Wednesday, December 11, 2013
Massachusetts Supreme Judicial Court suggests gender is important consideration for placement on state sex offender registry
This AP article, headlined "Mass. court overturns escort's sex offender label," reports on a very interesting ruling today by the top state court in Massachusetts. Here are the basics:
The state’s highest court on Wednesday overturned the classification of a former escort service manager as a low-level sex offender, finding that the state’s Sex Offender Registry Board should have considered research showing women are less likely than men to commit new sex offenses.
The woman, who wasn’t identified in the court’s ruling, pleaded guilty in 2006 to federal charges stemming from her management of an escort service from 2000 to 2002, including one count of transporting a minor to engage in prostitution and one count of sex trafficking of children. She served 17 months in prison while awaiting trial before pleading guilty.
In 2008, the woman requested funds to hire an expert witness, arguing that the board’s guidelines didn’t encompass scientific research on female sex offenders. Her request was rejected by the board. A hearing officer eventually found that she should be classified as a level one sex offender, the lowest level of offender, considered the least likely to reoffend and the least dangerous....
In its ruling Wednesday, the SJC agreed with the woman that the hearing examiner abused his discretion by denying her request for funds for an expert witness who could testify on the subject of how infrequently female sex offenders commit new crimes when compared with men. "We conclude that it was arbitrary and capricious for (the board) to classify Doe’s risk of re-offense and degree of dangerousness without considering the substantial evidence presented at the hearing concerning the effect of gender on recidivism," Justice Barbara Lenk wrote for the court....
The court also said the board is required to ensure that its guidelines are based on "the available literature."
"We do not purport to suggest a frequency with which the guidelines must be updated, but caution that guidelines that fail to heed growing scientific consensus in an area may undercut the individualized nature of the hearing to which a sex offender is entitled, an important due process right," Lenk wrote.
I was able to access the full text of the opinion in Doe v. Sex Offender Registry Board, No. SJC-11328 (Mass. Dec. 11, 2013), at this link.
December 11, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Sunday, November 24, 2013
"'Cocaine congressman' received the right sentence"
The title of this post is the headline of this new commentary by Clarence Page appearing in the Chicago Tribune. Here are excerpts:
"Cocaine Congressman" Trey Radel, as headline writers have rebranded him, voted to allow states to drug test all food stamp recipients. Congress, it turns out, should have drug-tested Radel....
Radel became the first sitting congressman in 31 years, according to The Associated Press, to plead guilty to a misdemeanor drug-possession charge.
FBI and Drug Enforcement Administration agents swooped in to arrest him after he bought 3.5 grams of cocaine for $250 in a late October sting operation in Washington's fashionable DuPont Circle neighborhood. Charging documents described Radel as having a frequent-buyer reputation in the neighborhood. After Radel pleaded guilty in District of Columbia Superior Court, he was sentenced to a year of probation and will undergo substance abuse treatment in Florida.
House Republicans did not rush to escort Radel out the door, even though he reportedly waited three weeks before telling them about his bust. Speaker John Boehner said before Radel's sentencing that the matter should be left up to the courts, Radel, his family and his constituents.
Indeed, it would hardly be the first time that a politician continued to serve and potentially be re-elected after a misdemeanor conviction. Voters can be very forgiving of lawbreaking politicians.
"Today, I checked myself into a facility to seek treatment and counseling," Radel said in a statement last week. "It is my hope, through this process, I will come out a better man." I wish him luck. Unlike his more outraged critics, I don't think Radel should have been sent to jail. Quite the opposite, I think his case offers a good example of why a lot of nonviolent, first-arrest drug offenders shouldn't be in jail.
Contrast his case, for example, with another high-profile District of Columbia case, the arrest of then-Mayor Marion Barry for taking a hit of crack cocaine during an FBI hotel room sting in 1990. He was sentenced to six months in a federal prison. His sentence could have been worse if the video had not provided so much evidence to back the mayor's argument that he was a victim of FBI entrapment.
The fact that Barry is black and Radel is white doesn't mean that racism played a role in either case. But the differences in their sentences illustrate a persistent problem: Despite recent reforms, a racial disparity persists between the minimum sentences for crimes involving crack and powder cocaine. The Fair Sentencing Act that Congress passed in August of 2010 reduced the 100-to-1 disparity between crack and powder cocaine that was created during the anti-crack uproar of the 1980s. But it still remains way too huge at about 18-to-1. Fairness should never end at the color line.
Radel is fortunate to have been sentenced in D.C., where enlightened attitudes led to a special "drug court" in 1993 that is designed to funnel low-level addicts into rehab instead of long-term jail time. With prison costs skyrocketing — even after overall crime rates declined in the mid-1990s — even states with reputations for tough justice are turning to alternatives to prison for nonviolent drug offenders. Drug addiction should be handled as a disease, not a crime. Trey Radel knows.
Recent related post:
Thursday, November 21, 2013
"Have Inter-Judge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker"
The title of this post is the title of this notable new paper by Crystal Yang now available via SSRN. Here is the abstract:
The Federal Sentencing Guidelines were promulgated in response to concerns of widespread disparities in sentencing. After almost two decades of determinate sentencing, the Guidelines were rendered advisory in United States v. Booker. What has been the result of reintroducing greater judicial discretion on inter-judge disparities, or differences in sentencing outcomes that are attributable to the mere happenstance of the sentencing judge assigned?
This Article utilizes new data covering over 600,000 criminal defendants linked to sentencing judge to undertake the first national empirical analysis of interjudge disparities post Booker. The results are striking: inter-judge sentencing disparities have doubled since the Guidelines became advisory. Some of the recent increase in disparities can be attributed to differential sentencing behavior associated with judge demographic characteristics, with Democratic and female judges being more likely to exercise their enhanced discretion after Booker. Newer judges appointed after Booker also appear less anchored to the Guidelines than judges with experience sentencing under the mandatory Guidelines regime.
Disentangling the effect of various actors on sentencing disparities, I find that prosecutorial charging is a prominent source of disparities. Rather than charge mandatory minimums uniformly across eligible cases, prosecutors appear to selectively apply mandatory minimums in response to the identity of sentencing judge, potentially through superseding indictments. Drawing on this empirical evidence, the Article suggests that recent sentencing proposals that call for a reduction in judicial discretion in order to reduce disparities may overlook the substantial contribution of prosecutors.
Split Texas appeals court refuses to allow additional habeas action for death row defendant complaining about racialized testimony
As reported in this local article from Texas, that "state’s highest criminal court Wednesday dismissed an appeal by death row inmate Duane Buck, who claims his sentence is improper because it was based, in part, on a psychologist’s finding that he presents a greater danger to society because he is black." Here is more about the ruling and its context:
In a 6-3 ruling, the Court of Criminal Appeals said that Buck had already filed his one guaranteed appeal, known as a petition for writ of habeas corpus, in 1999 and wasn’t legally entitled to another.
But the court’s newest member, Judge Elsa Alcala, submitted a blistering dissent that said Buck had been ill-served by previous lawyers and the court system. “The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness,” Alcala wrote in a dissenting statement joined by Judges Tom Price and Cheryl Johnson.
The upshot, Alcala said, is that no state or federal court has examined, let alone ruled on, Buck’s claim that his constitutional rights had been violated by the inclusion of inappropriate racial testimony and by the incompetence of previous lawyers. “This cannot be what the Legislature intended when it (voted in 1995 to provide) capital habeas litigants ‘one full and fair opportunity to present all claims in a single, comprehensive post-conviction writ of habeas corpus,’” Alcala wrote.
Though there is no question about Buck’s guilt — he gunned down a former girlfriend and her male friend, shot his stepsister and targeted a fourth adult in Houston — his case has become a rallying point for judicial reformers and civil rights advocates, largely because of its racial overtones at trial.
The controversy centers on punishment-phase testimony by psychologist Walter Quijano, a defense expert who told jurors that Buck was less likely to pose a future danger — and therefore not eligible for the death penalty — because the crime wasn’t a random act of violence. But Quijano also testified, unprompted, that “Hispanics and black people are overrepresented in the criminal justice system.” On cross-examination, a prosecutor followed up by asking Quijano if race, particularly being black, increases a defendant’s future dangerousness “for various complicated reasons.” Quijano replied, “Yes.”
Buck was sentenced to death in 1997. Three years later, however, then-state Attorney General John Cornyn, now a U.S. senator, acknowledged that seven death penalty convictions — including Buck’s — had been improperly influenced by Quijano’s testimony linking race to dangerousness. The attorney general’s office did not oppose new punishment trials for the other six inmates to cure the constitutional defect.
State lawyers later decided, however, to oppose a new trial for Buck, arguing that his case was “strikingly different” because Quijano was a defense expert whose questionable testimony was elicited by a defense lawyer. Instead, lawyers for Texas argued that Buck should have objected to the racial testimony in his 1999 habeas petition. Because he didn’t, Buck lost his chance to appeal the matter, they argued.
On Wednesday, the Court of Criminal Appeals agreed, dismissing Buck’s latest habeas petition as improper. In her dissent, Alcala said she would have accepted the new petition because Buck’s 1999 appeal was so poorly done that it amounted to no defense at all, depriving a death row inmate of a full review of constitutional claims before his execution.
Sunday, November 17, 2013
"Sentenced to a Slow Death"
The title of this post is the headline of this new New York Times editorial discussing this week's noteworthy new ACLU report on the thousands of persons serving LWOP sentences for non-violent offenses in the United States (first discussed here). Here are excerpts:
If this were happening in any other country, Americans would be aghast. A sentence of life in prison, without the possibility of parole, for trying to sell $10 of marijuana to an undercover officer? For sharing LSD at a Grateful Dead concert? For siphoning gas from a truck? The punishment is so extreme, so irrational, so wildly disproportionate to the crime that it defies explanation.
And yet this is happening every day in federal and state courts across the United States. Judges, bound by mandatory sentencing laws that they openly denounce, are sending people away for the rest of their lives for committing nonviolent drug and property crimes. In nearly 20 percent of cases, it was the person’s first offense.
As of 2012, there were 3,278 prisoners serving sentences of life without parole for such crimes, according to an extensive and astonishing report issued Wednesday by the American Civil Liberties Union. And that number is conservative. It doesn’t include inmates serving sentences of, say, 350 years for a series of nonviolent drug sales. Nor does it include those in prison for crimes legally classified as “violent” even though they did not involve actual violence, like failing to report to a halfway house or trying to steal an unoccupied car....
As in the rest of the penal system, the racial disparity is vast: in the federal courts, blacks are 20 times more likely than whites to be sentenced to life without parole for nonviolent crimes. The report estimates that the cost of imprisoning just these 3,278 people for life instead of a more proportionate length of time is $1.78 billion....
Several states are reforming sentencing laws to curb the mass incarceration binge. And Congress is considering at least two bipartisan bills that would partly restore to judges the power to issue appropriate sentences, unbound by mandatory minimums. These are positive steps, but they do not go far enough. As the report recommends, federal and state legislators should ban sentences of life without parole for nonviolent crimes, both for those already serving these sentences and in future cases. President Obama and state governors should also use executive clemency to commute existing sentences. Just one-fifth of all countries allow a sentence of life without parole, and most of those reserve it for murder or repeated violent crimes. If the United States is to call itself a civilized nation, it must end this cruel and ineffective practice.
Recent related posts:
- New ACLU report spotlights thousands of nonviolent prisoners serving LWOP terms
- New York Times op-ed asks "Serving Life for This?"
"Correcting a Fatal Lottery: a Proposal to Apply the Civil Discrimination Standards to the Death Penalty"
The title of this post is the title of this notable student note by Joseph Thomas now available for download via SSRN. Here is the abstract:
Claims of discrimination in death penalty proceeding receive disparate treatment compared to virtually every other type of discrimination: employment, housing, jury venire, reverse-racial discrimination, racial profiling by police, racial profiling by private security, racial gerrymandering, qualified immunity by a state prison guard, qualified immunity by city officials and police, felon disenfranchisement laws. They each use the same process when there is no direct evidence of discrimination -- a burden shifting framework to help present the evidence in an organized manner with a standard of the preponderance of the evidence that must be demonstrated to prove discrimination took place. Dissimilarly, death penalty proceedings are the exception to the rule -- all of the evidence is presented in one stage, without any organization, and the heightened standard of exceptionally clear proof must be demonstrated to prove discrimination took place.
With the use of disparate standards to adjudicate the exact same thing -- claims of discrimination without direct evidence -- makes the process used in the death penalty unconstitutional because with life and liberty at stake, defendants in the death penalty should be afforded more protections, not less. Alternatively, I propose my own standard for handling discrimination cases in the death penalty, based off of the civil standards.
Saturday, November 16, 2013
Is pot already really legal for middle-aged white folks?
The question in the title of this post is prompted by this recent New York Times commentary by Jim Dwyer headlined "A Marijuana Stash That Carried Little Risk." The piece is, I think, designed to complain about the impact and import of NYC stop-and-frisk policies, but my take-away is a bit distinct. Here are excerpts from the piece:
Walking down Eighth Avenue a few weeks ago, I made sure my backpack was fully zipped shut. Inside was a modest stash of pot, bought just an hour or so earlier. A friend knew someone in that world, and after an introduction, then a quiet, discreet meeting, I was on my way to the subway. Never before had I walked through Midtown Manhattan with it on my person. There were four cookies in vacuum-sealed pouches — “edibles” is the technical term — and then a few pinches of what was described as “herb.”
The innovations of Michael R. Bloomberg as mayor are legion, but his enforcement of marijuana laws has broken all records. More people have been arrested for marijuana possession than any other crime on the books. From 2002 through 2012, 442,000 people were charged with misdemeanors for openly displaying or burning 25 grams or less of pot.
I wasn’t sure about the weight of my stash — although a digital scale was used in the transaction, I didn’t see the display — but it didn’t feel too heavy. Still, I wasn’t about to openly display or burn it.
It turns out that there was little to fret over. While scores of people are arrested on these charges every day in New York, the laws apparently don’t apply to middle-aged white guys. Or at least they aren’t enforced against us.
“It is your age that would make you most unusual for an arrest,” said Professor Harry Levine, a Queens College sociologist who has documented marijuana arrests in New York and across the country. “If you were a 56-year-old white woman, you might get to be the first such weed bust ever in New York City — except, possibly, for a mentally ill person.”
About 87 percent of the marijuana arrests in the Bloomberg era have been of blacks and Latinos, most of them men, and generally under the age of 25 — although surveys consistently show that whites are more likely to use it.
These drug busts were the No. 1 harvest of the city’s stop, question and frisk policing from 2009 through 2012, according to a report released Thursday by the New York State attorney general, Eric T. Schneiderman. Marijuana possession was the most common charge of those arrested during those stops. The few whites and Asians arrested on these charges were 50 percent more likely than blacks to have the case “adjourned in contemplation of dismissal,” the report showed.
Now, having a little bit of pot, like a joint, is not a crime as long as you don’t burn or openly display it. Having it in my backpack was a violation of law, meaning that it is an offense that is lower than a misdemeanor. Pot in the backpack is approximately the same as making an illegal turn in a car. Taking it out and waving it in the face of a police officer or lighting up a joint on the street would drive it up to the lowest-level misdemeanor.
How was it that all the black and Latino males were displaying or burning pot where it could be seen by the police? The answer is that many of them were asked during the stops to empty their pockets. What had been a concealed joint and the merest violation of the law was transformed into a misdemeanor by being “openly displayed.” If these were illegal searches — and they very well could have been — good luck trying to prove it....
Michael A. Cardozo, the chief lawyer for the city, is eager to get an appeals court to throw out the findings of fact by a judge who ruled against the city in a lawsuit over the stop-and-frisk tactics. Mr. Cardozo appears to believe, mistakenly, that losing a lawsuit is going to damage the legacy of his patron, Mayor Bloomberg. Undoing a lawsuit will not unstain this history.
As for me, the pot got to a couple of people who might need it to get through some medical storms. It’s too risky for me to use: I already have a hard enough time keeping my backpack zipped.
Cross-posted at Marijuana Law, Policy and Reform
Wednesday, November 13, 2013
New ACLU report spotlights thousands of nonviolent prisoners serving LWOP terms
The ACLU has released a huge new report giving focused attention to the thousands of prisoners serving life without parole sentences in the United States for nonviolent drug and property crimes. This massive new report, which can be accessed at this link, is titled "A Living Death: Life without Parole for Nonviolent Offenses." This related webpage highlights some specific defendants and cases with this introduction:
For 3,278 people, it was nonviolent offenses like stealing a $159 jacket or serving as a middleman in the sale of $10 of marijuana. An estimated 65% of them are Black. Many of them were struggling with mental illness, drug dependency or financial desperation when they committed their crimes. None of them will ever come home to their parents and children. And taxpayers are spending billions to keep them behind bars.
Here is an excerpt from the 200+ page report's executive summary:
Using data obtained from the Bureau of Prisons and state Departments of Corrections, the ACLU calculates that as of 2012, there were 3,278 prisoners serving LWOP for nonviolent drug and property crimes in the federal system and in nine states that provided such statistics (there may well be more such prisoners in other states). About 79 percent of these 3,278 prisoners are serving LWOP for nonviolent drug crimes. Nearly two-thirds of prisoners serving LWOP for nonviolent offenses nationwide are in the federal system; of these, 96 percent are serving LWOP for drug crimes. More than 18 percent of federal prisoners surveyed by the ACLU are serving LWOP for their first offenses. Of the states that sentence nonviolent offenders to LWOP, Louisiana, Florida, Alabama, Mississippi, South Carolina, and Oklahoma have the highest numbers of prisoners serving LWOP for nonviolent crimes, largely due to three-strikes and other kinds of habitual offender laws that mandate an LWOP sentence for the commission of a nonviolent crime. The overwhelming majority (83.4 percent) of the LWOP sentences for nonviolent crimes surveyed by the ACLU were mandatory. In these cases, the sentencing judges had no choice in sentencing due to laws requiring mandatory minimum periods of imprisonment, habitual offender laws, statutory penalty enhancements, or other sentencing rules that mandated LWOP. Prosecutors, on the other hand, have immense power over defendants’ fates: whether or not to charge a defendant with a sentencing enhancement triggering an LWOP sentence is within their discretion. In case after case reviewed by the ACLU, the sentencing judge said on the record that he or she opposed the mandatory LWOP sentence as too severe but had no discretion to take individual circumstances into account or override the prosecutor’s charging decision.
As striking as they are, the numbers documented in this report underrepresent the true number of people who will die in prison after being convicted of a nonviolent crime in this country. The thousands of people noted above do not include the substantial number of prisoners who will die behind bars after being convicted of a crime classified as “violent” (such as a conviction for assault after a bar fight), nor do the numbers include “de facto” LWOP sentences that exceed the convicted person’s natural lifespan, such as a sentence of 350 years for a series of nonviolent drug sales. Although less-violent and de facto LWOP cases fall outside of the scope of this report, they remain a troubling manifestation of extreme sentencing policies in this country.
November 13, 2013 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (16) | TrackBack
Thursday, November 07, 2013
"Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing"The title of this post is the title of this notable new paper by Crystal Yang now available via SSRN. Here is the abstract:
The Federal Sentencing Guidelines were created to reduce unwarranted sentencing disparities among similar defendants. This paper explores the impact of increased judicial discretion on racial disparities in sentencing after the Guidelines were struck down in United States v. Booker (2005). Using data on the universe of federal defendants, I find that black defendants are sentenced to almost two months more in prison compared to their white counterparts after Booker, a 4% increase in average sentence length. To identify the sources of racial disparities, I construct a dataset linking judges to over 400,000 defendants. Exploiting the random assignment of cases to judges, I find that racial disparities are greater among judges appointed after Booker, suggesting acculturation to the Guidelines by judges with experience sentencing under mandatory regime. Prosecutors also respond to increased judicial discretion by charging black defendants with longer mandatory minimums.
I am always interested in sophisticated analyses of the post-Booker sentencing system, so I am looking forward to finding time to review this article closely. But, as with lots of "disparity" sentencing scholarship, I worry that this article is among those spending lots of time worrying about and trying to figure out whose sentences may be longer after Booker rather than worrying about and trying to figure out if all sentence remain way too long in the federal sentencing system.
November 7, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack
Friday, November 01, 2013
Second Circuit panel halts NYC stop-and-frisk remedies and removes district judge from caseAs reported via this New York Law Journal article, headlined "Circuit Rebuffs Scheindlin on Stop/Frisk," yesterday brought an eventful order from a panel of Second Circuit judges in a high-profile lawsuit about police practices in New York City. Though not involving a sentencing issue, I suspect reader of this blog might have thoughts they wish to share on this notable criminal justice development. Here are the basics from the start of the NYLJ report:
Southern District Judge Shira Scheindlin has been ordered off the stop-and-frisk cases by the U.S. Court of Appeals for the Second Circuit.
The circuit said the judge had given the "appearance of partiality" in her handling of Floyd v. City of New York, 13-3088, and it stayed pending appeal Scheindlin's appointment of a monitor to reform New York City Police Department stop-and-frisk policies and practices she had held unconstitutional.
Two days after oral argument on whether to stay Scheindlin's appointment of monitor Peter Zimroth, a partner at Arnold & Porter, to help remedy police violations of the Fourth and Fourteenth Amendments, the Second Circuit said Scheindlin presented the appearance of partiality both in how she came to preside over the Floyd case in the first place and in interviews she gave to reporters.
Judges Jose Cabranes, Barrington Parker and John Walker, in a three-page order, stayed Scheindlin's Aug. 12 liability opinion in Floyd, where she found a top-down police department practice of making hundreds of thousands of stops without reasonable suspicion of criminal activity, and that blacks and Hispanics were targets of those stops.
The circuit also stayed Scheindlin's opinion and order issued on Jan. 8, 2013 in the related case of Ligon v. City of New York, 13-3123, where she issued a preliminary injunction ordering police to cease making stops for trespass without reasonable suspicion outside of privately-owned buildings in the Bronx.
Finally, the circuit stayed the remedies opinion she issued on Aug. 12 that applied to both Floyd and Ligon. In addition to the appointment of a monitor, Scheindlin directed several other measures be taken, including a one-year pilot program in which police in one precinct in each of the city's five boroughs wear body cameras to record stop encounters for one year.
Wednesday, October 23, 2013
Federal sentencing reform: an unlikely Senatorial love story and a Booker double-dose?The silly title of this post is my first reaction to seeing this new report in the Wall Street Journal about the plans and priorities of US Senator-elect from New Jersey Cory Booker. The piece is headlined "On Booker's To-Do List: Revamp Drug Laws; New Jersey's Senator-Elect Face Challenges Once He Takes Office," and here are the excerpts that caught my special attention:
Senator-elect Cory Booker sees revamping drug policies as one of the principal issues he can champion once he takes office in Washington, D.C., and he believes he can draw bipartisan support on the issue—even among those who supported his Republican challenger in the special-election race.
Mr. Booker said he has had initial conversations with Senate Majority Leader Harry Reid about his opinions on the issue—such as eliminating mandatory minimum-sentencing laws for nonviolent offenders and reducing incarceration rates as a way to help save tax dollars.
In the special-election race that wrapped up last week, Mr. Booker campaigned on working across the aisle despite the bitter partisan divide in Washington. Drug policy could be one area where he finds some success, according to those who work in the field. He singled out Sen. Rand Paul of Kentucky, a libertarian, as someone who sees eye-to-eye with him on the issue.
"I want to work with him," said Mr. Booker, about Mr. Paul, during an interview Tuesday at his campaign office in the city he led as mayor for seven years. "I take everybody in the Senate as sincere people who want to make a difference."
Mr. Paul — a tea-party leader seen as a possible 2016 Republican presidential contender — endorsed Mr. Booker's challenger, Steve Lonegan, in the Oct. 16 Senate election. But a spokeswoman for Mr. Paul on Tuesday welcomed Mr. Booker's gesture.
"Senator Paul would be pleased to work with any member who believes that mandatory minimum sentencing is unnecessary," the spokeswoman said. "He looks forward to Senator Booker's assistance on this important issue."
I am very pleased to see Booker talking up federal sentencing reform as he heads inside the Beltway, and I am especially excited to see him calling for a partnership with Senator Rand. Indeed, if the two of them truly seek to make sentencing reform a priority in the weeks and months ahead, the momentum toward reform may really become unstoppable.
And, of course, the notable irony of another person with the surname Booker shaking up federal sentencing perhaps mertis some special attention by clever wanna-be-headline-writing commentators.
Some recent and older related posts:
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
- Is it too early want the new Senator from NJ to get going on sentencing reform?
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Senators Durbin and Lee come together to introduce "Smarter Sentencing Act"
- Does Senator Ted Cruz agree with GOP Senators Mike Lee and Rand Paul about the need for federal sentencing reform?
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."
- Another notable GOP member of Congress advocating for federal sentencing reform
October 23, 2013 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6) | TrackBack
Tuesday, October 15, 2013
Fascination and frustration with "finality fixation" in en banc Sixth Circuit Blewett argumentsAs mentioned in this recent post, I have so far resisted writing up my thoughts concerning last week's remarkable Sixth Circuit en banc Blewett oral argument on crack sentencing modifications. I have done so in part because I wanted to be able to devote a block of time to the task, and in part because via the Sixth Circuit website folks can (and should) listen for themselves to the audio recording of the hour-long argument via this link.
Now that I have had more time to think about last week's oral argument and the broader issues in Blewett, I continue to find myself (as the title of this post suggests) fascinated and frustrated by what I will call a "finality fixation" in the context of sentencing issues. A variation of this fixation made me a bit batty in the FSA pipeline debate that culminated in the Supreme Court's Dorsey ruling, and it also comes to play in the on-going dispute over whether the Supreme Court's Miller ruling will apply retroactively to final juve murder sentences. I am likely fixated on this notion of a "finality fixation" because I am currently working on a symposium article on this topic. Still, the tenor of much of the Blewett oral argument, and other arenas where concerns about sentencing finality seem often now to trump interests in sentencing fitness and fairness, have a way of driving me to fits of fascination and frustration.
At the risk of repeating parts of the brief on Eighth Amendment issues which I helped file on behalf of the NACDL (and which is discussed and linked via this prior post), let me try here to explain what still makes me a bit nutty about cases like Blewett.
Point 1: Each and every federal criminal justice policy-maker in the three branches of the federal government — Congress, the Prez and his Justice Department, and the US Sentencing Commission — have all expressly and formally declared that all 100-1 ratio pre-FSA crack prison sentences were unfair, excessive and ineffectual, AND Congress enacted the "Fair Sentencing Act" to lower all federal crack sentences by raising the trigger quantity for mandatory minimum prison terms and by mandated that the US Sentencing Commission significantly lower all crack guideline prison ranges.
Point 2: When it reformed modern sentencing rules and eliminated parole release, Congress created a express statutory sentencing modification mechanism — in 18 U.S.C. § 3582(c)(2) — through which offenders still in prison who were "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission [can move for a court to] reduce the term of imprisonment," AND thousands of the most serious crack offenders sentenced before the FSA have had their prison sentences reduced through this stautory mechanism. (This latest USSC report indicates not only that 7,300+ pre-FSA crack offenders have had their prison terms reduced by an average of 29 months, but also that thousands of these crack offenders got reduced sentences despite having extensives criminal histories and/or having used a weapon in their offense and/or having a leadership role in the offense. See Table 6 of USSC report.)
Point 3: Congress, the Prez and his Justice Department, and the US Sentencing Commission have all ordered, authorized and/or not objected to thousands of more serious pre-FSA crack offenders being eligble for (and regularly receiving) reduced prison terms via the statutory sentencing modification mechanism of 3582(c)(2). The Blewetts and other less serious pre-FSA crack offenders whose sentences were impacted by the 100-1 mandatory minimum terms and who are still in federal prison serving (now-repealed) pre-FSA crack sentences that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual are now simply arguing that they, too, should be eligible to use the same statutory sentence modification mechanism that thousands of the most serious crack offenders have already benefitted from.
Point 4: Nobody has, to my knowledge, even tried to offer a substantive defense or penological justification as to why the Blewetts and only those less serious pre-FSA crack offenders should not even be eligible for the statutory sentencing modification mechanism of 3582(c)(2) and thus must serve the full duration of (now-repealed) pre-FSA crack sentences. Indeed, it seem to me at least that it is not just unjust, but irrational and cruel and unusual, to require only the least serious pre-FSA crack offenders to serve out prison terms that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual, especially given that thousands of the most serious pre-FSA crack offenders can and have already benefitted from the statutory sentencing modification mechanism of 3582(c)(2). (Critically, Congress has never stated nor even suggested, either expressly or implicitly, that it wanted the Blewetts and only those less serious pre-FSA crack offenders to be catergorically ineligible for sentence modification. Indeed, I think the fair implication of the express provisions of the FSA is that all pre-FSA crack offenders should at least have a chance for sentence modification pursuant to 3582(c)(2).)
In light of all these points, in my view the only plausible rationale for denying the Blewetts and other less serious pre-FSA crack offenders a chance for sentence modification is the oft-stated, but rarely thought-through, idea of "finality." And though I think finality is an important policy concern when defendants are attacking long-final convictions, I do not think this concept of finality historically has or now should be given great weight when a defendant is only seeking to modestly modify a sentence. Further, when a federal defendant is seeking only a modest prison sentence modification under an express statutory provision created by Congress, the comity and separation of powers concerns that might also give finality interests extra heft are not present.
Thus my contention that only a "finality fixation" fully accounts for why so many judges seem resistant to the various legal arguments that the Blewetts and other less serious crack offenders are making in these FSA cases. As I see it, given the text and purposes of the FSA and the text and purposes of 3852(c)(2), the eagerness of judges to deny relief to the Blewetts and other less serious crack offenders reflects a fixation on the notion that, even in this remarkable and unique setting, concerns about sentencing finality should still consistently and conclusively trump the need to achieving sentencing fitness and fairness. And that reality fascinates and frustrates me.
Am I silly, dear readers, to be so fascinated and frustrated by all this? I am hoping, especially from those eager to see the Blewett panel decision undone (which I now fear a majority of the Sixth Circuit is planning to do), for responses in the comments that might help me better see what my analysis above is missing and/or why I should not be so nutty about these "finality fixation" matters.Related posts on Blewett:
- On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
- "Crackheaded Ruling by Sixth Circuit"
- How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?
- Two weeks later, has there been any significant and noteworthy Blewett blowback?
- As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling
- Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case
- My Sixth Circuit amicus brief effort now filed explaining my Eighth Amendment FSA views in Blewett
- Full Sixth Circuit grants en banc review in Blewett
- Audio of Sixth Circuit en banc Blewett oral argument available (and drinking game suggestion)
October 15, 2013 in Examples of "over-punishment", Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Saturday, October 12, 2013
Audio of Sixth Circuit en banc Blewett oral argument available (and drinking game suggestion)I have been busy and distracted by a variety of work (and non-work) activities ever since attending the remarkable Sixth Circuit en banc Blewett oral argument concerning crack sentencing modifications, and I have not wanted to write up my thoughts on the argument until I had a big block of time to devote to the task. Ergo, I expect I will be posting commentary on the oral argument in this space sometime toward the end of this weekend.
In the meantime, thanks to the tech-friendly Sixth Circuit website, everyone can listen to an audio recording of Wednesday afternoon's hour-long argument via this link. I encourage everyone interested in these issues to take time to listen to the recording. (And, if one is eager to make the listening experience even more exciting, I would recommend using the audio as a drinking game during which a listener must take a big drink every time someone says "Professor Berman." The brief I helped file on behalf of the NACDL, which is discussed and linked via this prior post, was subject to discussion during the argument even though there was, disappointingly, very little focused consideration of the Eighth Amendment jurisprudence I stressed in that brief.)
October 12, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, October 08, 2013
"Native American Sentencing Disparity and the Case of Dana Deegan"
The title of this post is the title of this notable event taking place next week at the University of North Dakota School of Law. Long-time readers may vaguely recall this 2010 post about the Eighth Circuit panel's split ruling affirming the defendant's within-guideline sentence in US v. Deegan, No. 08-2299 (8th Cir. May 25, 2010) (available here). I called the Deegan case remarkable in part because of the criminal offense (second-degree murder of a newborn due to neglect), in part because of the offender (the newborn's mother, a Native American who has suffered a long history of physical and sexual abuse), and in part because of a must-read 50+ page dissent by Judge Myron Bright.
I am very pleased that the (under-explored) sentencing issues spotlighted by one case and one dissent has now prompted a full panel discussion. And I am very sad that I am unable to skip out on all my classes to head out to Grand Forks for this event; the topics and speakers looks like it would be worth the trip:
Schedule of Speakers:
Overview of the Disparity Problem and its Origins
- BJ Jones, Director, Tribal Judicial Institute & Chief Justice of the Turtle Mountain Tribal Court of Appeals
- Chris Ironroad, Associate Attorney at Sonosky, Chambers, Sachse, Endreson & Perry, LLP
Impact of Disparity on Native Americans - The Case of Dana Deegan
- Judge Myron H. Bright, United States Court of Appeals for the Eighth Circuit
- Judge David E. Ackerson, St. Louis County, Minnesota
- Sarah Deer, Assistant Professor of Law, William Mitchell College of Law
- Marmie Jotter, sister of Dana Deegan and licensed psychotherapist
How the Guidelines Unfairly Treat Domestic Violence Victims
- Radmilla Cody - Ms. Navajo Nation 1997-98 and recording artist
Saturday, October 05, 2013
Noting the shame of prison rape in incarceration nationDavid Kaiser and Lovisa Stannow have this notable new article in the latest issue of The New York Review of Books headlined "The Shame of Our Prisons: New Evidence." Here is how it begins:
As recently as five years ago, American corrections officials almost uniformly denied that rape in prison was a widespread problem. When we at Just Detention International — an organization aimed at preventing the sexual abuse of inmates — recounted stories of people we knew who had been raped in prison, we were told either that these men and women were exceptional cases, or simply that they were liars. But all this has changed.
What we have now that we didn’t then is good data. The Bureau of Justice Statistics (BJS), an agency within the Justice Department, has conducted a series of studies of the problem based on anonymous surveys that, between them, have reached hundreds of thousands of inmates. Those who agreed to take the surveys, without being informed in advance of the subject, spent an average of thirty-five minutes responding to questions on a computer touchscreen, with synchronized audio instructions given through headsets. The officials in charge either positioned themselves so they couldn’t see the computer screens or left the room.
The consistency of the findings from these surveys is overwhelming. The same factors that put inmates at risk of sexual abuse show up again and again, as do the same patterns of abuse involving race and gender, inmates and guards. Prison officials used to say that inmates were fabricating their claims in order to cause trouble. But then why, for example, do whites keep reporting higher levels of inmate-on-inmate sexual abuse than blacks? Is there some cultural difference causing white inmates to invent more experiences of abuse (or else causing blacks to hide what they are suffering)? If so, then why do blacks keep reporting having been sexually abused by their guards at higher rates than whites? The more closely one looks at these studies, the more persuasive their findings become. Very few corrections professionals now publicly dispute them.
The BJS has just released a third edition of its National Inmate Survey (NIS), which covers prisons and jails, and a second edition of its National Survey of Youth in Custody (NSYC). These studies confirm some of the most important findings from earlier surveys — among others, the still poorly understood fact that an extraordinary number of female inmates and guards commit sexual violence. They also reveal new aspects of a variety of problems, including (1) the appalling (though, from state to state, dramatically uneven) prevalence of sexual misconduct by staff members in juvenile detention facilities; (2) the enormous and disproportionate number of mentally ill inmates who are abused sexually; and (3) the frequent occurrence of sexual assault in military detention facilities.
According to the latest surveys, in 2011 and 2012, 3.2 percent of all people in jail, 4.0 percent of state and federal prisoners, and 9.5 percent of those held in juvenile detention reported having been sexually abused in their current facility during the preceding year. (Jails, which are usually run by county governments, typically hold people who have recently been arrested and are awaiting trial or release, or else serving sentences of less than a year; prisons are for those serving longer sentences.) The rate of abuse in prisons is slightly lower than has been reported in previous years, but the difference is too small to be statistically significant. For those in jail, the number has not shifted at all. The rate of abuse in state-run juvenile facilities has declined significantly since the 2008–2009 youth survey, in which 12.6 percent of juveniles reported sexual victimization. However, this finding doesn’t have much impact on the total number of people victimized since many fewer are held in juvenile detention than in prisons and jails.
Thursday, October 03, 2013
Guess which state has the highest rate of incarceration of black men in the entire US?
Click through to see the somewhat surprising answer...This NPR story answers the question in the title of this post. The piece is headlined "Wisconsin Prisons Incarcerate Most Black Men In U.S.," and it starts this way:
The United States prison population is still the world's highest, with more than 1.5 million people behind bars. Black men are more likely to be sent to prison than white men, and often on drug offenses. A study from the University of Milwaukee-Wisconsin looked at that state's incarceration rates and found they were the highest in the country for black men.
The University of Wisconsin researchers say their analysis was truly eye-opening. They found that Wisconsin's incarceration rate for black men — 13 percent — was nearly double the country's rate.
"We were so far above everybody else. That just sort of stunned us when we saw that," says Professor John Pawasarat, who studied two decades of Wisconsin's prison and employment data.
Pawasarat found that nearly 1 in 8 black men of working age in Milwaukee County had served some time in the state's correctional facilities. At 13 percent, the rate was about 3 percentage points above Oklahoma's — the state with the second highest rate of incarceration for black males. (Gene Demby wrote about this same topic and noted that Wisconsin also has the highest rate of Native American men who are behind bars. One in 13 Indian men are incarcerated.)
Tuesday, October 01, 2013
"Jailing Black Babies"The provocative title of this post is the provocative title of this provicative new article now available via SSRN and authored by James Dwyer. Here is the abstract (the last sentence of which, I suspect, may appeal to (some? many?) readers of this blog:
In many situations of family dysfunction stemming from poverty, the interests of parents are in conflict with the interests of their offspring. This presents a dilemma for liberals. We want to mitigate the harsh consequences and suffering that conditions we deem unjust have caused some adults, especially adults of minority race. But we are also concerned about the welfare of children born into impoverished and troubled communities. The predominant liberal response to this dilemma has been to sidestep it by ignoring or denying the conflict and to then take positions aimed at protecting parents’ interests, without giving serious attention to the impact on children. The result is a set of liberal polies that effectively imprison black children in dysfunctional families and communities and so ensure that they fall into the inter-generational cycle of poverty, addiction, and criminality.
Epitomizing this phenomenon is the fast-growing phenomenon of states’ placing newborn children, predominantly of minority race, into prison to live for months or years with their incarcerated mothers. Advocates for incarcerated women, not advocates for children, have promoted prison nurseries, and they have done so with no research support for any hope of positive child welfare outcomes. Conservative legislators and prison officials agree to experiment with such programs when convinced they will reduce recidivism among female convicts, a supposition that also lacks empirical support. Remarkably, states have placed babies in prisons without anyone undertaking an analysis of the constitutionality of doing so.
This Article presents a compelling child welfare case against prison nurseries, based on rigorous examination of the available empirical evidence, and it presents the first published analysis of how constitutional and statutory rules governing incarceration and civil commitment apply to housing of children in prisons. It shows that prison nursery programs harm the great majority of children who begin life in them, and it argues that placing infants in prison violates their Fourteenth Amendment substantive and procedural due process rights as well as federal and state legislation prohibiting placement of minors in adult prisons.
This Article further challenges liberal family policy more generally. Its final Part describes other policy contexts in which liberal advocacy and scholarship relating to persons who are poor or of minority race consistently favors the interests of adults in this population over the interests of children. It offers a diagnosis of why this occurs, and it explains why this is both morally untenable and ultimately self-defeating for liberals committed to racial equality and social justice. The Article’s broader thesis is that liberals bear a large share of the responsibility for perpetuation of blacks’ subordination.
Thursday, September 19, 2013
"Holder directs attorneys to seek reduced sentences in pending drug cases"The title of this post is the headline of this Washington Post report on the latest announcement from AG Eric Holder concerning federal drug prosecution policies. Here is how the article starts:
Attorney General Eric H. Holder Jr. said Thursday that he has directed U.S. attorneys across the country to apply new sentencing guidelines to ongoing drug cases so that low-level, nonviolent offenders will not face severe mandatory sentences.
The new guidelines will be applied to suspects who have been charged but not yet put on trial, as well as to individuals who have been convicted but not yet sentenced. The directive does not affect offenders already sentenced or serving time in prison.
Holder announced last month that low-level, nonviolent drug offenders would no longer be charged with offenses that impose severe mandatory sentences. The new directive marked an expansion of that effort.
“I am pleased to announce today that the department has issued new guidance to apply our updated charging policy not only to new matters, but also to pending cases where the defendant was charged before the policy was issued but is still awaiting adjudication of guilt,” Holder said in a speech to the Congressional Black Caucus.
AG Holder's full speech to the Congressional Black Caucus Foundation Criminal Justice Issues Forum is now available at this link, and here are some additional excerpts:
America’s criminal justice system is in need of targeted reform. Throughout this country, too many Americans are trapped – and too many communities are weakened – by a vicious cycle of poverty, criminality, and incarceration. Too many people go to too many prisons for far too long – and for no truly good law enforcement reason. The U.S. prison population has grown at an astonishing rate over the last three decades – by almost 800 percent since 1980, despite the fact that America’s overall population has increased by only about a third. As we speak, more than 219,000 federal inmates are currently behind bars. Almost half are serving time for drug-related crimes. And many have substance use disorders.
Outside of the federal system, an additional nine to 10 million people cycle through local jails each year. And roughly 40 percent of former federal prisoners – along with more than 60 percent of former state prisoners – are rearrested or have their supervision revoked within three years after their release, at great cost to American taxpayers.
It’s clear, in a broad sense, that 20th-century criminal justice solutions are just not adequate to address the 21st century challenges we face. There’s no question that incarceration will always have a role to play in our criminal justice system. But there’s also no denying that widespread incarceration at the federal, state, and local levels imposes significant human and moral costs – as well as a tremendous economic burden, totaling $80 billion in 2010 alone.
Especially in times of widespread budgetary difficulties and federal sequestration – when leaders at every level of government have been asked to do more with less – we must resolve, as a country and as a people, to do much better....
It’s time – in fact, it’s well past time – to take a fundamentally new approach. And today, I am proud to join you in working to ensure that – in this area and many others – the scales of justice find a more appropriate balance....
In addition – in recent months – the Justice Department also has updated its framework for considering compassionate release for some inmates who face extraordinary or compelling circumstances, and who pose no threat to the public. Of course, as our primary responsibility, we must ensure public safety. But considering the applications of certain people with convictions for nonviolent offenses – such as individuals seeking release on medical grounds, or elderly inmates who did not commit violent crimes and have served significant portions of their sentences – is the right thing to do. It is the smart thing to do. And it will allow the Bureau of Prisons to evaluate compassionate release applications through a careful review process before each case comes before a judge – who will make a final determination on whether release is warranted.
Notable new empirical research exploring legislators, prosecutors and "Expressive Enforcement"A helpful reader altered and recommended to me this notable new article on SSRN authored by Avlana Eisenberg and titled "Expressive Enforcement." Here is the abstract:
Laws send messages, some of which may be heard at the moment of enactment. However, much of a law’s expressive impact is bound up in its enforcement. Although scholars have extensively debated the wisdom of expressive legislation, their discussions have focused largely on enactment-related messaging, rather than on expressive enforcement. This Article uses hate crime laws — the paradigmatic example of expressive legislation — as a case study to challenge conventional understandings of the messaging function of lawmaking. The Article asks: How do institutional incentives shape prosecutors’ enforcement decisions, and how do these decisions affect the message of hate crime laws?
To answer that question, the Article presents original data from the first multi-state qualitative empirical study of hate crime prosecution. The findings help to explain a paradox: in archetypal hate crime cases involving animus directed at a victim’s core identity features — such as race or sexual orientation — prosecutors may decline to include hate crime charges because of statutory incentives, difficulty of proving motive, and concerns about jury reaction. Conversely, hate crime enforcement may be appealing to prosecutors in precisely those cases that are least likely to further the expressive purposes of hate crime laws. After exploring this mismatch, the Article identifies some areas where there may be irreconcilable tensions between the expressive goals of legislators and the incentives of prosecutors and, in other areas, offers recommendations to unify legislative goals with expressive enforcement.
Tuesday, September 03, 2013
"Evidence-Based Sentencing and the Scientific Rationalization of Discrimination"The title of this post is the title of this provocative new paper by Sonja Starr now available via SSRN. Here is the abstract:
This paper critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise-condemned discrimination, sanitized by scientific language.
To demonstrate that this practice should be subject to heightened constitutional scrutiny, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that it cannot survive that scrutiny and is undesirable policy, I review the empirical evidence underlying the instruments. I show that they provide wildly imprecise individual risk predictions, that there is no compelling evidence that they outperform judges’ informal predictions, that less discriminatory alternatives would likely perform as well, and that the instruments do not even address the right question: the effect of a given sentencing decision on recidivism risk. Finally, I also present new, suggestive empirical evidence, based on a randomized experiment using fictional cases, that these instruments should not be expected merely to substitute actuarial predictions for less scientific risk assessments, but instead to increase the weight given to recidivism risk versus other sentencing considerations.