "The lead story in the Washington Post today reports that possibly a million applicants for Obamacare subsidies may have 'misstated' their income.... DOJ should not allow something like that to happen again.  Whether one loves Obamacare or hates it, no one has the right to bilk it by cheating.   A few hundred highly publicized false statement prosecutions would go a long way toward keeping applicants honest and, therefore, keeping the program as solvent as it's going to get."
Another Prosecution Priority for DOJ:  "My last post suggested that the Justice Department prosecute at least some of the thousands of Obamacare applicants who have intentionally falsified statements of their income in order to bilk the taxpayers for even more than they're being bilked out of already.  There is second priority I would suggest for DOJ examination -- a priority that, it seems, the Department may have taken up.  As the New York Times reports: 'The Department of Veterans Affairs' inspector general is working with federal prosecutors who are trying to determine whether criminal violations occurred at a medical center in Phoenix accused of falsifying data or creating secret waiting lists intended to hide months long delays for veterans to see doctors, a top official told a Senate committee on Thursday.'"

I suspect Bill would be quick to assert that the federal government in general and DOJ in particular has plenty of resources to keep going after all drug offenders and to now start going after Obamacare cheats and federal executive branch liars.  Though it is surely true that federal prosecutions are not a zero-sum game, the fact remains that the sentencing laws on the books necessarily serve to structure and greatly influence the exercise of prosecutorial discretion for this Administration and others.  Plus, state prosecutors can (and still do) go after low-level (and high-level) drug dealers, whereas state prosecutors cannot go after after Obamacare cheats and federal executive branch liars.

In short, I heartily endorse Bill's suggestion that AG Holder and his prosecutorial agents start going after Obamacare cheats and federal executive branch liars.  And that endorsement of DOJ prosecutorial priorities provides an additional reason for my support of the SSA and its effort to reorient federal prosecutorial priorities accordingly.

Some prior posts about the SSA and debates over federal sentencing reform:

May 18, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Monday, May 12, 2014

Significant collection of significant former federal prosecutors write to Senators to oppose SSA

Thanks to this new post by Bill Otis at Crime & Consequences, titled "Former Top DOJ Leaders Oppose the SSA," I have learned that a significant number of significant former federal prosecutors — including former US Attorneys General William Barr and Michael Mukasey — have signed on to a public letter to Senators Harry Reid and Mitch McConnell to express publicly their opposition to any reform of federal drug mandatory minimums. The full text of the letter is available at C&C, and here are excerpts:

Because the Senate is now considering revisiting the subject of mandatory minimum penalties for federal drug trafficking offenses, we take this opportunity to express our personal concerns over pending legislative proposals.  We are concerned specifically by proposals that would slash current mandatory minimum penalties over federal drug trafficking offenses — by as much as fifty percent.  We are deeply concerned about the impact of sentencing reductions ofthis magnitude on public safety.  We believe the American people will be ill-served by the significant reduction of sentences for federal drug trafficking crimes that involve the sale and distribution of dangerous drugs like heroin, methamphetamines and PCP.  We are aware of little public support for lowering the minimum required sentences for these extremely dangerous and sometimes lethal drugs. In addition, we fear that lowering the minimums will make it harder for prosecutors to build cases against the leaders of narcotics organizations and gangs — leaders who often direct violent and socially destructive organizations that harm people throughout the United States.

Many of us once served on the front lines of justice. We have witnessed the focus of federal law enforcement upon drug trafficking — not drug possession offenses — and the value of mandatory minimum sentences aimed at drug trafficking offenses.

Existing law already provides escape hatches for deserving defendants facing a mandatory minimum sentence.  Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved.  Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player,and cooperates with federal authorities.  This "safety valve," as it's known, has been in the law for almost 20 years. Prosecutors correctly regard this as an essential tool in encouraging cooperation and, thus, breaking down drug conspiracies, large criminal organizations and violent gangs.

We believe our current sentencing regimen strikes the right balance between Congressional direction in the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety.  We have made great gains in reducing crime.  Our current sentencing framework has kept us safe and should be preserved.

In addition to thinking this letter is a pretty big deal, I am now wondering if it represents the final nail in the Smarter Sentencing Act's coffin or instead reveals that the SSA might still have some legs. Based on the lack of action on the SSA over the last few months, I have been assuming this effort at federal sentencing reform was dying a slow death, and this letter from a lot of prominent former prosecutors provides yet another reason and basis for member of Congress to express additional concerns about the sentencing reforms in the SSA. And yet, if the SSA was already in its death throes, I doubt there would have been so much obvious energy devoted to getting all these prominent former prosecutors speaking out against the reforms in the SSA.

All that said, I continue to find the discussion and debate over the SSA an intriguing (and valuable?) distraction from all the other arguably much-more-consequential federal sentencing developments that are afoot. The fact that prominent Tea-party leaders in the GOP like Rand Paul, Mike Lee and Ted Cruz all support significant federal sentencing reform, the fact that state marijuana reforms seem to be continuing apace, the fact that the US Sentencing Commission has voted to lower most of the drug guidelines, the fact that most federal sentences are now outside the guidelines, and the fact that DOJ and Prez Obama are working hard on clemency reform all will be likely impacting federal sentencing realities more than whether or not the SSA is passed by Congress. (This is not to say that the SSA is not important or potentially consequential, but it is to say that a whole host of much broader forces are changing the dynamics of modern federal sentencing policies and practices.)

Some prior posts about the SSA federal prosecutorial perspectives on sentencing reform:

May 12, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, May 11, 2014

Feds call probation sentence given to Beanie Babies billionaire substantively unreasonable

As detailed in this Chicago Tribune article, federal prosecutors have filed their merits brief with thr Seventh Circuit complaining about the probation sentence given to the billionaire creator of Beanie Babies after he pleaded guilty to hiding at least $25 million from U.S. tax authorities in Swiss bank accounts.  Here are some details of the filing:

The U.S. government on Friday appealed the sentence of billionaire Ty Warner, the Beanie Babies creator who recently received two years' probation for tax evasion.

In January, U.S. District Judge Charles Kocoras rejected calls from prosecutors that he sentence Warner to a prison sentence of at least a year for failing to pay income taxes on millions of dollars that he hid for years in Swiss bank accounts. Kocoras said he was swayed by letters detailing Warner's acts of kindness in giving him probation instead of prison.

The government's appeal on Friday said Kocoras gave too much weight to Warner's charitable acts, considering his wealth and that many of the letter writers were current or former employees....

In a court filing on Friday, prosecutors said the district court judge's ruling was "substantively unreasonable" and that Warner's sentencing should have served as a punishment and deterrence. It also said Warner's sentence provided "unwarranted sentencing disparities" as others have been treated more harshly for tax evasion....

It also said Warner's claim that he donated $140 million to charity was overstated because the figure included the retail value of Beanie Babies he had donated. A more accurate reflection of the cost would have been $36 million, the government said. The government also estimated that Warner's charitable contributions amounted to 2 percent of his net worth -- "a not extraordinary" amount.

A spokesman for Warner said it was unfortunate that "the government is spending resources to challenge a well-reasoned and careful sentence issued by a well-respected judge."

The government filing said the founder of Ty Inc. hid $100 million in Swiss bank accounts, refused to report $24 million of it to the Internal Revenue Service, and evaded $5.5 million in taxes. At the time of his sentencing, his net worth was $1.7 billion.

Critically, though not mentioned in this article and likely not stressed in the government's appeal, in In addition to probation, Judge Kocoras ordered Warner to do 500 hours of community service at Chicago high schools, and Warner had already previously agreed to pay $27 million in back taxes and interest, and a civil penalty of more than $53 million.  Though the absence of any prison time surely bothers the feds and has prompted this appeal, the fact that Warner's foolish bit of tax dodging has already seems to have cost him more ten times the taxes he sought to evade strikes me as punishment enough.  For these sort of economic crimes, I tend to think an expensive economic punishment is more efficient and effective than prison time.  But, obviously, federal prosecutors do not agree.  And it will be interesting to see what the Seventh Circuit will have to say ultimately.

Prior related posts:

May 11, 2014 in Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (5) | TrackBack

Saturday, May 10, 2014

"Drugs and Violence"

The title of this post is the title of this notable and important new paper I just noticed via SSRN authored by Shima Baradaran. Here is the abstract:

The war on drugs has increased the United States prison population by tenfold.  The foundation for the war on drugs and unparalleled increase in prisoners rely on the premise that drugs and violence are linked.  Politicians, media, and scholars continue to advocate this view either explicitly or implicitly.

This Article identifies the pervasiveness of this premise, and debunks the link between drugs and violence.  It demonstrates that a connection between drugs and violence is not supported by historical arrest data, current research, or independent empirical evidence. That there is little evidence to support the assumption that drugs cause violence is an important insight, because the assumed causal link between drugs and violence forms the foundation of a significant amount of case law, statutes, and commentary.

In particular, the presumed connection between drugs and violence has reduced constitutional protections, misled government resources, and resulted in the unnecessary incarceration of a large proportion of non-violent Americans.  In short, if drugs do not cause violence — and the empirical evidence discussed in this Article suggests they do not — then America needs to rethink its entire approach to drug policy.

May 10, 2014 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

Friday, May 09, 2014

"Legal Institutions and Social Values: Theory and Evidence from Plea Bargaining Regimes"

The title of this post is the title of this intriguing new empirical paper by Yehonatan Givati now available via SSRN. Here is the abstract:

How do social values shape legal institutions across countries? To address this question I focus on one important legal institution -- the use of plea bargaining in criminal cases.  I develop a model in which the optimal scope of plea bargaining depends on social values. Specifically, a lower social emphasis on ensuring that innocent individuals are not punished, and a greater social emphasis on ensuring that guilty individuals are punished, lead to a greater use of plea bargaining.  Using unique cross-country data on social preferences for punishing the innocent versus letting the guilty go free, as well as an original coding of plea bargaining regimes across countries, I obtain results that are consistent with the model.

May 9, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, May 08, 2014

Recognizing that mass incarceration has lately been a little less massive

The always astute commentator Charles Lane has this new astute commentary in the Washington Post under the headline "Reaching a verdict on the era of mass incarceration."  Here are excerpts:

Though the U.S. prison population of 1.5 million in 2012 was far larger than that of any other country, both in absolute terms and as a percentage of population, the era of ever-increasing “mass incarceration” is ending.

The number of state and federal inmates peaked in 2009 and has shrunk consistently thereafter, according to the Justice Department.  New prison admissions have fallen annually since 2005.  The inmate population is still disproportionately African American — 38 percent vs. 13 percent for the general population — but the incarceration rate for black men fell 9.8 percent between 2000 and 2009, according to the Sentencing Project.

This is not, however, the impression one would get from a new 464-page report from the prestigious National Research Council, which, like other think-tank output and media coverage of late, downplays recent progress in favor of a scarier but outdated narrative. The report opens by observing that the prison population “more than quadrupled during the last four decades” and goes on to condemn this as a racially tainted episode that badly damaged, and continues to damage, minority communities but did little to reduce crime.

The study’s authors are right that the disproportionate presence of minorities in prison is a tragic reality, rooted at least partly in the post-1960s politics of white backlash. Today’s big prison population reflects the impact of mandatory minimums and longer sentences, which probably do yield diminishing returns in terms of crime reduction, especially for nonviolent drug offenses. Summarizing a relative handful of studies, the NRC report implies that we can have safe streets without the cost, financial and moral, of locking up so many criminals — since it’s “unlikely” that increased incarceration had a “large” positive impact on crime rates.

It would be nice if there were no trade-off between crime and punishment, but common sense says it’s not so. An analysis by the Brookings Institution’s Hamilton Project, similar in both tone and timing to the NRC report, acknowledges that increasing incarceration can reduce crime and that this effect is greatest when the overall rate of incarceration is low.

Ergo, increasing the incarceration rate now would do little to reduce crime, but the crime-fighting benefits were probably substantial back in the high-crime, low-incarceration days when tougher sentencing was initially imposed.

It’s easy to pass judgment on the policymakers of that violent era, when the homicide rate was double what it is today and crime regularly topped pollsters’ lists of voter concerns. That had a racial component, but minorities were, and are, disproportionately victims of crime, too. The NRC report extensively discusses the negative effect on communities of incarcerating criminals, but it has comparatively little to say about the social impact of unchecked victimization.

Buried within the report is the fact that, in 1981, the average time served for murder was just five years; by 2000, it had risen to 16.9 years. The numbers for rape were 3.4 and 6.6 years, respectively. Insofar as “mass incarceration” reflects those changes — and the majority of state prisoners are in for violent crimes — it’s a positive development....

Instead of ignoring recent positive trends, researchers should try to understand them. The decline in incarceration may represent the delayed effect of falling crime and the diminished flow of new offenders it necessarily entails.

Sentencing reform, too, is taking hold, based on changing public attitudes. The percentage of Americans who say criminals are not punished harshly enough has fallen nearly 23 points since 1994 — when the crime wave peaked — according to data compiled by Arizona State University professor Mark Ramirez.

After erring on the side of leniency in the 1960s, then swinging the opposite way in the 1980s and 1990s, the United States may be nearing a happy medium. But this probably would not be possible if 48 percent of Americans felt unsafe walking at night within a mile of their homes, as the Gallup poll found in 1982.  To sustain moderate public opinion we must keep the streets safe, and to do that we must learn the right lessons from the recent past.

I largely concur with many of Lane's sentiments here, especially with respect to making sure we acknowledge that rates of violent crime have dropped dramatically in recent decades and trying our very best to identify and understand recent trends and to "learn the right lessons from the recent past." At the same time, though, I question the basis for asserting that we may "be nearing a happy medium" with respect to modern punishment policies and practices given that the vast majority of the most severe sentencing laws enacted in the the 1980s and 1990s are still on the books.

Some recent related posts:

May 8, 2014 in National and State Crime Data, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

"In Defense of Capital Punishment: A 'botched' execution does not render the death penalty illegitimate"

The title of this post is the headline of this potent commentary by Jonah Goldberg at National Review. Here are excerpts:

Last week the state of Oklahoma “botched” an execution.  Botched is the accepted term in the media coverage, despite the fact that Clayton Lockett was executed.  He just died badly, suffering for 43 minutes until he eventually had a heart attack.

Oklahoma’s governor has called for an investigation.  President Obama asked Attorney General Eric Holder (who is seeking the death penalty in the Boston Marathon bombing case) to review the death penalty. Obama’s position was a perfectly defensible straddle: “The individual . . . had committed heinous crimes, terrible crimes, and I’ve said in the past that there are certain circumstances where a crime is so terrible that the application of the death penalty may be appropriate.”

On the other hand, Obama added: “I’ve also said that in the application of the death penalty . . . we have seen significant problems, racial bias, uneven application of the death penalty, situations in which there were individuals on death row who later on were discovered to be innocent.  I think we do have to, as a society, ask ourselves some difficult and profound questions.”

As a death-penalty supporter, I agree.  Although I’m not sure we’d agree on what those questions — and answers — should be.  As for Lockett, he was entitled to a relatively painless and humane execution under the law. As for what he deserved in the cosmic sense, I suspect he got off easy....

Capital-punishment opponents offer many arguments why people like Lockett shouldn’t be executed.  They point out that there are racial disparities in how the death penalty is administered, for example. This strikes me as an insufficient argument, much like the deterrence argument from death-penalty supporters.  Deterrence may have some validity, but it alone cannot justify the death penalty.  It is wrong to kill a man just to send a message to others.  Likewise, Lockett, who was black, wasn’t less deserving of punishment simply because some white rapist and murderer didn’t get his just punishment.

The most cynical argument against the death penalty is to point out how slow and expensive the process is.  But it is slow and expensive at least in part because its opponents have made it slow and expensive, so they can complain about how slow and expensive it is....

Some believe the best argument against the death penalty is the fear that an innocent person might be executed. It’s hotly debated whether that has ever happened, but it’s clear that innocent people have been sent to death row. Even one such circumstance is outrageous and unacceptable. But even that is not an argument against the death penalty per se.  The FDA, police officers, and other government entities with less constitutional legitimacy than the death penalty (see the Fifth and 14th amendments) have made errors that resulted in innocent deaths.  That doesn’t render these entities and their functions illegitimate.  It obligates government to do better.

Radley Balko, a death-penalty opponent, in a piece in the Washington Post, says that ultimately both sides of the death-penalty debate have irreconcilable moral convictions. I think he’s right. As far as I’m concerned, Lockett deserved to die for what he did. Everything else amounts to changing the subject, and it won’t convince me otherwise.

There are various parts of this commentary that I consider astute (e.g., I call Lockett's execution ugly, not botched, because he did end up dead), and others that seem to me quite peculiar (e.g., if deterrence cannot justify the death penalty, why can it be used to justify any state punishment?). But I find especially valuable this commentary's emphasis that "irreconcilable moral convictions" may be at the base of all modern heated death penalty debates.

Notable missing, though, is the parallel reality I see that irreconcilable political convictions seemingly influence both supporters and opponents of the death penalty.  Notably, in this commentary from last year, Jonah Goldberg effectively explains why the "only people in the world who don’t want the government to get much smarter are the ones working for it."  In light of that astute observation, how can  he have any confidence that, in response to the ugly Lockett execution, governments can or will fulfill their "obligat[ion] to do better"?

Of course, similarly telling and curious view about government powers and possibilities often seems to infest liberal critics of the death penalty.  As Goldberg highlights, a lot of claims about inevitable government dysfunction drives a lot of the modern abolitionist movement.  But the modern death penalty is arguable the most effectively and comprehensive regulated of all government activities, and in other settings folks on the left often respond to government and regulatory failings by calling for more government and regulation, not less.

I make these points not to chide either supporters or opponents of the death penalty, but rather to encourage folks to notice not only that irreconcilable moral convictions are often involved in death penalty debates, but also that these moral convictions often regularly eclipse typical political convictions in this setting.

May 8, 2014 in Baze lethal injection case, Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Criminal Law Multitasking"

The title of this post is the title of this intriguing new article by Hadar Dancig-Rosenberg and Tali Gal. Here is the abstract:

Criminal law pursues multiple goals: retribution, deterrence, expressive justice, rehabilitation, restoration, and reconciliation.  Scholars tend to analyze these goals and their implementation in separation from each other, without accounting for their interplay and coordination.  A theory of criminal law multitasking is overdue.

This Article sets up a conceptual framework for such a theory.  We develop a taxonomy that captures the interplay between various procedures and substantive goals promoted by criminal law.  Based on this taxonomy, we discuss five mechanisms of criminal law.  We propose that policymakers and law enforcers select one or more of these mechanisms to implement the chosen mix of retribution, deterrence, expressive justice, rehabilitation, restoration, and reconciliation.  We provide reasons guiding this selection, among them constructive community involvement, offenders' responsiveness, and integration of victims' rights.  We illustrate the operation of our multitasking approach in real-world cases and illustrate its ability to facilitate the implementation of the deferred prosecution and adjudication mechanisms promulgated by the current Draft of the Model Penal Code.

May 8, 2014 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, May 07, 2014

Examining "sentence finality" at length in new article and series of posts

I am pleased to report that an article I completed in conjunction with a wonderful symposium on "Finality in Sentencing" for the Wake Forest Journal of Law & Policy is now in print and available in full via this SSRN link.  

The full title of my article is "Re-Balancing Fitness, Fairness, and Finality for Sentences," and here is the abstract: 

This Essay examines the issue of “sentence finality” in the hope of encouraging more thorough and reflective consideration of the values and interests served — and not served — by doctrines, policies, and practices that may allow or preclude the review of sentences after they have been deemed final.  Drawing on American legal history and modern penal realities, this Essay highlights reasons why sentence finality has only quite recently become an issue of considerable importance.  This Essay also suggests that this history combines with modern mass incarceration in the United States to call for policy-makers, executive officials, and judges now to be less concerned about sentence finality, and to be more concerned about punishment fitness and fairness, when new legal developments raise doubts or concerns about lengthy prison sentences.

Regular readers know I have commented in the past in this space about my fear that too much stock and weight is often put on "sentence finality" (as distinct from "conviction finality"), and this article provided me the first real opportunity to think and write about this issue more thoroughly and systematically.  And yet I fear I am only scratching the surface of various important conceptual and practical issues in this Wake article; as a result, I may end up writing a lot more on this topic in the months and years.  

In service to my stated goal "to encouraging more thorough and reflective consideration of the values and interests served — and not served — by doctrines, policies, and practices that may allow or preclude the review of sentences after they have been deemed final," I am planning in the days ahead to reprint and discuss in separate posts a few of the ideas and themes that find expression in this article.  For now, I am hopeful that readers will check out the full article and perhaps let me know via comments if they find this topic of sufficient interest and importance so as to justify many additional posts on sentence finality.

May 7, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Saturday, May 03, 2014

"Harsh Sentencing, Overstuffed Prisons — It's Time for Reform"

The title of this post is the headline given to this new Wall Street Journal commentary authored by Mortimer Zuckerman.  Here are excerpts:

Too many people are in prison who should not be there.  How many?  Most of them!  It is not that they are innocent of the offenses that put them there.  It is that they are in prison mainly because we have criminalized vast areas for nonviolent offenders and compounded that with a distorted sentencing system.  Criminal justice cries out for reform.  Congress and the Justice Department have begun to listen.

Since 1980 the U.S. federal prison population has grown by about 800% (to 216,787 this week, according to the Bureau of Prisons), while the country's population has increased only a third.  By comparison, under President Reagan, the total correctional-control rate (that includes everyone in prison or jail or on probation or parole) was less than half what it is today.  And here's another shocker: At the federal level, nonviolent offenders account for 90% of prisoners....

Federal prisons today house nearly 40% more inmates than they were designed for, many of them repeat offenders.  According to an April 2011 report from the Pew Center on the States, more than 40% of state ex-convicts return to their cells within three years of release, and in some states the recidivism rate approaches 60%.  The inflexible mandatory-sentencing rules inflict punishments that in many cases no reasonable judge would impose — and then the system turns out prisoners who are more harmful to society than when they went in.  For instance, a June 2013 paper by Anna Aizer of Brown University and Joseph J. Doyle Jr. of MIT found that putting a minor in juvenile detention reduced his likelihood of graduating from high school by 13% and increased his odds of being incarcerated as an adult by 23%.

There is now an awakening to the desperate situation we created (out of the best of motives).  It is manifest in Congress, which has a bipartisan bill before it to refocus federal resources on incarcerating violent offenders and move away from low-level ones. We also see the urge for reform in Attorney General Eric Holder, as well as in the states, which together have six times as many prisoners as the federal government....

The states are laboratories of reform led by vigorous governors—who realize that prisons cost the states more than $50 billion a year, up from about $9 billion in 1985.  Beginning in 2007, Texas, under the leadership of Gov. Rick Perry, rejected a proposal to build eight more prisons (and has saved an estimated $2 billion overall in projected corrections spending).  Instead, Texas is shifting nonviolent offenders from state prisons into alternative treatment, and budgeting for rehabilitative programs for addicts and mentally-ill prisoners.  A March 2013 Pew Charitable Trust report on state and consumer initiatives found that the rate of parole failure had dropped 39% since 2007 and Texas had its lowest crime rate since the 1960s.

More than a dozen other states — including Ohio, Georgia and South Carolina — are shortening or even eliminating prison time for the lowest-risk, nonviolent offenders. Instead of spending on more prisons, many states are increasing the number and compensation of parole caseworkers, who in the past have been almost perpetually overwhelmed.  Technology like ATM-style check-in stations and ankle bracelets with GPS helps.

But funding is required for the roughly 650,000 federal and state prisoners who are released every year into society.  You cannot drop them on the curb to fend for themselves, for two-thirds are rearrested within three years.  Enlisting family members to help once their relative leaves prison is one proven way to reduce recidivism.  Sentencing nonviolent offenders to a minimum-security prison or even to home confinement is not only cheaper but also eliminates the strain on separated families and reduces the contagion of crime.

We have to be smart and tough on criminal-justice spending, with the goal of getting the most public safety from the more-efficient expenditures of taxpayer dollars. The central idea must be to return significant criminal-justice discretionary dollars to local authorities. Reserve expensive prison beds for career criminals and violent felons, and give local jails the responsibility and funding to oversee low-level inmates involved with less-violent crimes.

The politics of all this are admittedly touchy. But we cannot remain in the mind-set created by the 1980s crime explosion that led to a narrowing of criminals rights and tougher penalties. Think of all the billions spent building prisons that could have been spent on roads, hospitals, schools and airports. If we do not support the initiatives of all three government branches to reform the system, the verdict could only be: Guilty of waste and injustice.

May 3, 2014 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack