Tuesday, April 08, 2014

NY Times debates "What It Means if the Death Penalty Is Dying"

The Room for Debate section of the New York Times has this new set of notable commentaries discussing the death penalty in the United States.  Here is the section's set up:

Last week, lawmakers in New Hampshire heard testimony on a bill outlawing the death penalty.  If passed, the law would make New Hampshire the 19th state to abolish capital punishment.  The United States, the only country in the Americas to practice the death penalty last year, executed 39 people, four fewer than the year before, and Texas accounted for 41 percent of them, according to Amnesty International.

As executions become concentrated in fewer and fewer states and racial disparities continue, does the application of capital punishment make it unconstitutionally cruel and unusual?

Here are the contributions, with links via the commentary titles:

April 8, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (8) | TrackBack

Monday, April 07, 2014

"Billion Dollar Divide: Virginia's Sentencing, Corrections and Criminal Justice Challenge"

JPI reportThe title of this post is the title of a new report by the Justice Policy Institute, which was released last week, is available here, and is summarized via this press release.  Here are excerpts from the press release:

As Virginia lawmakers consider a budget that would see corrections spending surpass a billion dollars in general funds, a new report points to racial disparities, skewed fiscal priorities, and missed opportunities for improvements through proposed legislation, and calls for reforms to the commonwealth’s sentencing, corrections and criminal justice system.

According to Billion Dollar Divide Virginia’s Sentencing, Corrections and Criminal Justice Challenge, ... while other states are successfully reforming their sentencing laws, parole policies and drug laws, Virginia is lagging behind and spending significant funds that could be used more effectively to benefit public safety in the commonwealth....

According to the report, approximately 80 percent of the corrections budget is being spent on incarcerating people in secure facilities, while only about 10 percent of the budget is spent on supervising people in the community. Put another way, in 2010 for every dollar the Commonwealth of Virginia spent on community supervision, it spent approximately $13 on costs for those incarcerated. Other states have a better balance between prison spending, and supporting individuals in the community.

"Taxpayers' wallets – and more important, people's lives – are in jeopardy," said Marc Schindler, executive director of JPI. "Instead of planning to spend more than $1 billion on an ineffective corrections system, Virginia should be looking to policies that are being implemented successfully in other states to make wiser use of precious resources and get better public safety outcomes.”...

The report describes challenges facing Virginia’s sentencing, corrections and criminal justice system, including:

  • Worrisome racial and ethnic disparities in how the state deals with drugs and drug crimes: African Americans make up approximately 20 percent of the Virginia population, but comprise 60 percent of the prison population, and 72 percent of all people incarcerated for a drug arrest.  JPI has compiled information for the largest Virginia cities and counties that show the disparities in drug enforcement, and the latest data show Virginia’s drug arrest rates on the rise;
  • More people serving longer sentences and rising length-of-stay: The changes to Truth-in-Sentencing enacted in the 1990s eliminated parole, and reduced access to earned-time and good-time credits.  The commonwealth has added more mandatory minimums that have lengthened prison terms, and about one quarter of all of Virginia’s mandatory minimum sentences involve drug offenses.  Between 1992 and 2007, there has been a 72 percent increase in individuals serving time for drug offenses.  There has also been a substantial and very expensive increase in the number of elderly individuals incarcerated in Virginia, despite strong evidence that these individuals pose little threat to public safety....

April 7, 2014 in Drug Offense Sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Does an imprisoned white supremacist have a right to an anti-Kosher diet?

The question in the title of this post is prompted by this local article from Illinois headlined "White Supremacist Hale Sues Bureau Of Prisons For Violating His Rights." Here are the basics:

It was nine years ago today that Matt Hale of East Peoria was sentenced to 40 years in prison – convicted of soliciting the murder of a federal judge. Now, without a lawyer, Hale is suing the federal Bureau of Prisons because he says his rights are being denied.

Matt Hale, a minister in the religion of Creativity, is suing because he says the federal prison system has been taking away his mail privileges.

“They just come in and announce to him that his mail is being taken away from him,” said Evelyn Hutcheson, Hale’s 75-year-old mother. Hutcheson is his staunchest defenders. She says her son is moral, never plotted against a judge – and she says his trial was dirty and tainted. “I would like to see him freed before I die. I really would. But I just know how dirty it is. I’m sorry. I know how dirty it actually is. And who am I? I’m just a little peon. I’m nothing.”

Besides wanting to get his mail regularly, Hale is suing the prison system to be served the diet he says his anti-Jewish religion requires: uncooked food like raw fruits, vegetables and nuts.

April 7, 2014 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (16) | TrackBack

Tuesday, March 25, 2014

"Victim Gender and the Death Penalty"

The title of this post is the title of this notable new empirical paper authored by a whole bunch of folks at Cornell Law School and now available via SSRN. Here is the abstract:

Previous research suggests that cases involving female victims are more likely to result in death sentences.  The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware.  Death was sought much more for murders of either male or female white victims compared to murders of black male victims.  Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases.  The presence of sexual victimization, the method of killing, the relationship between the victim and the defendant, and whether or not the victim had family responsibilities all predicted the likelihood of a death sentence and help to explain why cases with female victims are more likely to be punished with a death sentence.

March 25, 2014 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

Great coverage of crack crimes and punishments via Al Jazeera America

I am pleased (and a bit overwhelmed) by this huge new series of stories, infographics, pictures, personal stories concerning crack crimes and punishment put together by Al Jazeera America.  Here are links to just some parts of the series:

Waiting on a fix: Legal legacy of the crack epidemic: In the 1980s, the US went to war on crack. Thirty years on, judiciary is still hooked on unfair and unequal sentencing

Documenting the ravages of the 1980s crack epidemic: Renowned documentary photographer Eugene Richards recorded the brutal realities facing communities affected by crack

'Life without parole is a walking death': Andre Badley, imprisoned in 1997 for dealing crack, could spend his life behind bars while bigger dealers go free.

A rush to judgment: In 1986, lawmakers wrote new mandatory crack cocaine penalties in a few short days, using the advice of a perjurer.

March 25, 2014 in Data on sentencing, Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender | Permalink | Comments (8) | TrackBack

Sunday, March 23, 2014

Noting disparities resulting from reservation sentencing being federal sentencing

Ndlr-cover-86-3This local article from North Dakota, which is headlined "Article scrutinizes disparities in sentencing on reservations: American Indians face harsher penalties when tried in fed court vs state courts, advocates say," highlights an often-overlooked pocket of the federal sentencing system. Here are excerpts from the lengthy piece:

Dana Deegan is serving a 10-year sentence for placing her newborn son in a basket and abandoning him for two weeks, allowing him to die. Deegan, who was 25 years old when her son died in 1998 on the Fort Berthold Indian Reservation, had three older children and suffered from depression and abuse. She pleaded guilty in 2007 to second-degree murder to avoid a possibly harsher sentence.

Advocates have said her sentence was much harsher than those given for similar cases prosecuted in state courts in North Dakota – a disparity that critics say applies generally because American Indians accused of major crimes on reservations are prosecuted in federal courts, which generally have stiffer penalties. The issue, which lawyers, judges and legal scholars have long discussed, will soon be the subject of a national study by the U.S. Sentencing Commission.

Senior Judge Myron Bright of the 8th U.S. Circuit Court of Appeals, who is based in Fargo, has for years been an outspoken critic of sentencing disparities involving prosecution of American Indians on reservations. The issue is also the focus of an article calling for changes to address the sentencing gaps in the current issue of the North Dakota Law Review [available at this link], and the study is backed by Tim Purdon, U.S. attorney for North Dakota. The law review authors, one of them a tribal judge in North Dakota, noted the Deegan case as a glaring example of the gap in sentences between the federal courts — whose defendants are overwhelmingly American Indians prosecuted on reservations — and comparable crimes tried in state courts.

Non-Indian women in two similar cases prosecuted in North Dakota state courts received much lighter sentences, authors BJ Jones and Christopher Ironroad noted [in this article, titled "Addressing Sentencing Disparities for Tribal Citizens in the Dakotas: A Tribal Sovereignty Approach"]. In 2000, a 22-year-old woman was sentenced in Cass County for negligent homicide to three years, with imposition suspended for three years of supervised probation, which was terminated less than two years later, according to court records.... In 2007, a 28-year-old woman was sentenced in Burleigh County to 10 years in prison, with eight years suspended, for causing the death of her newborn, which died after being left in a toilet....

Federal courts have jurisdiction on Indian reservations under the Major Crimes Act passed in 1885. Ordinarily, states prosecute “street crimes,” including assault, burglary, sexual assault, murder and vehicular manslaughter. Because of strict sentencing guidelines, with mandatory minimums and no probation or time off for good behavior, sentences in federal court generally are higher than those in state courts, at least in states including North Dakota, South Dakota and Montana, lawyers and federal judges agree. “The law needs to be changed and Indians need to be treated on an equal basis, the same as their white neighbors,” Bright said.

But many agree that state penalties for certain crimes, such as vehicular manslaughter, are higher.  That, in fact, was a finding the last time the issue of sentencing disparities was studied in 2003 by an advisory group for the Sentencing Commission. But the group found the perception of an unfair disparity in sentences received by American Indians in federal court compared to state court was “well founded,” Purdon wrote the chairman of the Sentencing Commission earlier this month.

Purdon, who serves as chairman of the Attorney General’s Native American Issues Subcommittee, said more study is needed into the widespread perception of unfair sentences. “If the court system is perceived as unfair it undermines my ability to make the reservations safer,” he said, adding that the U.S. Department of Justice supports further study of the issue.

Two federal trial judges in North Dakota agreed that, because of federal sentencing guidelines, criminal sentences sometimes are higher than state court sentences, but cautioned that the reverse also is true for certain crimes.  “I believe it works both ways,” said Chief Judge Ralph Erickson of U.S. District Court in Fargo.  “Some crimes are less than customarily handed down in state courts,” such as vehicular homicide.

Much of the disparity comes from the lack of parole in the federal court system, meaning a defendant serves the entire sentence, Erickson said. “That’s where the rub comes in,” he said. “We’re aware of that and it’s frustrating.”... A comprehensive study is needed to determine if there are, in fact, sentencing disparities, Erickson said. If so, then solutions can be identified.

“There’s an overall disparity in sentencing,” said Judge Daniel Hovland of U.S. District Court in Bismarck. “Generally, federal sentences tend to be more severe,” but he agreed with Erickson that there are exceptions, including manslaughter. “I think the sentencing commission is going to take a much closer look at that issue and it will certainly bode well for everyone in the judicial system,” Hovland said.  “I’m confident they’ll reach a fair assessment.”

March 23, 2014 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, March 13, 2014

"The New Jim Crow? Recovering the Progressive Origins of Mass Incarceration"

The title of this post is the title of this notable recent article by Anders Walker and available via SSRN. Here is the abstract:

This article revisits the claim that mass incarceration constitutes a new form of racial segregation, or Jim Crow.  Drawing from historical sources, it demonstrates that proponents of the analogy miss an important commonality between the two phenomena, namely the debt that each owe to progressive and/or liberal politics.  Though generally associated with repression and discrimination, both Jim Crow and mass incarceration owe their existence in part to enlightened reforms aimed at promoting black interests; albeit with perverse results.  Recognizing the aspirational origins of systematic discrimination marks an important facet of comprehending the persistence of racial inequality in the United States.

March 13, 2014 in Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Sunday, March 09, 2014

LDF releases latest, greatest accounting of death row populations

As reported here by the Death Penalty Information Center, the NAACP Legal Defense Fund has just released its latest version of its periodic accounting of capital punishment developments in the United States. This document, available here, is titled simply "Death Row, USA," and reports on data though July 1, 2013.  Here is how DPIC summarizes some of its key findings:

The latest edition of the NAACP Legal Defense Fund's Death Row, USA shows the total death row population continuing to decline in size. The U.S. death-row population decreased from 3,108 on April 1, 2013, to 3,095 on July 1, 2013.  The new total represented a 12% decrease from 10 years earlier, when the death row population was 3,517.  The states with the largest death rows were California (733), Florida (412), Texas (292), Pennsylvania (197), and Alabama (197).  In the past 10 years, the size of Texas's death row has shrunk 36%; Pennsylvania's death row has declined 18%; on the other hand, California's death row has increased 17% in that time.  

The report also contains racial breakdowns on death row. The states with the highest percentage of minorities on death row were Delaware (78%) and Texas (71%), among those states with at least 10 inmates. The total death row population was 43% white, 42% black, 13% Latino, and 2% other races.

March 9, 2014 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Race, Class, and Gender | Permalink | Comments (6) | TrackBack

Friday, March 07, 2014

"Criminal Records, Race and Redemption"

The title of this post is the title of this notable paper I just noticed via SSRN authored by Michael Pinard. Here is the abstract:

Poor individuals of color disproportionately carry the weight of a criminal record. They confront an array of legal and non-legal barriers, the most prominent of which are housing and employment.  Federal, State and local governments are implementing measures aimed at easing the everlasting impact of a criminal record.  However, these measures, while laudable, fail to address the disconnection between individuals who believe they have moved past their interactions with the criminal justice system and the ways in which decision makers continue to judge them in the years and decades following those interactions.  These issues are particularly pronounced for poor individuals of color, who are uniquely stigmatized by their criminal records.

To address these issues, this article proposes a redemption-focused approach to criminal records.  This approach recognizes that individuals ultimately move past their interactions with the criminal justice system and, therefore, they should no longer be saddled by their criminal records.  Thus, the article calls for greatly expanding laws that allow individuals to remove their criminal records from public access and, in the end, allow them to reach redemption.

March 7, 2014 in Collateral consequences, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (5) | TrackBack

Thursday, March 06, 2014

"How to Lie with Rape Statistics: America's Hidden Rape Crisis"

The title of this post is the title of this intriguing new paper on SSRN authored by Corey Rayburn Yung. Here is the abstract:

During the last two decades, many police departments substantially undercounted reported rapes creating "paper" reductions in crime.  Media investigations in Baltimore, New Orleans, Philadelphia, and St. Louis found that police eliminated rape complaints from official counts because of cultural hostility to rape complaints and to create the illusion of success in fighting violent crime.  The undercounting cities used three difficult-to-detect methods to remove rape complaints from official records: designating a complaint as "unfounded" with little or no investigation; classifying an incident as a lesser offense; and, failing to create a written report that a victim made a rape complaint.

This study addresses how widespread the practice of undercounting rape is in police departments across the country.  Because identifying fraudulent and incorrect data is essentially the task of distinguishing highly unusual data patterns, I apply a statistical outlier detection technique to determine which jurisdictions have substantial anomalies in their data.  Using this novel method to determine if other municipalities likely failed to report the true number of rape complaints made, I find significant undercounting of rape incidents by police departments across the country.  The results indicate that approximately 22% of the 210 studied police departments responsible for populations of at least 100,000 persons have substantial statistical irregularities in their rape data indicating considerable undercounting from 1995 to 2012.  Notably, the number of undercounting jurisdictions has increased by over 61% during the eighteen years studied.

Correcting the data to remove police undercounting by imputing data from highly correlated murder rates, the study conservatively estimates that 796,213 to 1,145,309 complaints of forcible vaginal rapes of female victims nationwide disappeared from the official records from 1995 to 2012.  Further, the corrected data reveal that the study period includes fifteen to eighteen of the highest rates of rape since tracking of the data began in 1930. Instead of experiencing the widely reported "great decline" in rape, America is in the midst of a hidden rape crisis.  Further, the techniques that conceal rape complaints deprioritize those cases so that police conduct little or no investigation. Consequently, police leave serial rapists, who constitute the overwhelming majority of rapists, free to attack more victims. Based upon the findings of this study, governments at all levels must revitalize efforts to combat the cloaked rise in sexual violence and the federal government must exercise greater oversight of the crime reporting process to ensure accuracy of the data provided.

March 6, 2014 in National and State Crime Data, Procedure and Proof at Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, March 02, 2014

Alabama struggling with enduring challenges as tough-on-crime history creates "box of dynamite"

The New York Times today has this notable and lengthy article about the criminal justice reform challenges facing Alabama headlined "Troubles at Women’s Prison Test Alabama." Here are excerpts:

For a female inmate, there are few places worse than the Julia Tutwiler Prison for Women. Corrections officers have raped, beaten and harassed women inside the aging prison here for at least 18 years, according to an unfolding Justice Department investigation.  More than a third of the employees have had sex with prisoners, which is sometimes the only currency for basics like toilet paper and tampons.

But Tutwiler, whose conditions are so bad that the federal government says they are most likely unconstitutional, is only one in a series of troubled prisons in a state system that has the second-highest number of inmates per capita in the nation.  Now, as Alabama faces federal intervention and as the Legislature is weighing its spending choices for the coming year, it remains an open question whether the recent reports on Tutwiler are enough to prompt reform.

“Yes, we need to rectify the crimes that happened at Tutwiler, but going forward it’s a bigger problem than just Tutwiler,” said State Senator Cam Ward, a Republican from Alabaster who is chairman of the Senate Judiciary Committee.  “We’re dealing with a box of dynamite.”

The solution, Mr. Ward and others say, is not to build more prisons but to change the sentencing guidelines that have filled the prisons well beyond capacity. Just over half the state’s prisoners are locked up for drug and property crimes, a rate for nonviolent offenses that is among the highest in the nation.  “No one wants to be soft on crime, but the way we’re doing this is just stupid,” Mr. Ward said.

Still, in many corners of Alabama, a state where political prominence is often tied to how much a candidate disparages criminals, the appetite for change remains minimal.  The Legislature is in the middle of its budget session, working over a document from Gov. Robert Bentley that includes $389 million for the state’s prisons. That is about $7 million less than last year’s budget.

The Department of Corrections argues that it needs $42 million more than it had last year. Alabama prisons are running at almost double capacity, and staffing is dangerously low, said Kim T. Thomas, the department’s commissioner.  He said he would use about $21 million of his request to give corrections officers a 10 percent raise and hire about 100 officers....

There is no ignoring the prison crisis.  Even Stacy George, a former corrections officer who is challenging Mr. Bentley in the June Republican primary by promising to be “the gun-toting governor,” this past week issued a plan for prison reform.  It calls for changing sentencing rules, rescinding the “three-strikes” law for repeat offenders, releasing the sick and elderly, and sending low-level drug offenders into treatment programs instead....

“It is just a culture of deprivation and abuse, not just at Tutwiler but in institutions across Alabama,” said Charlotte Morrison, a senior lawyer with the Equal Justice Initiative, a legal organization that represents indigent defendants and prisoners.  In 2012, the organization asked the federal government to step in after its own investigation into Tutwiler showed rampant sexual abuse....

“It’s a primitive, very backward prison system,” said Larry F. Wood, a clinical psychologist who was hired at Tutwiler in 2012. He quit after two months, appalled at the conditions and what he said was the administration’s lack of support for mental health services. “I’ve worked in prisons for most of 30 years, and I’ve never seen anything like this,” he said. “We need to back up and look at it with fresh eyes. The people who are running it don’t have the perspective to see what can change.”

March 2, 2014 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Tuesday, February 25, 2014

Curious racial politics omission in otherwise astute analysis of Prez Obama's criminal justice reform record

New York Times big-wig Bill Keller has this interesting final column headlined "Crime and Punishment and Obama," which discusses his transition to a notable new job in the context of a review of Prez Obama's criminal justice record.  Here are excerpts of a piece which should be read in full and which, as my post title suggests, does not discuss racial politics as much as I would expect: 

[W]hen the former community organizer took office, advocates of reform had high expectations.

In March I will give up the glorious platform of The Times to help launch something new: a nonprofit journalistic venture called The Marshall Project (after Thurgood Marshall, the great courtroom champion of civil rights) and devoted to the vast and urgent subject of our broken criminal justice system.  It seems fitting that my parting column should address the question of how this president has lived up to those high expectations so far....

In his first term Obama did not make this a signature issue; he rarely mentioned the subject....

In practice, the administration’s record has been more incremental than its rhetoric.

By the crudest metric, the population of our prisons, the Obama administration has been unimpressive.  The famously shocking numbers of Americans behind bars (the U.S., with 5 percent of the world’s people, incarcerates nearly a quarter of all prisoners on earth) have declined three years in a row.  However the overall downsizing is largely thanks to California and a handful of other states.  In overstuffed federal prisons, the population continues to grow, fed in no small part by Obama’s crackdown on immigration violators.

Obama is, we know, a cautious man, leery of getting ahead of public opinion and therefore sometimes far behind it.  And some reform advocates argue that it made sense for Obama to keep a low profile until a broad bipartisan consensus had gathered.  That time has come. Now that Obama-scorners like Senators Rand Paul and Mike Lee and even Ted Cruz are slicing off pieces of justice reform for their issue portfolios, now that red states like Texas, Georgia, South Carolina, Missouri and Kentucky have embraced alternatives to prison, criminal justice is one of those rare areas where there is common ground to be explored and tested.

The Obama presidency has almost three years to go, and there is reason to hope that he will feel less constrained, that the eight commutations were not just a pittance but, as he put it, “a first step,” that Holder’s mounting enthusiasm for saner sentencing is not just talk, but prelude, that the president will use his great pulpit to prick our conscience.

“This is something that matters to the president,” Holder assured me last week.  “This is, I think, going to be seen as a defining legacy for this administration.”  I’ll be watching, and hoping that Holder’s prediction is more than wishful thinking

This column covers a lot of modern criminal justice ground quite well, and gets me even more excited for Keller's forthcoming new journalistic venture called The Marshall Project. But I find curious and notable that this commentary does not directly address the racialized political dynamics that necessarily surrounds the first African-American Prez and AG if and whenever they prioritize criminal justice reform.

I have heard that Thurgood Marshall, when doing advocacy work with the NAACP before he became a judge, was disinclined to focus on criminal justice reform because he realized the politics of race made it hard enough for him to garner support for even law-abiding people of color. Consequently, while important federal elections in which Prez Obama is the key player still loom, I suspect the Prez and his team have made a very calculated decision to only move very slowly (and behind folks like Senator Rand Paul) on these matters.

And yet, just as Thurgood Marshall could and did make criminal justice reform a priority when he became a judge and Justice insulated from political pressure, so too am I expecting that Prez Obama will prioritize criminal justice issues once he in the last two lame-duck years of his time in the Oval Office. Two years is ample time for the Prez to make federal criminal justice reform a "defining legacy for this administration," and there is good reason to think political and social conditions for bold reform work will be in place come 2015 and 2016 (even with the inevitably racialized realities surrounding these issues).

February 25, 2014 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, February 20, 2014

"Institutionalizing Bias: The Death Penalty, Federal Drug Prosecutions, and Mechanisms of Disparate Punishment

The title of this post is the title of this notable new paper by Mona Lynch now available via SSRN. Here is the abstract:

The empirical study of capital punishment in the “modern” era has been largely decoupled from scholarship addressing the corollary late-20th century noncapital punitive developments, such as the rise of mass incarceration. Consequently, research that has examined the problem of racial disparities in the administration of the death penalty and research on the proportional growth of minorities in American correctional populations have advanced on parallel tracks, rarely intersecting.

In light of this symposium’s effort to strengthen the linkages between the death penalty and mass incarceration, this article examines two seemingly distinct cases of racially disparate criminal justice practices — the trial courts’ processing of contemporary capital cases and federal drug trafficking cases — to illustrate the institutionalized mechanisms that produce racial inequalities in both mass incarceration and capital punishment. I advance a meso-level, social-psychological theory on the production of institutional racism that also aims to integrate contested lines of thought about the mechanisms of bias and discrimination.

To accomplish these ends, I specifically focus on three problem areas in the structure and operation of contemporary American criminal justice: 1) the codification of inequality in how crimes and criminal culpability are defined and how sentencing rules are structured; 2) the distribution, by both stage and actor, of discretionary decision-making power; and 3) the mechanisms for relief from the harshest potential punishments.

February 20, 2014 in Death Penalty Reforms, Drug Offense Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, February 17, 2014

Noticing racial disproportion in who ends up serving time in private prisons

People-of-color-private-prisonsThis new Mother Jones piece, headlined "Why There's an Even Larger Racial Disparity in Private Prisons Than in Public Ones," highlights a new study concerning the racial composition of private prison populations.  Here is how the piece begins, with all the notable links (including a link to the discussed study) included: 

It's well known that people of color are vastly overrepresented in US prisons. African Americans and Latinos constitute 30 percent of the US population and 60 percent of its prisoners. But a new study by University of California-Berkeley researcher Christopher Petrella addresses a fact of equal concern. Once sentenced, people of color are more likely than their white counterparts to serve time in private prisons, which have higher levels of violence and recidivism (PDF) and provide less sufficient health care and educational programming than equivalent public facilities.

The study compares the percentage of inmates identifying as black or Hispanic in public prisons and private prisons in nine states. It finds that there are higher rates of people of color in private facilities than public facilities in all nine states studied, ranging from 3 percent in Arizona and Georgia to 13 percent in California and Oklahoma.  According to Petrella, this disparity casts doubt on cost-efficiency claims made by the private prison industry and demonstrates how ostensibly "colorblind" policies can have a very real effect on people of color.

The study points out an important link between inmate age and race. Not only do private prisons house high rates of people of color, they also house low rates of individuals over the age of 50 — a subset that is more likely to be white than the general prison population.  According to the study, "the states in which the private versus public racial disparities are the most pronounced also happen to be the states in which the private versus public age disparities are most salient." (California, Mississippi, and Tennessee did not report data on inmate age.)

Private prisons have consistently lower rates of older inmates because they often contractually exempt themselves from housing medically expensive—which often means older—individuals (see excerpts from such exemptions in California, Oklahoma, and Vermont), which helps them keep costs low and profits high. This is just another example of the growing private prison industry's prioritization of profit over rehabilitation, which activists say leads to inferior prison conditions and quotas requiring high levels of incarceration even as crime levels drop. The number of state and federal prisoners housed in private prisons grew by 37 percent from 2002 to 2009, reaching 8 percent of all inmates in 2010.

The high rate of incarceration among young people of color is partly due to the war on drugs, which introduced strict sentencing policies and mandatory minimums that have disproportionately affected non-white communities for the past 40 years. As a result, Bureau of Justice Statistics data shows that in 2009, only 33.2 percent of prisoners under 50 reported as white, as opposed to 44.2 percent of prisoners aged 50 and older.

So when private prisons avoid housing older inmates, they indirectly avoid housing white inmates as well. This may explain how private facilities end up with "a prisoner profile that is far younger and far 'darker'... than in select counterpart public facilities."

Private prisons claim to have more efficient practices, and thus lower operating costs, than public facilities. But the data suggest that private prisons don't save money through efficiency, but by cherry-picking healthy inmates.  According to a 2012 ACLU report, it costs $34,135 to house an "average" inmate and $68,270 to house an individual 50 or older. In Oklahoma, for example, the percentage of individuals over 50 in minimum and medium security public prisons is 3.3 times that of equivalent private facilities.

"Given the data, it's difficult for private prisons to make the claim that they can incarcerate individuals more efficiently than their public counterparts," Petrella tells Mother Jones.  "We need to be comparing apples to apples. If we're looking at different prisoner profiles, there is no basis to make the claim that private prisons are more efficient than publics."

February 17, 2014 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, February 06, 2014

"Profiting from Probation: America's 'Offender-Funded' Probation Industry"

The title of this post is the title of this notable new report from Human Rights Watch. Here is the start of the report's summary:

The United States Supreme Court has ruled that a person sentenced to probation cannot then be incarcerated simply for failing to pay a fine that they genuinely cannot afford. Yet many misdemeanor courts routinely jail probationers who say they cannot afford to pay what they owe — and they do so in reliance on the assurances of for-profit companies with a financial stake in every single one of those cases.

Every year, US courts sentence several hundred thousand people to probation and place them under the supervision of for-profit companies for months or years at a time.  They then require probationers to pay these companies for their services.  Many of these offenders are only guilty of minor traffic violations like speeding or driving without proof of insurance.  Others have shoplifted, been cited for public drunkenness, or committed other misdemeanor crimes.  Many of these offenses carry no real threat of jail time in and of themselves, yet each month, courts issue thousands of arrest warrants for offenders who fail to make adequate payments towards fines and probation company fees.

This report, based largely on more than 75 interviews conducted with people in the states of Alabama, Georgia, and Mississippi during the second half of 2013, describes patterns of abuse and financial hardship inflicted by the “offender-funded” model of privatized probation that prevails in well over 1,000 courts across the US.  It shows how some company probation officers behave like abusive debt collectors.  It explains how some courts and probation companies combine to jail offenders who fall behind on payments they cannot afford to make, in spite of clear legal protections meant to prohibit this.  It also argues that the fee structure of offender-funded probation is inherently discriminatory against poor offenders, and imposes the greatest financial burden on those who are least able to afford to pay.  In fact, the business of many private probation companies is built largely on the willingness of courts to discriminate against poor offenders who can only afford to pay their fines in installments over time.

The problems described in this report are not a consequence of probation privatization per se.  Rather, they arise because public officials allow probation companies to profit by extracting fees directly from probationers, and then fail to exercise the kind of oversight needed to protect probationers from abusive and extortionate practices.  All too often, offenders on private probation are threatened with jail for failing to pay probation fees they simply cannot afford, and some spend time behind bars.

February 6, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, February 05, 2014

Distaff side death penalty developments in Texas and Arizona

Women-death-rowI always find gender differences and disparities quite interesting in the administration of the modern death penalty, and thus these two news stories from two states captured my attention this morning.

From Texas via the AP here, "Woman Set to Be Executed in Texas for 1998 Killing," gets started this way:

A woman convicted of torturing and killing a mentally impaired man she lured to Texas with the promise of marriage was scheduled to be executed Wednesday in a rare case of a female death-row inmate.

If 59-year-old Suzanne Basso is lethally injected as scheduled, the New York native would be only the 14th woman executed in the U.S. since the Supreme Court allowed capital punishment to resume in 1976.  By comparison, almost 1,400 men have been put to death. Texas, the nation's busiest death-penalty state, has executed four women and 505 men.

Basso was sentenced to death for the 1998 slaying of 59-year-old Louis "Buddy" Musso, whose battered and lacerated body, washed with bleach and scoured with a wire brush, was found in a ditch outside Houston.  Prosecutors said Basso had made herself the beneficiary of Musso's insurance policies and took over his Social Security benefits after luring him from New Jersey.

The 5th U.S. Circuit Court of Appeals refused to halt the execution in a ruling Tuesday, meaning the U.S. Supreme Court is likely her last hope.  A state judge ruled last month that Basso had a history of fabricating stories about herself, seeking attention and manipulating psychological tests.

Leading up to her trial, Basso's court appearances were marked by claims of blindness and paralysis, and speech mimicking a little girl.  "It was challenging, but I saw her for who she was," said Colleen Barnett, the former Harris County assistant district attorney who prosecuted Basso.  "I was determined I was not going to let her get away with it."

Basso's attorney, Winston Cochran Jr., had asked the appeals court to overturn the lower court's finding that Basso was mentally competent to face execution.  He argued that Basso suffered from delusions and that the state law governing competency was unconstitutionally flawed.  Her lawyer said a degenerative disease left her paralyzed, but Basso, who uses a wheelchair, blamed her paralysis on a jail beating years ago.  At a competency hearing two months ago, she testified from a hospital bed wheeled into a Houston courtroom and talked about a snake smuggled into a prison hospital in an attempt to kill her. But she acknowledged lying about her background, including that she was a triplet, worked in the New York governor's office and had a relationship with Nelson Rockefeller.

From Arizona via The Republic here, "5 Arizona Women Face Rare Death Penalty" gets started this way:

Women make up less than 2 percent of death-row populations in the United States. There are two women on death row in Arizona, and no woman has been executed here since Eva Dugan was hanged in 1930. So, it’s a peculiar confluence of fate that five capital-murder cases against women are working through Arizona courts in these early months of 2014:

On Jan. 17, the Arizona Supreme Court upheld the death sentence for Shawna Forde, a self-styled anti-immigration vigilante convicted of killing two people southwest of Tucson in 2009.

On Jan. 23, a Maricopa County Superior Court judge refused to reconsider her decision to allow a former Phoenix police detective to invoke the Fifth Amendment in the Debra Milke case, putting Milke’s potential retrial on hold until prosecutors can file a special action appeal. Milke was freed after 23 years on death row when the 9th U.S. Circuit Court of Appeals granted her a new trial.

Wendi Andriano, who was sent to death row in 2004 for murdering her husband, is back in Maricopa County Superior Court for the next two weeks in a stage called post-conviction relief, arguing that she deserves a new trial because her defense attorneys did not represent her effectively.

Marissa DeVault’s trial starts Thursday on charges of killing her husband with a hammer in 2009. And Jodi Arias will go back to trial on March 17 to determine if she should be sentenced to death or to life in prison for the 2008 murder of her lover Travis Alexander.

Death-penalty cases are rarely clear-cut; less so when the defendants are women. Last spring, a first jury could not reach a decision as to whether to let Arias live or die.

In 2010, a Superior Court jury balked at sending Marjorie Orbin to death row, even though it found her guilty of killing her husband and cutting him in pieces. One chunk of his torso was found in a plastic tub in the desert in north Phoenix.

And in 2002, the Arizona Supreme Court threw out a death sentence for Doris Carlson, who paid two men to kill her mother-in-law in 1996, after determining that the murder was not committed in an especially cruel, heinous or depraved manner. That is one of the aggravating factors alleged in the DeVault case, and the Arias argument on the death penalty is based on the murder being considered especially cruel.

Capital cases against women also are often more complex because the crimes are often more passionate and more intimate.  “The death penalty is mostly about crimes against strangers. That really frightens people,” said Elizabeth Rapaport, a law professor at the University of New Mexico. Those crimes often include rapes and robberies, “and women just don’t do those kind of crimes,” Rapaport said.  Women who kill tend to kill spouses, lovers, children and family members. “Those cases are rarely capital cases,” she said.

February 5, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Tuesday, February 04, 2014

Is there a faith-based perspective on modern marijuana laws and reforms?

God potThe question in the title of this post is prompted by this interesting article from the Washington Post headlined "Faith leaders wrestle over growing support for marijuana." Here are excerpts:

Sunday’s Super Bowl was dubbed by some as the “pot bowl,” as the Denver Broncos and Seattle Seahawks hail from the two states where fans can soon get marijuana as easily as they can get pizza. As public opinion has shifted in support of legalized marijuana, religious leaders are wrestling over competing interests, including high prison rates and legislating morality.

According to a 2013 survey from the Public Religion Research Institute, 58 percent of white mainline Protestants and 54 percent of black Protestants favor legalizing the use of marijuana. On the other side, nearly seven-in-10 (69 percent) white evangelical Protestants oppose it.

Catholics appear to be the most divided Christian group, with 48 percent favoring legalization and 50 percent opposing it. Opinions on how states should handle those who possess or sell marijuana varies among Christian leaders.

Caught in the middle of the debate are pastors, theologians and other religious leaders, torn over how to uphold traditional understandings of sin and morality amid a rapidly changing tide of public opinion.

Mark DeMoss, a spokesman for several prominent evangelicals including Franklin Graham and Hobby Lobby founder Steve Green, admits he takes a view that might not be held by most Christian leaders. “When 50 percent of our prison beds are occupied by nonviolent offenders, we have prison overcrowding problems and violent offenders serving shortened sentences, I have a problem with incarceration for possession of marijuana,” he said. “None of that’s to say I favor free and rampant marijuana use. I don’t think it’s the most serious blight on America.”

Alcohol abuse, he said, is a much more serious issue. President Obama suggested something similar to The New Yorker recently when he said that marijuana is less dangerous than alcohol.

But don’t expect pastors to start preaching in line with DeMoss, who said he has not seen much comment from religious leaders on the issue. “If a pastor said some of what I said, there would be some who would feel the pastor was compromising on a moral issue,” he said. “No one wants to risk looking like they’re in favor of marijuana. I’m not in favor, but I think we should address how high of a priority it should be.”...

Laws on marijuana have disproportionately impacted minorities, said the Rev. Samuel Rodriguez, president of the National Hispanic Christian Leadership Conference. “There are community programs that can better engage young people than incarceration,” he said. “Many black and brown lives are destroyed because of incarceration.”...

Most Christians are still reluctant to favor legalization, Rodriguez said, since the effects of marijuana aren’t much different from getting drunk, which is a biblical no-no. “It has the ability of diluting reason, behavior, putting your guard down,” he said. “We are temples of God’s Holy Spirit, and it has the ability of hindering a clear thought process.”

Some who favor legalized marijuana liken the Christians who oppose it to be like the early 20th-century evangelicals and fundamentalists who supported a federal prohibition on alcohol. Part of a move in the Republican Party toward a loosening on marijuana legislation could be coming from people who also would sympathize with the Tea Party, said Russell Moore, head of the Southern Baptist Convention’s Ethics & Religious Liberty Commission.

“I definitely think there’s been a coalition of ‘leave us alone’ libertarians and Woodstock nation progressives on this issue of marijuana,” Moore said. “I do think there has been an effort to stigmatize those with concerns as Carrie Nations holding on to prohibition.”

Cross-posted at Marijuana Law, Policy and Reform

February 4, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (28) | TrackBack

Friday, January 31, 2014

"Bias in the Shadows of Criminal Law: The Problem of Implicit White Favoritism"

The title of this post is the title of this intriguing new article recently posted on SSRN and authored by Robert Smith, Justin Levinson and Zoe Robinson. Here is the abstract:

Commentators idealize a racially fair criminal justice system as one without racial animus. But unjustified racial disparities would persist even if racial animus disappeared overnight. In this Article, we introduce the concept of implicit white favoritism into criminal law and procedure scholarship, and explain why preferential treatment of white Americans helps drive the stark disparities that define America’s criminal justice system.

Scholarly efforts thus far have shone considerable light on how unconscious negative stereotyping of black Americans as hostile, violent, and prone to criminality occurs at critical points in the criminal justice process. We rotate the flashlight to reveal implicit favoritism, a rich and diverse set of automatic associations of positive stereotypes and attitudes with white Americans. White favoritism can operate in a range of powerful ways that can be distinguished from traditional race-focused examples: in the way, for example, white drivers are pulled over less often than unseen drivers or crimes against white victims are seen as more aggravating. Our account of implicit white favoritism both enriches existing accounts of how implicit racial bias corrupts the criminal justice system and provides explanations for disparities that implicit negative stereotyping explanations miss altogether.

January 31, 2014 in Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Sunday, January 26, 2014

GOP leaders now getting what Mitt missed: drug war reform may make good politics (as well as being principled) for small-government conservatives

Jindal and perryTwo years ago, just when Mitt Romney was finally sewing up the Republican nomination and could pivot his campaign toward wooing general election voters, I wrote this post suggesting it might be shrewd for Romney to consider trying to appeal to independents, young voters and minorities by talking up sentencing and drug war reforms. I followed up these ideas via this April 2012 Daily Beast commentary suggesting Romney should consider embracing "what Right On Crime calls the 'conservative case' for criminal-justice reform, and in doing so appeal to groups of independent and minority voters (especially young ones) while demonstrating a true commitment to some core conservative values about the evils of big government."

Two years later, it is (too) easy for me to assert that Mitt Romney might be preparing his own State of the Union address now had he taken my advice on this front.  Nevertheless, I am hardly the only one who came to see that Mitt missed the boat with younger and minority voters.  Romney himself commented that his campaign "fell short ... in being able to speak openly and effectively to minority populations," and this post-election post-mortem done by RNC Chair Reince Priebus highlighted that "young voters are increasingly rolling their eyes at what the [GOP] represents, and many minorities wrongly think that Republicans do not like them or want them in the country."

These 2012 issues all came to mind again when I read this interesting new post by Alex Kriet over at Marijuana Law, Policy and Reform.  The post is titled "More politicians backing marijuana reform," and it notes that "the past few days have seen a number of prominent Republican politicians express support for easing marijuana laws." Alex provides excerpts from recent comments by Governors Christie, Jindal and Perry and noted that they are "three Republicans rumored to be considering 2016 presidential bids [who are all] expressing support for easing drug laws."

Of course, even among leading conservative voices, these three prominent GOP Governors are coming a bit late to the sentencing and drug war reform table.  The Right on Crime movement has now been going strong for more than three years, with conservative stalwarts like Jeb Bush, Newt Gingrich, and Grover Norquist signing on to this statement of principles that "we must also be tough on criminal justice spending ... [to reconsider our] reliance on prisons ... [which can] have the unintended consequence of hardening nonviolent, low-risk offenders — making them a greater risk to the public than when they entered."  And, two of the most prominent elected Tea Partiers, Senators Mike Lee and Rand Paul, have been co-sponsors and prominent supports of bill to reform some of the harshest and most rigid aspects of the federal sentencing system. 

Regular readers know I have long asserted that anyone truly and deeply committed to oft-stressed conservative principles of constitutionally limited government, transparency, individual liberty, personal responsibility, and free enterprise should be troubled by the size and power of modern American criminal justice systems, especially at the federal level. But Alex's astute observation that many GOP leaders considered viable national candidates for 2016 are now talking up sentencing and drug war reforms suggests that Republican leaders are now getting what Mitt missed — GOP talk of serious criminal justice reform (especially at the federal level) may now be very smart politics as well as being in keeping with prominent conservative principles.

Some recent and older related posts:

January 26, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22) | TrackBack

Will Prez Obama mention sentencing reform in the State of the Union address?

Presidents traditionally use the annual State of the Union address to outline a planned legislative agenda and to articulate a perspective on national priorities. Consequently, in light of all the recent talk from Attorney General Holder and members of Congress about the need for federal sentencing reform, I will be extremely interested to see what Prez Obama might say (or not say) about sentencing reform when speaking to Congress this Tuesday.

This notable new commentary by Juliet Sorensen at The Atlantic, which is headlined "Why Obama Should Back Drug-Sentencing Reform in the State of the Union," highlights that I am not the only one now thinking about POTUS, SOTU and sentencing.  Here are excerpts:

In the last week of 1963, my father, Ted Sorensen, met with President Lyndon Johnson late into the night at his Texas ranch to decide what provisions of President John F. Kennedy’s unfinished agenda to include in the upcoming State of the Union address.  Last on the list was a provision for expanded federal jurisdiction over illegal drugs, which provided not only for federal criminal-law enforcement but also for expanded rehabilitation and treatment programs.

As my father recounted in his memoir, Johnson angrily brushed aside the suggestion. “Drugs? I don’t want to have anything to do with them. Just lock them up and throw away the key!”  The meeting ended, and my father deleted that portion of the speech, which famously announced the War on Poverty — but kept the drug provision in Johnson’s legislative program. This led to controlled-substance and drug-addiction reform that passed with bipartisan support in Congress. Despite Johnson’s dismissal of my father’s proposal of treatment and rehabilitation, he extolled those ideas when he signed the Narcotic Addict Rehabilitation Act into law in November 1966, describing it as a “pioneering measure” that recognizes that “treating addicts as criminals neither curtails addiction nor prevents crime.”

President Obama now has a golden opportunity in his own State of the Union to confront the U.S. government’s continued struggle to effectively legislate drugs.  In a January 8 statement, Obama endorsed the very same priorities articulated in LBJ’s War on Poverty and catalogued exactly 50 years ago in Johnson’s own State of the Union address.  This indicates that he will also focus on income inequality — 21st century lingo for entrenched poverty — in his speech on January 28.  While a renewed commitment to tackling persistent poverty is laudable, Obama should also seize the moment to further another, related legislative aim of the Kennedy and Johnson Administrations: reduced sentencing for drug-law violators who are nonviolent offenders....

Members of the bench and bar have come to recognize that mandatory minimums don’t always keep society safe or effectively punish every defendant.  A bill in the Senate, co-sponsored by Senators Dick Durbin, a Democrat, and Mike Lee, a Republican, would capitalize on shifting opinions in Congress and the general public.  The Smarter Sentencing Act (SSA) would reduce the mandatory-minimum penalties for many drug offenses and give federal judges more leeway to sentence nonviolent offenders with limited criminal histories below the high mandatory-minimum sentences.  It would also reduce disparities between crack- and powder-cocaine offenders by making the Fair Sentencing Act of 2010, which reduced the gap between the amount of crack and powder cocaine needed to trigger certain penalties, retroactive.  Support for the SSA from law enforcement, victims’ organizations, prosecutors, and judges has poured in, including a letter signed by more than 100 former judges and prosecutors, including me....

The Obama Administration has indicated it supports mandatory-minimum-sentencing reform.  Tellingly, the president last month commuted the sentences of eight nonviolent drug offenders who would most likely have received significantly shorter terms if they had been sentenced under current drug laws, sentencing rules, and charging policies.  Attorney General Eric Holder stated last August that legislation such as the SSA will “ultimately save our country billions of dollars while keeping us safe.”  In an interview published in this week’s issue of The New Yorker, Obama acknowledged the disparate impact of drug laws on minorities, noting that “African-American kids and Latino kids are more likely to be poor and less likely to have the resources and the support” — in their families, in their schools, and in their communities — to avoid lengthy prison sentences for marijuana crimes, even as he acknowledged the “profound” social costs of drug trafficking.

A declaration of support for the SSA in his State of the Union Address — broadcast live and heard not only by Congress but approximately 50 million people around the world — would go far to create momentum and support for the bill and its goal of curbing unnecessarily harsh sentencing. In so doing, the president would put America back on the road paved by Kennedy and Johnson. My father, and the presidents he served, would be pleased.

January 26, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, January 25, 2014

"Murder, Minority Victims, and Mercy"

The title of this post is the title of this interesting looking paper that just appears on SSRN and is authored by Aya Gruber.  Here is the abstract:

Should the jury have acquitted George Zimmerman of murder? Should enraged husbands receive a pass for killing their cheating wives? Should the law treat a homosexual advance as adequate provocation for killing? Criminal law scholars generally answer these questions with a resounding “no.”  Theorists argue that criminal laws should not reflect bigoted perceptions of African Americans, women, and gays by permitting judges and jurors to treat those who kill racial and gender minorities with undue mercy.  According to this view, murder defenses like provocation should be restricted to ensure that those who kill minority victims receive the harshest sanctions available.  Equality is thus achieved by ratcheting up punishment.

There is a similar bias in assessment of the death penalty, where those who kill racial minorities are treated more leniently than those who kill whites and are often spared execution.  But the typical liberal response here is to call for abolition rather than more frequent executions.  Equality is thus achieved by ratcheting down punishment.

This article asserts that the divergence between the accepted scholarly positions on the provocation defense and capital punishment can be explained by provocation critics’ choice to concentrate on spectacular individual instances of leniency toward those who kill gender minorities and death penalty theorists’ tendency to view the entire institution of capital punishment as racist and retrograde.  The article then provides the institutional sketch of noncapital murder law currently missing from provocation analysis by discussing sentencing practices, the demographic composition of murder defendants, and the provocation defense’s potential role as a safety valve.  It concludes that inserting institutional analysis into the critical assessment of provocation might undermine the prevailing scholarly dogma supporting pro-prosecution reform.

January 25, 2014 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4) | TrackBack

Tuesday, January 21, 2014

Florida prisons struggling with extra costs of a hearty appetite for religion

This new New York Times article, headlined "You Don’t Have to Be Jewish to Love a Kosher," highlights the extra costs of respecting religious freedoms for the incarcerated. Here are excerpts:

Florida is now under a court order to begin serving kosher food to eligible inmates, a routine and court-tested practice in most states.  But state prison officials expressed alarm recently over the surge in prisoners, many of them gentiles, who have stated an interest in going kosher.

Their concern: The cost of religious meals is four times as much as the standard fare, said Michael D. Crews, who is expected to be confirmed as secretary of the Department of Corrections in March.  “The last number I saw Monday was 4,417,” Mr. Crews said of inmate requests at his recent confirmation hearing before a State Senate committee. “Once they start having the meals, we could see the number balloon.”...

Kosher food in prisons has long served as fodder for lawsuits around the country, with most courts coming down firmly on the side of inmates.  As long as inmates say they hold a sincere belief in Judaism — a deeply forgiving standard — they are entitled to kosher meals, even if takes a little chutzpah to make the request.

“Florida is an outlier,” said Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty, which has represented inmates around the country.  “It’s a holdout. I don’t know why it’s being a holdout.  It is strange that Florida, of all places, is placing a special burden on Jewish inmates.  It’s just stubbornness.”

In Florida’s prison system. which faces a $58 million deficit, money is the easy answer for the battle against kosher food.  The cost of three kosher meals in Florida is $7 a day, a big jump from the $1.54 for standard meals, Mr. Crews said.  In New York State, where 1,500 inmates out of about 56,000 keep kosher, the cost of a kosher meal is $5 a person.  In California, where some prisons have kosher kitchens, the price tag is $8, and the meals are served to 0.7 percent of about 120,000 inmates.

Last April, facing an inmate lawsuit, Florida began a pilot program for the religious diet at Union Correctional Facility near Jacksonville. Initially, some 250 inmates signed up, Mr. Crews said. But once other inmates spied the individually boxed lunches, 863 expressed a sudden interest in keeping kosher....

But the question of who gets a kosher meal is tricky.  In all, less than 1.5 percent of the country’s 1.9 million inmates are Jewish, according to the Aleph Institute, a social services organization, and many do not even request kosher meals.  “Who is a Jew?” Mr. Rassbach said. “People disagree about who is a Jew.”

The courts steer clear of that perilous debate.  Instead, inmates need only say they have a “sincerely held” religious belief.  Attempts by prison officials and rabbis to quiz prisoners about the Torah and the rules of keeping kosher were ruled not kosher. Tracing maternal lineage was similarly viewed unfavorably....  Some states, like New York, do nothing to try to discern who is feigning Jewishness.  In California, inmates talk with a rabbi who will gauge, very generally, a prisoner’s actual interest.

But some Jewish groups in Florida are pushing for greater control, which may pose a difficult legal hurdle.  “There should be away to ascertain who really does require a kosher meal for their religious belief,” said Rabbi Menachem M. Katz, director of prison and military outreach for the Aleph Institute in South Florida, “and who is just gaming the system.”

January 21, 2014 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (9) | TrackBack

Monday, January 20, 2014

Fittingly for MLK day, Prez Obama laments class and race disparities from pot prohibition

I MLK am intrigued and pleased to see that the New Yorker has just released this very lengthy article profiling President Obama that has a very interesting small section with quotes from the President concerning modern marijuana policies and reform. Though I expect to cover various aspects of what Prez Obama said a lot more over at Marijuana Law, Policy and Reform in the week ahead, these comments should be of special interest to sentencing fans: 

What clearly does trouble him is the radically disproportionate arrests and incarcerations for marijuana among minorities.  “Middle-class kids don’t get locked up for smoking pot, and poor kids do,” he said.  “And African-American kids and Latino kids are more likely to be poor and less likely to have the resources and the support to avoid unduly harsh penalties.”  But, he said, “we should not be locking up kids or individual users for long stretches of jail time when some of the folks who are writing those laws have probably done the same thing.”  Accordingly, he said of the legalization of marijuana in Colorado and Washington that “it’s important for it to go forward because it’s important for society not to have a situation in which a large portion of people have at one time or another broken the law and only a select few get punished.”

As is his habit, he nimbly argued the other side. “Having said all that, those who argue that legalizing marijuana is a panacea and it solves all these social problems I think are probably overstating the case.  There is a lot of hair on that policy. And the experiment that’s going to be taking place in Colorado and Washington is going to be, I think, a challenge.”

As the title of this post highlights, I think it is valuable and fitting that news of the President of the United States making these points hits the papers on the weekend we honor the work and legacy of Dr. Martin Luther King.  As students of history know, Dr. King was concerned about economic inequallity as well as racial inequality, and I think the stories of modern pot prohiibition reflect both.  More broadly, as I highlight in a new post over at my other blog, titled MLK marijuana mash-up: "I Have A Dream..." we are free at last from pot prohibition, I think MLK's most famous exhortations about freedom and equality are useful to consider at this unique moment of marijuana reform debates.

Some related recent posts (mostly from MLPR):

January 20, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (29) | TrackBack

Saturday, January 18, 2014

After new revelations, should every defendant ever sentenced by Judge Cebull seek resentencing?

The question in the title of this post is prompted by this new AP report headlined " "Federal judge sent hundreds of bigoted emails," which is a summary of this lengthy report released on Friday by the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States.  Here are the basics:

A former Montana judge who was investigated for forwarding a racist email involving President Barack Obama sent hundreds of other inappropriate messages from his federal email account, according to the findings of a judicial review panel released Friday.

Former U.S. District Judge Richard Cebull sent emails to personal and professional contacts that showed disdain for blacks, Indians, Hispanics, women, certain religious faiths, liberal political leaders, and some emails contained inappropriate jokes about sexual orientation, the Judicial Council of the 9th U.S. Circuit Court of Appeals found.

Many of the emails also related to pending issues that could have come before Cebull's court, such as immigration, gun control, civil rights, health care and environmental issues, the council found in its March 15, 2013, order. The investigation looked at four years of Cebull's personal correspondence sent from his official email account. Investigators also reviewed his past cases and interviewed witnesses.

The investigation found no evidence of bias in Cebull's rulings or sentences, and the witnesses generally regarded him as a "good and honest trial lawyer, and an esteemed trial judge," according to the report.

The 9th Circuit council issued Cebull a public reprimand; ordered no new cases be assigned to him for 180 days; ordered him to complete training on judicial ethics, racial awareness and elimination of bias; and ordered him to issue a second public apology that would acknowledge "the breadth of his behavior." The panel said impeachment was not warranted because Cebull did not violate federal or state law, though two of the judges on the council said they would have asked for his resignation.

But none of the sanctions took effect and the findings did not become public until Friday on the order of a national judicial review panel. Cebull announced his resignation March 29, two weeks after the judicial council issued its order. After Cebull retired May 3, the 9th Circuit council vacated its previous order and wrote a new one calling the complaints against Cebull "moot" because of his retirement....

Cebull himself and 10 others requested the misconduct investigation after The Great Falls Tribune reported Cebull forwarded an email in February 2012 that included a joke about bestiality and Obama's mother. Cebull apologized to Obama after the contents of the email were published. He told the 9th Circuit panel that his "public shaming has been a life-altering experience" and that he was "acutely aware that each day in my court is the most important day in someone's life."

Cebull was nominated by former President George W. Bush and received his commission in 2001. He served as chief judge of the District of Montana from 2008 until 2013.

I am quite surprised to hear that Judge Cebull sent so many inappropriate e-mail from his chambers, though I am not at all surprised that an investigation by other judges reached the (self-serving) conclusion that there was "no evidence of bias in Cebull's rulings or sentences."  In my view, any defendant (especially any female or minority defendant) still sitting in federal prison unhappy with a past sentencing decision made by Judge Cebull could and should use this new report to at least request a focused review of any of his specific sentencing outcomes.

Prior related posts (from 2012) concerning Cebull controversy:

January 18, 2014 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (15) | TrackBack

Friday, December 27, 2013

"White man charged with 'knockout game' hate crime. Racial hypocrisy?"

Folks on this blog (myself included) often discuss and debate the impact of racial issues, federalism and prosecutorial discretion on the operation of our nation's criminal justice systems.  Consequently, this new Christian Science Monitor article with the same headline of this post just caught my eye as blogworthy. Here is the article's subheading: "The Obama administration's decision to charge a white man with a hate crime for allegedly punching a black man as part of the knockout game has led to criticism that it is applying the law unevenly." And here is more from the piece:

The US Department of Justice on Thursday stepped into the cultural fray about the so-called “knockout game” when it brought federal hate crime charges against a white Texas man for assaulting an unsuspecting black man.

The decision shines a brighter spotlight on the knockout game, in which an assailant tries to knock out a bystander with a single punch. A spate of incidents have gathered national attention in recent months, though it is unclear whether the game has become more popular or whether the Internet has simply allowed for isolated incidents to be broadcast more widely.

The majority of the reported incidents, however, have involved black men targeting white victims – and none triggered federal involvement. The fact that the Justice Department has elected to step in now, when a black man was the victim, has led to criticism among conservative pundits that the Obama administration is applying the hate-crime statute unevenly....

Conrad Barrett was arrested Thursday and charged under federal hate crimes law, which defines a hate crime as “motivated by enmity or animus against a protected class.” (The Federal Bureau of Investigation also lists anti-white crimes as hate crimes.)...

Federal prosecutors say Mr. Barrett planned the Nov. 24 attack, which he filmed with his cellphone. He approached “G.C.”, an elderly black man, and said, “How’s it going, man?” then punched him so hard that G.C.'s jaw was broken in two places and he lost three teeth. Barrett then allegedly cried “knockout!” and ran.

He was caught after he told the tale at a bar, where an off-duty cop was present. Federal prosecutors argue that the attack was motivated by racial animus because police uncovered videos where Barrett allegedly used racial epithets and at one point said that black people “haven’t fully experienced the blessing of evolution.” In another video from the day of the assault, Barrett says, “If I were to hit a black person, would this be nationally televised?”

A single hate crime charge carries a maximum of 10 years in federal prison and a $250,000 fine.

Some conservative bloggers see racial hypocrisy in the charges. “This case shows how warped law enforcement has gotten as a result of hate crime legislation,” writes Rick Moran on the American Thinker blog. “No matter who is in charge, the law will always be selectively enforced. It makes a mockery of the notion of equal justice under the law.”

Concern about the game has percolated within the black community. This fall, several black leaders, including Philadelphia Mayor Michael Nutter, spoke out about the knockout game and warned black parents, in particular, about the consequences for dangerous behavior by their kids.

Hate crime charges have been brought this year against one black suspect accused of playing the knockout game, but they were state charges brought by New York in the case of a knocked-out Jewish man.

For his part, Jack Levin, a criminologist at Northeastern University in Boston, is not convinced that knockout game attacks are growing.  He argues in an upcoming journal article that racially fueled knockout attacks are in the news is because they’ve actually become rarer than in the past, so they are more notable.  The 1990s, he says, had far more reports of so-called “thrill hate crimes” -- think white teenagers beating up homeless men....

According to FBI hate crime statistics, 22 percent of the 3,297 reported racially motivated hate crimes in 2012 were anti-white, while 66 percent were anti-black. (Others included anti-Pacific Islander and anti-Alaskan native attacks.) The Justice Department insisted Thursday that it does not discriminate in how it makes decisions on hate crime charges. “Suspected crimes of this nature will simply not be tolerated,” said US Attorney Kenneth Magidson of the Southern District of Texas. “Evidence of hate crimes will be vigorously investigated and prosecuted with the assistance of all our partners to the fullest extent of the law.”

Especially in light of the fact that "thrill" beatings are likely always to be localized assaults and that such crimes may actually be declining even as media reports about them increased, I am inclined to criticize the feds for getting involved at all before I will express concerns about racial disparities in how local federal prosecutors decide to bring hate-crime federal charges. More broadly, to the extent that a lot of federal involvement in state matters has often been justified by a concerns that southern courts have in the past been much more concerned about white victim than black ones, the fact that the feds have gotten involved in a case like this in Texas (perhaps after state authorities were slow to respond) involving a younger hoodlum going after elderly man, makes me hesitant to throw around labels like racial hypocrisy until I had more detailed information about why prosecutors moved forward with federal charges in this case but not in others.

That all said, this case and the reaction thereto provides further support for my belief that everyone tends to favor a potent federal criminal justice system and unregulated federal prosecutorial discretion unless and until the feds start using their broad powers in ways that a particular group dislikes.

December 27, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack

Saturday, December 21, 2013

"If our prisons were a country, what would Incarceration Nation look like?"

The title of this post is the headline of this fascinating commentary by lawprof Rosa Brooks, which merits a read in full.  Here are just a few highlights from a very interesting piece:

You already know that the United States locks up a higher percentage of its population than any other country in the world.  If you look at local, state and federal prison and jail populations, the United States currently incarcerates more than 2.4 million people, a figure that constitutes roughly 25 percent of the total incarcerated population of the entire world.

A population of 2.4 million is a lot of people -- enough, in fact, to fill up a good-sized country. In the past, the British Empire decided to convert a good chunk of its prison population into a country, sending some 165,000 convicts off to Australia.  This isn't an option for the United States, but it suggests an interesting thought experiment: If the incarcerated population of the United States constituted a nation-state, what kind of country would it be?

Here's a profile of Incarceration Nation:

Population size: As a country -- as opposed to a prison system -- Incarceration Nation is on the small side. Nonetheless, a population of 2.4 million is perfectly respectable: Incarceration Nation has a larger population than about 50 other countries, including Namibia, Qatar, Gambia, Slovenia, Bahrain and Iceland....

Population Density:  No matter how you look at it, Incarceration Nation is a crowded place. If we assume a land area of 2,250 square miles, it has a population density of roughly 1,067 people per square mile, a little higher than that of India.  Of course, the residents of Incarceration Nation don't have access to the full land-area constituting their nation: most of them spend their days in small cells, often sharing cells built for one or two prisoners with two or three times that many inmates....

Demographics:

A nation of immigrants: Like many of the smaller Gulf States, Incarceration Nation relies almost entirely on immigration to maintain its population. You might even say that Incarceration Nation is a nation of displaced persons: most of its residents were born far away from Incarceration Nation, which has a nasty habit of involuntarily transporting people hundreds and sometimes thousands of miles away from their home communities, making it extraordinarily difficult for residents to maintain ties with their families. In New York, for instance, one study found that "70 percent of incarcerated individuals are in prisons over 100 miles from their homes" -- often in "isolated rural areas that are inaccessible by direct bus or train routes."...

Gender balance: International attention to gender imbalances has tended to focus on China, India and other states, but Incarceration Nation has the most skewed gender ratio of any country on Earth: men outnumber women by a ratio of about 12 to 1.

Racial and ethnic makeup: If Incarceration Nation were located in a geographical region matching its racial and ethnic makeup, it would probably be somewhere in the Southern Hemisphere, perhaps near Brazil.  Roughly 40 percent of the incarcerated population is of African descent, another 20 percent is of Hispanic descent, and the remaining 40 percent are Caucasian or mixed....

Health: Incarceration Nation doesn't do so well here. One recent study found that the incarcerated are "more likely to be afflicted with infectious disease and other illnesses associated with stress."...

Per Capita Spending: Judged by per capita government spending, Incarceration Nation is a rich country: its government spends an average of about $31,000 per year on each incarcerated citizen. (State by state, costs vary. Kentucky and Indiana spend less than $15,000 on each inmate per year, while in New York State, the per capita cost per inmate is more than $60,000 a year. In New York City, per capita costs for jail inmates reach an astronomical $168,000 per year.) Internationally, only little Luxembourg spends as much on its citizens as Incarceration Nation; among the generally wealthy states of the Organization for Economic Cooperation and Development, average per capita spending is under $15,000, and Sweden, France, Germany, Canada, the United States and the United Kingdom all spend under $20,000 per year on each citizen.

Gross Domestic Product: Incarceration Nation doesn't have a GDP, per se, but that doesn't mean it doesn't turn a profit -- sometimes, and for some people. For American taxpayers, aid to Incarceration Nation is pretty expensive: looking at just 40 U.S. states, the Vera Institute of Justice found that the cost to taxpayers of incarceration in these states was $39 billion. Overall, federal and state governments spend an estimated $74 billion on prisons each year. (This doesn't count spending on state and local jails.) How much is $74 billion? It's higher than the GDP of more than half the countries in the world, including Lebanon, Paraguay, Nepal and Lithuania.

Some people make a lot of money from Incarceration Nation. Incarceration Nation employs about 800,000 people as prison guards, administrators and the like -- almost as many people as are employed in the entire U.S. automobile industry -- and in some rural areas, prisons are the main employers. But the real money goes to the operators of private prisons and the companies that make use of prison labor.

December 21, 2013 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (32) | TrackBack

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 (18) | 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:

November 24, 2013 in Criminal Sentences Alternatives, Drug Offense Sentencing, New crack statute and the FSA's impact, Race, Class, and Gender | Permalink | Comments (11) | TrackBack

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.

November 21, 2013 in Booker in district courts, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

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.

The two-page majority opinion in this case says nothing of substance, but the 30-page dissent has a whole lot to say.

November 21, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

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:

November 17, 2013 in Mandatory minimum sentencing statutes, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

"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.

November 17, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

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

November 16, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Offender Characteristics, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Wednesday, November 13, 2013

New ACLU report spotlights thousands of nonviolent prisoners serving LWOP terms

Lwop-marquee-230x230-v01The 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 (19) | 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 case

As 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.

November 1, 2013 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9) | TrackBack

Wednesday, October 23, 2013

Federal sentencing reform: an unlikely Senatorial love story and a Booker double-dose?

O-PAUL-BOOKER-facebookThe 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:

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 arguments

As 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:

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

October 8, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Saturday, October 05, 2013

Noting the shame of prison rape in incarceration nation

David 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.

October 5, 2013 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (6) | TrackBack

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.)

October 3, 2013 in Mandatory minimum sentencing statutes, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

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.

October 1, 2013 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

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.

September 19, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

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.

September 19, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

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.

September 3, 2013 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1) | TrackBack

Sunday, August 25, 2013

"Fifty years ago this month, a young man and an older man sat down and began to plot the end of the death penalty in America."

The title of this post is the first sentence of this interesting piece by Jesse Wegman appearing in the Review section of today's New York Times under the headline "The Death Memo."  Here are more excerpts from what follows:

It was an audacious idea at the time — capital punishment was right there in the Constitution, the Supreme Court had no problem with it, and public opinion remained strongly in its favor.

But to many people, the summer of 1963 represented a new world, one alive with dreams of fairness and equality. That August, across the Mall from the Lincoln Memorial, Supreme Court Justice Arthur Goldberg, a strong opponent of capital punishment, charged his 24-year-old law clerk, Alan Dershowitz, to develop the most compelling legal argument that the death penalty violated the Constitution.

“He said, ‘Don’t find me mass murderers, don’t find me serial killers,’” Mr. Dershowitz, the well-known defense lawyer, recalled recently. Mr. Dershowitz’s resulting memo, described in Evan Mandery’s excellent new book, “A Wild Justice: The Death and Resurrection of Capital Punishment in America,” drew particular attention to racial disparities in the death penalty’s application. Justice Goldberg was impressed, and he worked the memo into a dissent. But so as not to scare off his colleagues, he removed almost every reference to race.

Fifty years later, the death penalty lives on. The Supreme Court suspended it in 1972, holding that the arbitrariness of its application constituted cruel and unusual punishment. In 1976 the court reinstated it.  More than 1,300 people have been executed since, but the rate has fallen over the last decade.

Some justices have categorically opposed capital punishment, like William Brennan Jr. and Thurgood Marshall.  Others have maintained it is indisputably constitutional, like Antonin Scalia and Clarence Thomas.  But as Mr. Mandery notes, three justices who voted to reinstate it later changed their minds....  These justices, more than those with unwavering positions, may serve as a metaphor for tracking our “evolving standards of decency.”

Arthur Goldberg died in 1990. Mr. Dershowitz, whom he liked to call his clerk for life, remembered one of their final conversations. “I said to him, ‘You’re Moses and you haven’t been given the right to cross over to Israel. You’re going to die on Mount Nebo.’ But I promised him in my lifetime we’d see the end of what he did.”

So how will it end? “It’s going to happen the way things always happen at the court,” Mr. Dershowitz said. “The court will appear to be leading, but it will be following.”

August 25, 2013 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack

Saturday, August 24, 2013

AG Holder's speech at "Dream March" stresses fairness and "equal justice" (... as federal crack prisoners keep waiting)

Gty_martin_luther_king_obama_tk_130116_wgI just got an e-mail providing this link to the text of Attorney General Eric Holder's prepared remarks which he delivered today in Washington DC as part of the "National Action to Realize the Dream March." Here are some excerpts that caught my eye (with my emphasis added):

It is an honor to be here — among so many friends, distinguished civil rights leaders, Members of Congress, and fellow citizens who have fought, rallied, and organized — from the streets of this nation, to the halls of our Capitol — to advance the cause of justice.

Fifty years ago, Dr. King shared his dream with the world and described his vision for a society that offered, and delivered, the promise of equal justice under law.   He assured his fellow citizens that this goal was within reach — so long as they kept faith with one another, and maintained the courage and commitment to work toward it.  And he urged them to do just that.  By calling for no more — and no less — than equal justice.  By standing up for the civil rights to which everyone is entitled.  And by speaking out — in the face of hatred and violence, in defiance of those who sought to turn them back with fire hoses, bullets, and bombs — for the dignity of a promise kept; the honor of a right redeemed; and the pursuit of a sacred truth that’s been woven through our history since this country’s earliest days: that all are created equal....

But today's observance is about far more than reflecting on our past.  Today’s March is also about committing to shape the future we will share — a future that preserves the progress, and builds on the achievements, that have led us to this moment.  Today, we look to the work that remains unfinished, and make note of our nation's shortcomings, not because we wish to dwell on imperfection — but because, as those who came before us, we love this great country.  We want this nation to be all that it was designed to be — and all that it can become. We recognize that we are forever bound to one another and that we stand united by the work that lies ahead — and by the journey that still stretches before us.

This morning, we affirm that this struggle must, and will, go on in the cause of our nation’s quest for justice — until every eligible American has the chance to exercise his or her right to vote, unencumbered by discriminatory or unneeded procedures, rules, or practices.  It must go on until our criminal justice system can ensure that all are treated equally and fairly in the eyes of the law.  And it must go on until every action we take reflects our values and that which is best about us.  It must go on until those now living, and generations yet to be born, can be assured the rights and opportunities that have been too long denied to too many.

The America envisioned at this site 50 years ago — the “beloved community” — has not yet been realized.  But half a century after the March, and 150 years after Emancipation, it is finally within our grasp.  Together — through determined effort; through a willingness to confront corrosive forces tied to special interests rather than the common good; and through devotion to our founding documents — I know that, in the 21st century, we will see an America that is more perfect and more fair....

To AG Holder's credit, back in April 2009, his Justice Department went to Capitol Hill to tell Congress that the current Administration then believed (and still believes?) that a commitment to fairness and equal justice required completely eliminating the differential treatment of crack and powder cocaine in federal sentencing law.  But since that time, the Obama Administration has suggested it is content with Congress's decision to merely reduce — from 100-1 to 18-1 — the differential treatment of drug quantities for crack and powder.  Moreover, this Administration has made no real effort to help those sentenced before the passage of the Fair Sentencing Act to get any fair or equal benefits from the new law's reduced crack sentencing terms.

Indeed, from its initial advocacy to limit "pipeline" cases from getting the benefit of the FSA's reduced mandatory minimums, to its continued disinclination to seek to help folks still serving excessively long sentences based on the pre-FSA 100-1 crack laws, the Holder Justice Department's actions suggest they do not really think a commitment to fairness and equal justice calls for doing much of anything to help crack offenders sentenced before August 2013. 

Please understand that I know full well the range of forcefully legal arguments and political considerations which can be made to justify preventing thousands of federal prisoners still serving excessively long crack sentences from getting any benefits from the FSA.  But I also know full well that if Dr. King were alive today, he surely would be advocating forcefully for this Administration to live up to its commitment to fairness and equal justice and to do something to help those federal prisoners still languishing in prison based on the unfair and unequal sentences required by the pre-FSA crack laws.

Indeed, with current federal prisoners in mind, I think we still are awaiting the day that Dr. King dreamed of and spoke about when he ended his speech in this way:

[I dream of] the day when all of God's children will be able to sing with a new meaning, "My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring."

And if America is to be a great nation this must become true.  So let freedom ring from the prodigious hilltops of New Hampshire.  Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!

Let freedom ring from the snowcapped Rockies of Colorado!  Let freedom ring from the curvaceous slopes of California!

But not only that; let freedom ring from Stone Mountain of Georgia!  Let freedom ring from Lookout Mountain of Tennessee!

Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.

And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! free at last! thank God Almighty, we are free at last!"

I suppose we all need to just keep dreaming, while still stressing the "fierce urgency of now."

August 24, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (32) | TrackBack

Tuesday, August 20, 2013

Revised Post (revised yet again) upon request

Regular readers know all about the controversy and pending en-banc litigation engendered by a decision rendered three months ago by a split Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here).....

ADDITIONAL ORIGINAL MATERIALS IN REST OF THIS POST REMOVED upon reasonable requests by lots of reasonable folks for reasonable reasons, in my judgment....

August 20, 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 | Permalink | Comments (5) | TrackBack

Monday, August 19, 2013

"Crack Cocaine, Congressional Inaction, and Equal Protection"

The title of this post is the title of this new paper on SSRN authored by Paul Larkin Jr. and which appears to be critical of the Sixth Circuit's (now vacated) panel decision in US v. Blewett. Here is the abstract:

For decades, scholars and courts have debated whether the Anti-Drug Abuse Act of 1986 discriminates against African Americans by imposing far stiffer punishments for trafficking in crack cocaine than in its powdered form.  The academy has generally concluded that the federal crack cocaine sentencing laws are racially discriminatory, while the federal courts have almost uniformly rejected the same argument. Three years ago Congress, via the Fair Sentencing Act of 2010, addressed the issue by reducing, without eliminating, the sentencing disparity. Recently, the U.S. Court of Appeals for the Sixth Circuit in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013), concluded that the 2010 statute would be unconstitutional if it were not applied retroactively. The Blewett case forces this debate back into the political arena.

The Sixth Circuit misapplied equal protection law.  Rather than ask whether Congress refused to apply the Fair Sentencing Act retroactively for a discriminatory purpose, the court concluded that Congress’s decision to adopt a prospective-only statute was tantamount to readoption of Jim Crow.  Settled law, however, requires proof of discriminatory intent.  Moreover, Congress’s refusal to adopt retroactive legislation cannot violate the Due Process Clause.  The clause applies only to positive law, so Congress cannot violate the clause by not enacting legislation.  Finally, the Sixth Circuit failed to consider the effect of strict enforcement of the drug laws on the innocent residents of communities where crack trafficking occurs.  It may be unwise to continue to imprison crack offenders for the full length of their prison terms imposed under the strict provisions of a now-amended law, but a mistaken decision is not invariably an unconstitutional one.

Related posts on Blewett:

August 19, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack