Thursday, February 13, 2014

Feds to appeal probation sentence given to tax-dodging Beanie Babies billionaire

As reported in this new AP article, the "U.S. attorney's office in Chicago said Thursday that it's appealing a sentence that included no prison time for the billionaire creator of Beanie Babies for hiding at least $25 million from U.S. tax authorities in Swiss bank accounts."  Here is more:

At H. Ty Warner's sentencing last month, Judge Charles Kocoras heaped praise on the toymaker for his charitable giving, declaring society was better served by letting him go free and giving him two years' probation instead of sending him to prison. Warner had faced up to five years in prison.

Warner, 69, of Oak Brook, Ill., was one of the highest profile figures snared in a long-running investigation of Americans concealing funds in Swiss bank accounts. Others convicted of squirreling away less money in Switzerland than Warner have done prison time. Warner, who grew up poor, created the animal-shaped Beanie Babies in the mid-'90s, triggering a craze that made Warner spectacularly rich. Forbes recently estimated his net worth at $2.6 billion.

A one-page notice of appeal signed by U.S. Attorney Zachary Fardon was filed with the U.S. 7th Circuit Court of Appeals, and a full brief will be submitted later. Justice officials in Washington still must OK the appeal, but that's usually considered a formality.

At a Jan. 14 sentencing hearing, Kocoras spent most of his 20-minute explanation of the sentence expressing admiration for Warner. He also said the businessman had already paid a price in "public humiliation." In addition to probation, Kocoras ordered Warner to do 500 hours of community service at Chicago high schools. Earlier, Warner agreed to pay $27 million in back taxes and interest, and a civil penalty of more than $53 million....

During sentencing, assistant government attorney Michelle Petersen urged Kocoras to put Warner behind bars for at least a year.  "(Without prison time), tax evasion becomes little more than a bad investment," she told him.  "The perception cannot be that a wealthy felon can just write a check and not face further punishment."

This should be a VERY interesting sentencing appeal to watch in the months ahead, and I am already super stoked to read the coming Seventh Circuit briefs from the parties concerning what will surely be differing views on what federal sentencing law demands in a case of this nature.

Prior related post:

February 13, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Trio of former governors to get behind initiative to reform California's dysfunctional death penalty

As reported in this Los Angeles Times article, "three former California governors are set to announce their endorsement Thursday of a proposed initiative sponsors say would end lengthy death penalty appeals and speed up executions." Here is more:

Former governors George Deukmejian, Pete Wilson and Gray Davis will announce at a news conference the launch of an initiative drive for signatures to qualify the proposed constitutional amendment for the November ballot.

The measure, if qualified, would ignite the second statewide debate on the death penalty in two years. A ballot proposal that would have ended capital punishment in California narrowly lost in 2012, with 48% of voters in favor and 52% against.

The new proposal would establish five-year court deadlines for deciding death row appeals, transfer most death penalty cases from the California Supreme Court to lower courts, and allow capital inmates to be spread among the general prison population. It also would require the condemned to work in prison, remove any threat of state sanctions from doctors who advise the state on lethal injection procedures, and exempt the execution protocols from a state administrative law that requires extensive public review.

California now has more than 700 people on death row, and the last inmate was executed in 2006. The state currently has no court-approved method of lethally injecting the condemned, and drugs to do so have been difficult to obtain. The state also has had trouble recruiting lawyers willing to handle capital appeals, which can take decades to be resolved in state and federal courts.

I am hoping this capital reform initiative makes the California ballot given that a majority of Californians have voted to retain the death penalty in the state. I have to believe that California voters do not want to preserve the distinctly dysfunction death penalty system it now has, and this initiative would appear to be the most efficient and effective means to make the state's system more functional.

If this capital reform initiative makes the California ballot, it will also be interesting to see how California's current governor and attorney general will chime in on the issue. My sense is that Gov Brown and AG Harris are generally opposed to an active capital punishment system, and thus they may be disinclined to support the initiative. But it should be hard for them to explain to voters why the support a dysfunction capital punishment system over a functional one.

February 13, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Wednesday, February 12, 2014

Effective Heritage analysis of federal MMs and statutory reform proposals

Earlier this week, the Heritage Foundation published this effective and informative Legal Memorandum titled "Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms." I plan to have the students in my Sentencing class read this memo, which was authored by Evan Bernick and Paul Larkin, because it provides a very timely review of the arguments surrounding the leading modern reform proposals. And here are the "key points" highlighted by the authors in conjunction with the memo:

The U.S. Senate is considering two bills that would revise the federal sentencing laws in the case of mandatory minimum sentences.

The Justice Safety Valve Act of 2013 expands the existing sentencing “safety valve” by allowing a judge to depart downward from any mandatory minimum “if the court finds that it is necessary to do so in order to avoid imposing” an unjust sentence.

The Smarter Sentencing Act of 2013 applies only to nonviolent drug crimes and would permit a district judge to issue sentences without regard to any mandatory minimum if the court finds that the defendant meets certain criminal history requirements and did not commit a disqualifying offense.

Although the Smarter Sentencing Act takes a smaller step than the Safety Valve Act toward the revision of the federal mandatory minimum sentencing laws, such a measured approach could enhance federal sentencing policy while avoiding a number of potential pitfalls.

February 12, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, February 11, 2014

"The Illusory Eighth Amendment"

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

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology.  In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation.  In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.

This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a substitute for constitutional interpretation.  A growing body of scholarship has shown that constitutional adjudication involves at least two distinct judicial activities: interpretation and implementation.  Prophylactic rules are defensible as implementation tools that are necessary to reduce error costs in constitutional adjudication.

This Article contributes to implementation rules theory by showing that constitutional interpretation, defined as a receptive and non-instrumental effort to understand constitutional meaning, normally must precede constitutional implementation.  When the Supreme Court constructs implementation rules without first interpreting the Constitution, the rules appear arbitrary and overreaching because they do not have a demonstrable connection to constitutional meaning.  Such rules also narrow the scope of the Constitution itself, denying protection to any claimant who does not come within the rules.  The only way to remedy this dysfunction and provide meaningful protection across a broad range of cases is to interpret the Constitution before implementing it.

February 11, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Federal judges give California two additional years to deal with prison population problems

As reported in this AP article, "federal judges on Monday gave California two more years to meet a court-ordered prison population cap, the latest step in a long-running lawsuit aimed at improving inmate medical care."  Here is more about the latest chapter in the long-running federal litigation that made it to the Supreme Court a few years ago and that continues to impact California's criminal justice system in profound ways:

The order from the three-judge panel delayed an April deadline to reduce the prison population to about 112,000 inmates. California remains more than 5,000 inmates over a limit set by the courts, even though the state has built more prison space and used some private cells.

"It is even more important now for defendants to take effective action that will provide a long-term solution to prison overcrowding, as, without further action, the prison population is projected to continue to increase and health conditions are likely to continue to worsen," the judges said in a five-page opinion scolding the state for more than four years of delay.

California has reduced its prison population by about 25,000 inmates during the past two years, primarily through a law that sends lower-level offenders to county jails instead of state prisons. It also has spent billions of dollars on new medical facilities and staff, including opening an $839 million prison medical facility in Stockton last fall.

Yet in its latest ruling, the special panel of judges tasked with considering the legal battle involving overcrowding said the state has continually failed to implement any of the other measures approved by the panel and the Supreme Court that would have safely reduced the prison population and alleviated unconstitutional conditions involving medical and mental health care. The judges said the delays have cost taxpayers money while causing inmates to needlessly suffer.

However, immediately enforcing the population cap would simply prompt the state to move thousands more inmates to private prisons in other states without solving the long-term crowding problem, the judges said. Given that choice, they adopted a proposal outlined by Gov. Jerry Brown's administration that it can reach the population cap by the end of February 2016 through steps that include expanding a Stockton medical facility to house about 1,100 mentally ill inmates and freeing more than 2,000 inmates who are elderly, medically incapacitated, or who become eligible for parole because of accelerated good-time credits.

The judges said the state also has agreed to consider more population-reduction reforms in the next two years, including the possible establishment of a commission to recommend reforms of penal and sentencing laws.

Brown said the ruling was encouraging. "The state now has the time and resources necessary to help inmates become productive members of society and make our communities safer," he said in a statement.

Brown's administration said the alternative would have been to spend up to $20 million during the fiscal year that ends June 30 and up to $50 million next fiscal year to lease enough additional cells to meet the court order. With the delay, Brown said the state can spend $81 million next fiscal year for rehabilitation programs that would otherwise be spent to house inmates.

Inmates' attorneys had wanted the judges to require the state to meet the population cap by May. "We're very disappointed," said Don Specter, director of the nonprofit Prison Law Office that represented inmates in the crowding lawsuit. "We believe that there are substantial constitutional violations continuing right now, which result in prisoners suffering and dying because of prison overcrowding."...

Republican state Sen. Jim Nielsen, who once headed the state parole board, called the court order "tragic" and said it would endanger public safety. He blamed Brown, a Democrat expected to seek re-election this year, and the court for what he called a "disastrous new system that will result in the early release of many serious and violent inmates." The state should instead increase capacity in prisons and jails while investing in rehabilitation and early intervention programs, Nielsen said in a statement.

UPDATE: This Los Angeles Times article suggests that this latest federal court order might grease the path toward California finally creating a sentencing commission. Here is how the article begins:

Talk of a sentencing commission to review whom California sends to prison and for how long helped Gov. Jerry Brown win a two-year grace period from federal judges who want crowding reduced to a safe level.  But there is no official move by the governor's office or Legislature to create one.

Brown's office was quick to point out Monday's federal court order giving the state until early 2016 to reduce crowding notes that the state only "will consider the establishment of a commission to recommend reforms of state penal and sentencing laws." Spokesman Jim Evans noted that was not a "promise" to create such a commission.

The proposal for a sentencing reform came from Senate leader Darrell Steinberg(D-Sacramento), who included it in a September 2013 letter to the federal judges supporting Brown's request for more time to deal with crowding.

February 11, 2014 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, February 10, 2014

New York Times editorial makes pitch for "Mercy in the Justice System"

The New York Times published this notable editorial today calling for a serious fix to the broken federal clemency system.  Here are excerpts:

The constitutional provision that gives the president virtually unlimited authority to grant clemency was not an afterthought.  The founders understood very well that there could be miscarriages of justice even under the rule of law.  By allowing the president to commute unjust sentences or pardon deserving petitioners who had served their time, they sought to ensure that the workings of the courts could be tempered with mercy.

Presidents Jefferson, Madison, Monroe, Lincoln, and Truman viewed the clemency process as a central mission of the office. But the concept of mercy went out of fashion by the 1980s, when the country embarked on a mandatory sentencing craze that barred judges from exercising leniency when it was clearly warranted and placed the justice system almost entirely in the hands of prosecutors.  As a consequence, even first-time offenders were largely viewed as beyond redemption.

These laws drove up the prison population 10-fold and filled the jails with young, low-level drug offenders who were confined far longer than their offenses warranted.  They also created a large and growing class of felons, who are trapped permanently at the margins of society by postprison sanctions — laws that bar them from jobs and housing, strip them of the right to vote and make it difficult for them to obtain essential documents like driver’s licenses.

The perpetual punishment model of justice has had far-reaching consequences.  Politicians stayed as far away from clemency as they could, fearing that voters would view them as soft on crime.  Meanwhile, at the Justice Department, the clemency process — which had been a cabinet-level responsibility — fell under the authority of prosecutors who seemed to view even reasonable lenience as a threat to the prosecutorial order.  The time required to handle clemency applications went from months to years; the backlog grew; the stream of mercy that had once flowed began to dry up.

The clemency system, in other words, is in a state of collapse.  The Justice Department admitted as much last month, when the deputy attorney general, James Cole, asked the criminal defense bar to help the department find suitable candidates for clemency among the many thousands of people who were casualties of the mandatory-sentencing era....

The Justice Department’s sudden interest in the clemency problem is good news, but asking defense lawyers for help is a haphazard approach.  What’s needed is wholesale reform of the department’s pardon office, which has proved itself ineffective and incompetent, partly because the current process relies on the department to evaluate its own work.

One sound idea is to create a clemency review panel outside the Justice Department, perhaps as a part of the executive office.  Mr. Obama could form an advisory board, or reconfigure the pardon office to include defense lawyers, sociologists and other experts who would bring a broader perspective to the issue.  The goal would be to give the president unbiased information that would enable him to exercise fully this important aspect of executive power.

February 10, 2014 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

"Fewer prisons — and yet, less crime"

Prison mapThe title of this post is the headline of this lengthy new piece by Detroit Free Press columnist Brian Dickerson. The piece highlights the work of one GOP state legislator and details that Michigan's recent reductions in its prison populations has not been followed by a significant crime increase. Here are excerpts:

Americans are weary of paying for prisons. After stuffing more and more people behind bars for more than two decades, the vast majority of states, including Michigan, have taken steps in recent years to reduce both the number of people they imprison and the length of time offenders remain incarcerated.

As prison populations fall, moreover, crime rates are following suit. Nobody has proved a causal relationship between the two trends, but the fact that some of the biggest reductions in crime have occurred in states that slashed their inmate populations most dramatically has debunked the presumption that public safety depends on lengthy sentences and stingy parole policies.

States that spent the 1980s and ’90s building more and bigger penitentiaries have found a better return in programs designed to divert offenders from prison, and smooth re-entry for those who’ve served their time. Politicians on the front lines say the accompanying shift in voter attitudes has been nearly as startling as the thaw in public sentiment toward same-sex marriage.

State Rep. Joe Haveman, a Holland Republican who chairs the House Appropriations Committee and has made sentencing reform a quietly messianic crusade, tells fellow lawmakers worried about looking soft on crime that voters understand that locking up more offenders is a dead end. “This movement wouldn’t be taking place if the people of this country didn’t realize we’ve made some mistakes,” Haveman says. “I come from the second-most conservative district in the state and the third most conservative county in the country,” Haveman says, “and nobody’s saying I’m wrong about reducing our prison population.

“This isn’t just good policy,” he adds, “this is where the public wants us to go.”...

In a study released last year, the Pew Center for the States reported that Michigan’s rate of incarceration plummeted 12% between 2007 and 2012, to 441 prisoners per 100,000 residents. During the same five-year interval, reported crime dropped 17%, mirroring a national decline.

It’s hard to pin either trend to a single factor, but corrections experts point to Michigan’s relaxation of its notorious “650-lifer law,” which for two decades mandated a life prison sentence for anyone convicted of possessing more than 650 grams of cocaine or heroin. In 1998, then-Gov. John Engler signed bills permitting lesser sentences for future drug offenders and allowing those already serving life terms for drug offenses to seek parole.

Michigan’s change — the amended law allowed 650-lifers to seek parole after 20 years — was a modest one. But it anticipated a nationwide retreat from the draconian drug penalties that many states put in place during the 1970s and ’80s, setting off a slow but steady decline in the percentage of state prisoners incarcerated for possessing or selling drugs.

Michigan corrections officials also credit a decrease in the number of offenders sentenced to prison for all crimes, a slight increase in paroles, and changes in parole supervision that resulted in fewer parolees being returned to prison for minor parole violations....

Haveman, who spearheaded the passage of a 2012 bill that allows more juvenile offenders to expunge their criminal records if they stay out of legal trouble [is] working to revive a state sentencing commission that would be empowered to propose a new, data-driven scheme of criminal penalties modeled on best practices nationwide. But Haveman’s fellow Republicans remain fearful of going too fast, especially in an election year.

Last year, after the U.S. Supreme Court ruled that mandatory life sentences for juvenile offenders violated the constitutional ban on cruel and unusual punishment, Haveman introduced legislation that would allow Michigan inmates already serving life sentences for crimes that they committed as teens to seek new sentences consistent with the court’s decision.

But state Attorney General Bill Schuette insists that only juveniles sentenced since the high court’s ruling in Miller v. Alabama are entitled to the relief provided by the justices. Last week, Haveman’s Republican colleagues in the House agreed, adopting his bill only after the provision authorizing parole hearings for current juvenile lifers had been stripped out....

Haveman, whose western Michigan district is ground zero for the region’s Dutch Christian Reformed conservatives, is an unlikely champion for corrections reform. A former executive director of the Holland Home Builders Association, he credits the late state Sen. William Van Regenmorter, an Ottawa County conservative who earned national recognition for his advocacy on behalf of crime victims, with sparking his interest in criminal justice and prisons.

But Haveman says he’s been equally influenced by relationships that he and his wife have formed in the course of mentoring paroled inmates in a re-entry program sponsored by their church. That experience, supplemented by Haveman’s visits with corrections workers and inmates at 31 of Michigan’s 32 correctional facilities, convinced Haveman that he had a lot in common with many of those behind bars.

“I certainly was a dumb teenager, and I made mistakes,” Haveman said. “But if I’d grown up with the policing and enforcement policies that are in place today ... well, I’m not sure I’d be in the state Legislature.”

February 10, 2014 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, February 09, 2014

Nebraska Supreme Court gives Miller retroactive impact with new statutory law

As reported in this local article, headlined "Nebraska Supreme Court ruling could affect 27 teen murder cases," late last week the Nebraska Supreme Court resolved how the SCOTUS Eighth Amendment ruling in Miller concerning juve LWOP sentences would be applied in the Cornhusker State. Here are the details:

The Nebraska Supreme Court issued precedent-­setting decisions Friday that gave hope to 27 prison inmates serving life terms for murders they committed as juveniles.  Nebraska's high court ruled that three Omaha men who were convicted when teenagers were unconstitutionally sentenced to life in prison without the possibility of parole.  While the Supreme Court upheld their murder convictions, it ordered that all three be given new sentences....

The three inmates will return to Douglas County District Court to be resentenced under a law passed last year that allows sentences from 40 years to life.  The new law also requires judges to consider factors that could mitigate the youth's responsibility....

Although the Nebraska court ruled largely in favor of the inmates on the constitutional issues, it rejected arguments that sought to remove life as an option during resentencing. Nor was the court in unanimous agreement on all of the issues involving juvenile killers.  In a dissent, two of the judges said the U.S. Supreme Court's decision should not apply to inmates who long ago lost their direct appeals....

Nebraska has 27 inmates serving life for homicides committed when they were younger than 18.  The oldest is Luigi Grayer, 58, who was 15 in 1970 when he killed an Omaha woman....

Assistant Attorney General James Smith argued that Nebraska's sentencing law didn't violate the Miller ruling because the juveniles were sentenced to life in prison, not life “without parole.”  Under Nebraska's system, such inmates would have to get their sentences reduced to a term of years by the Nebraska Board of Pardons before earning parole. Having to first win executive clemency is not the same as parole, the high court ruled, rejecting the state's argument.  In other words, a life sentence effectively means life without parole....

The second pivotal question before the court was whether the Miller decision applied to inmates whose convictions had already been upheld on appeal.  Because the high court found that the Miller ruling resulted in a “substantive” change to how juvenile killers must be sentenced, it found that the ruling applied retroactively to Mantich.  The Nebraska judges quoted from an opinion of the Iowa Supreme Court, which also determined that juvenile killers should get new hearings.

Via How Appealing, here is additional coverage of these rulings and links to the decisions:

The Lincoln Journal Star reports that "Nebraska high court vacates life sentences of 3 men" [and] the Supreme Court of Nebraska  three decisions applying the U.S. Supreme Court's 2012 ruling in Miller v. Alabama  [are] herehere, and here.

February 9, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, February 06, 2014

Opposition by NAAUSA to Smarter Sentencing Act now garnering (too?) much attention

Late last week, Bill Otis over at Crime & Consequences complained in posts here and here about the lack of media coverage regarding the expressed opposition by the National Association of Assistant United States Attorneys (NAAUSA) to statutory sentencing reforms endorsed by Attorney General Eric Holder.  Based on this new reporting from The Huffington Post, headlined "Drug Warriors Reject Obama Administration's Call For Softer Sentences," it seems that NAAUSA's actions are now garnering considerable media attention.  Here is part of the HuffPost story with this new media reality highlighted:

A group of federal prosecutors is criticizing the Department of Justice’s support for legislation that would soften U.S. drug sentencing policies.

The National Association of Assistant United States Attorneys, an organization representing about 1,300 of the 5,600 federal prosecutors, sent a letter to Attorney General Eric Holder last week objecting to his endorsement of the Smarter Sentencing Act. The bipartisan Senate bill would lighten prison sentences for people convicted of nonviolent drug offenses.

The letter, signed by NAAUSA president and assistant U.S. attorney Robert Gay Guthrie, argues that the U.S. should resist calls to reform its mandatory minimum laws, which require judges to sentence certain drug defendants to lengthy prison terms, even if the judge considers those sentences excessive.

In the letter, Guthrie insists that the “merits of mandatory minimums are abundantly clear," insisting that they reach "only to the most serious of crimes" and "target the most serious criminals."...

Guthrie did not respond to an interview request, and a NAAUSA representative told HuffPost that the organization had been overwhelmed with media attention and wouldn't be able to respond until Friday at the earliest.

I fear I may be part of the media that is overwhelming NAAUSA with attention, as I made a request late last week through the NAAUSA website for more information about its survey of federal prosecutors concerning federal mandatory minimum sentencing provisions.  As of this writing, I have not heard back from NAAUSA, nor have I been able to find out any new information about the survey.

Interestingly, though, this HuffPost article seems to have gotten some special access to the results of the NAAUSA survey.  Specifically, the HuffPost piece reports on the NAAUSA survey with a number of details that I have not previously seen publicly reported (and about which I am a bit suspicious):

An online poll conducted by the group [NAAUSA] found that just 15 percent of the nearly 650 federal prosecutors surveyed supported the Smarter Sentencing Act, while more than 60 percent opposed it....

The group dove into the debate over mandatory minimums after conducting its online survey in early November.  According to that survey, more than 80 percent of assistant U.S. attorneys interviewed don’t believe the criminal justice system is "broken," as Holder suggested in a speech in 2013.  And more than three-quarters of those surveyed said they don’t believe that the justice system disproportionately punishes people of color.

I am a bit suspicious about this recounting of the NAAUSA survey results because I think the survey may have asked generally about mandatory minimum reforms being proposed in Congress and not only about the Smarter Sentencing Act.  The SSA, significantly, does not eliminate any mandatory minimums, it just cuts their lengthy in drug cases; other bills about which NAAUSA may have asked call for much more significant reform of all existing federal mandatory minimums.  I remain eager to actually see the actual survey and the result assembled by NAAUSA because I want to be sure that the specifics of the SSA, and not just mandatory minimum reforms in general, were a focal point of the responses now that the SSA appears to be the main sentencing reform bill getting traction in Congress.

A few recent related posts:

February 6, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack

Saturday, February 01, 2014

Two notable new Sentencing Project reports on sentencing reform and prison closings

This past week, The Sentencing Project released two notable short reports on state sentencing reforms and prison closings.  Both reports are linked from this webpage, where the reports are noted and summarized in this way: 

The Sentencing Project released two reports that highlight states downsizing prison systems and adopting sentencing policy reforms. Our research documents a three-year trend of prison closings that produced a reduction of 35,000 beds, including six states reducing capacity by 11,000 beds in 2013.

On the Chopping Block 2013 documents state prison closures and attributes the trend to several factors:

  • A declining prison population in many states
  • State fiscal constraints
  • Sentencing and parole reforms in the areas of drug policy, diversion programs, and reductions in parole revocations to prison

The State of Sentencing 2013 documents reforms in 31 states in both the adult and juvenile justice systems, including:

  • Expanding alternatives to incarceration for drug offenses
  • Policies to reduce returns to prison for supervision violators
  • Comprehensive juvenile justice measures that emphasize prevention and diversion

February 1, 2014 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, January 31, 2014

Professor/practitioner perspective on DAG Cole's puzzling clemency conversation

Nearly everyone I know invested in the modern debate over federal clemency policies and practice have been intrigued and puzzled by the clemency comments made by Deputy Attorney General James Cole yesterday at the New York State Bar Association Annual Meeting (basis here and here). Helpfully, Professor Mark Osler agreed to write up his thoughts for posting here in order to provide a thoughtful perspective on that DAG Cole's comments might mean and portend:

Since starting a federal commutations clinic a few years ago, I’ve become fascinated by the clemency process. For those of us who care deeply about the constitutional pardon power, the speech by Deputy Attorney General Jim Cole in New York was a bombshell. In short, Cole announced that President Obama’s grant of eight commutations in December was just a “first step,” and that “there was more to be done.”  This isn’t subtle signaling; it is a bold and admirable announcement that the administration plans to use the pardon power systemically to address over-incarceration in narcotics cases. This is great news for those serving such sentences, sure, but it also is a remarkable moment for the pardon power itself, which has not played such an important and principled role in the justice system for decades.

There are some open questions, though. Cole said the December commutations were a “first step,” and outlined generally what the second step will be — an apparent move to funnel many more cases through the existing process. Cole described three parts of this process. First, the Bureau of Prisons will advise inmates of their right to petition for clemency and then direct inmates who respond to bar associations that are willing to help prepare petitions. Second, bar associations will then coordinate the preparation of these petitions. Third, a member of Cole’s staff will coordinate all of this.

If it works, this will result in a flood of petitions being sent to the federal pardon attorney, a DOJ functionary. Therein lies the rub. The pardon attorney, and the rest of the process between the pardon attorney and the President, has hardly been a model of efficiency. In December, those eight commutations and thirteen pardons that were granted were dwarfed by what currently clogs the pipeline — over 3,500 petitions for clemency are currently unresolved. Presumably, these new petitions will take their place at the bottom of that large pile.

At best, this will all work out somehow — there might be a plan to improve the process that we don’t know about. At worst, Cole is waving more traffic onto a jammed freeway, without first clearing the wrecks and opening the exit ramps.

Generating more clemency petitions is a good thing, but it needs to be accompanied by an administration plan to process and grant more petitions. Gerald Ford did this efficiently by creating a Presidential Clemency Board, which evaluated thousands of clemency petitions from Vietnam-era draft evaders and Army deserters. Ford’s Board did this in exactly one year, at low cost. That model should be used here. If the freeway isn’t moving, adding more cars won’t help much.

January 31, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?

I am quite pleased and excited to see that yesterday the Smarter Sentencing Act (SSA)received significant Republican support within in the Senate Judiciary Committee, with Senators Senators Mike Lee (R-Utah), Jeff Flake (R-Arizona), and Ted Cruz (R-Texas) voting in support of significant reforms to modern drug sentencing rules. Given that there are three other Tea Party Caucus Senators (Jerry Moran (R-Kansas), Rand Paul (R-Kentucky), and Tim Scott (R-South Carolina), I am relatively hopeful that establishment Republicans may not be able to prevent the SSA's passage in the full Senate.

Unfortunately for supporters of drug sentencing reform, establishment Republicans are in control in the House of Representatives, and I assume House Speaker John Beohner and/or other House leaders could quash the SSA if an whenever they might want. But what I do not know, either practically or politically, is whether establishment Republicans in the House want to kill the SSA and/or whether Tea Party players in the House are as eager to see this bill become law as some in the Senate were.

Adding to the practical and political intrigue is the intriguing fact that, as explained in this article, there are now some new mandatory minimums travelling with the SSA thanks to an amendment by the establishment Republicans on the Senate side:

The Senate Judiciary Committee approved the Smarter Sentencing Act of 2013 by a wide margin Thursday, taking a major step toward reducing mandatory drug-related sentences. Amendments attached to the bill, however, would also establish new mandatory sentences for sex crimes, domestic violence and terrorism.

The bill is sponsored by Senate Majority Whip Dick Durbin, D-Ill., and Sen. Mike Lee, R-Utah, and has significant bipartisan support. Its primary aim is to allow greater sentencing flexibility and would reduce various drug-related mandatory minimums from five, 10 and 20 years to two, five and 10 years. It would also allow prisoners with crack cocaine convictions to have their punishments revisited in light of the 2010 law that lessened penalties for the drug.

In a frustrating blow to some reformers, committee members adopted three amendments from Sen. Chuck Grassley, R-Iowa, that would add the new minimum sentences. Committee members voted 15-3 to establish a mandatory minimum sentence of five years for federal sexual abuse crimes and 15-3 to created a 10-year mandatory minimum sentence for interstate domestic violence resulting in death of the victim.

Though I have a general disaffinity for any new mandatory minimums, I am ultimately pleased by additions to the SSA that Senator Grassley added if they will aid passage of the bill. The drug mandatory reductions in the amended SSA would impact tens of thousands of federal cases every year, whereas the new mandatory minimums would likely impact only a few dozen.  I am hopeful that the added minimums might make it that much easier for establishment Republicans to vote for the SSA and for House leaders to bring the bill up for a vote.  (My gut instinct is that perhaps as many as 300 members of the full House would vote for the amended version of the SSA if it gets to a floor vote, but I remain worried it might never do so because of the establishment Republican forces eager to keep this part of the federal government big.) 

Some recent and older posts about the "new politics" of sentencing reform:

January 31, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, January 30, 2014

Deputy AG Cole's remarkable remarks to the NYSBA

Via an early New York Times article, I have already reported here on some of the clemency comments delivered today byDeputy Attorney General James Cole at the New York State Bar Association Annual Meeting.  But i have now had a chance to review the whole text of the speech delivered by Deputy AG Cole, which can be accessed here, and anyone interested in federal sentencing policy and reform should read the whole text.  Here are just a few sections that really caught my attention as a sentencing geek:

I want to talk with you today about the crisis we have in our criminal justice system. A crisis that is fundamental and has the potential to continue to swallow important efforts in the fight against crime. This crisis is the crushing prison population....

Over half of the federal prison population is there for drug offenses.  Some are truly dangerous people, who threaten the safety of our communities and need to be taken off the streets for a long time.  But others are lower level drug offenders, many with their own drug abuse issues, who fall into the all too common vicious cycle of drug abuse, crime, incarceration, release — and then the cycle repeats.

In addition, there is a basic truth that dollars are finite. Every dollar we spend at the Department of Justice on prisons — and last year we spent about $6.5 billion on prisons - is a dollar we cannot spend supporting our prosecutors and law enforcement agents in their fight against violent crime, drug cartels, public corruption, financial fraud, human trafficking, and child exploitation, just to mention a few.  In other words, if we don’t find a solution to the federal prison population problem, public safety is going to suffer.

Recognizing this dynamic, the Justice Department has been working hard to come up with solutions to stem the tide....

All of these Departmental efforts recognize the need for a broader, smarter approach to criminal justice.  We believe these efforts enhance our ability to protect our communities and maximize public safety.  These efforts not only ensure that we continue to be “smart on crime” from a limited resource perspective, but they also help to ensure that federal laws are enforced fairly.

And embedded in this issue of fairness is the consideration of sentence reductions for those who, at an earlier time, encountered severe and inflexible sentencing laws.

This brings me to another issue I want to address with you today and ask for your help. The issue is executive clemency, particularly commutation of sentence.  Commutation of sentence is an extraordinary remedy that is rarely used.  But it may be available in certain circumstances, including when an individual has a clean record in prison, does not present a threat to public safety, and has been sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate.

As I said earlier, our prisons include many low-level drug offenders.  Now, let there be no mistake, even the low-level drug offenders cause harm to people through their criminal actions and many need to be incarcerated. I don’t want to minimize the impact of their behavior.  Our prosecutors worked diligently, along with law enforcement agents, to collect evidence and charge these defendants, and then fairly and effectively obtained their convictions. T hey were properly held accountable for their criminal conduct. However, some of them, because of the operation of sentencing laws on the books at the time, received life sentences, or the equivalent of a life sentence, for limited conduct. For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair.  These older, stringent punishments, that are out of line with sentences imposed under today's laws, erode people’ s confidence in our criminal justice system....

[A]side from legislation, the President also has the ability to take executive action to positively impact the criminal justice system. A little over a month ago, the President commuted the sentences of 8 men and women who were sentenced under severe — and out of date — mandatory minimum sentencing laws....

But the President’s grant of commutations for these 8 individuals is only a first step. There is more to be done, because there are others like the eight who were granted clemency. There are more low-level, non-violent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today. This is not fair, and it harms our criminal justice system.

To help correct this, we need to identify these individuals and get well-prepared petitions into the Department of Justice. It is the Department’s goal to find additional candidates, who are similarly situated to the eight granted clemency last year, and recommend them to the President for clemency consideration.

This is where you can help. We are looking to the New York State Bar Association and other bar associations to assist potential candidates for executive clemency. We envision that attorneys will assist potential candidates in assembling effective and appropriate commutation petitions — ones which provide a focused presentation of the information the Department and the President need to consider — in order to meaningfully consider clemency for similarly situated petitioners. You each can play a critical role in this process by providing a qualified petitioner — one who has a clean record in prison, does not present a threat to public safety, and who is facing a life or near-life sentence that is excessive under current law — with the opportunity to get a fresh start.  We anticipate that the petitioners potentially eligible for consideration would include: non-violent, low-level drug offenders who were not leaders of — nor had any significant ties to — large-scale organizations, gangs, or cartels. We would also look for petitions from first-time offenders or offenders without an extensive criminal history.

January 30, 2014 in Clemency and Pardons, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote

I just received a notable news release from Families Against Mandatory Minimums concerning a notable vote today by the US Senate Judiciary Committee.  Here are the basic via the FAMM report:

Today, the U.S. Senate Judiciary Committee passed the first major reconsideration of federal mandatory minimum drug sentencing laws since the Nixon Administration. The Committee voted, 13-5, in support of S. 1410, the Smarter Sentencing Act, a bipartisan bill sponsored by Senators Mike Lee (R-UT) and Richard Durbin (D-IL).

The Smarter Sentencing Act:

  • Reduces mandatory minimum sentences for federal drug offenders by half
  • Narrowly increases the scope of an existing “safety valve” exception to federal drug offenses
  • Allows 8,800 federal prisoners imprisoned for crack cocaine crimes to return to court to seek fairer punishments in line with the Fair Sentencing Act of 2010, a unanimously-passed measure to reduce the racially discriminatory disparity between crack and powder cocaine offenses
  • Requires the U.S. Department of Justice and other federal agencies to compile, and make publicly available on their websites, lists of all federal laws and regulations carrying criminal penalties. This part of the bill addresses growing bipartisan concerns about the issue of “over-criminalization” – that there are too many federal crimes and that people can and do unknowingly and unintentionally break laws and regulations and serve jail or prison time for violations that could be better addressed with fines.
  • Adds new mandatory minimum sentences for sexual abuse, domestic violence, and terrorism offenses

This new piece up at Huffington Post, headlined "Biggest Overhaul in Federal Drug Sentencing in Decades Clears Major Hurdle, Despite Opposition From Heartless Prosecutors," provides more information about who is for and who is against this important legislative development:

Today the U.S. Senate Judiciary Committee passed bipartisan sentencing reform legislation that reduces the federal prison population, decreases racial disparities, saves taxpayer money, and reunites nonviolent drug law offenders with their families sooner. The reforms are supported by a strange bedfellows group of senators, including Senators Mike Lee (R-Utah), Rand Paul (R-Kentucky), Jeff Flake (R-Arizona), Ted Cruz (R-TX), Patrick Leahy (D-VT), Dick Durbin (D-IL), Carl Levin (D-MI) and Sheldon Whitehouse (D-RI). The legislation is opposed by some U.S. prosecutors who continue to defend a harsh, racially unjust system that has led to a greater percentage of black men being locked up in the U.S. than in South Africa at the height of Apartheid.

The bill, the Smarter Sentencing Act, is the biggest overhaul in federal drug sentencing in decades. It would reduce federal mandatory minimum sentences for drug offenses and expand the ability of judges to use their own discretion when sentencing defendants, so that judges can consider the unique facts of each case and each individual before them. It would also make the reform to the crack/powder cocaine sentencing disparity that Congress passed in 2010 retroactive, so that thousands of people sentenced under the old draconian and racially unjust disparity can leave prison early.

Even though U.S. Attorney General Eric Holder urged the committee to reform mandatory minimum sentencing yesterday, the National Association of Assistant U.S. Attorneys took the somewhat rare step of opposing the Attorney General by releasing a letter in opposition to reform. "We do not join with those who regard our federal system of justice as 'broken' or in need of major reconstruction," the organization said. "Instead, we consider the current federal mandatory minimum sentence framework as well-constructed and well worth preserving."

January 30, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack

"White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?

WeldonThe title of this post is drawn the headline of this notable new New York Times article, which includes these excerpts:

The Obama administration, in its effort to curtail severe penalties in low-level drug cases, is taking the unprecedented step of encouraging defense lawyers to suggest inmates whom the president might let out of prison early.

Speaking at a New York State Bar Association event Thursday, Deputy Attorney General James M. Cole said the Justice Department wanted to send more names to White House for clemency consideration.  “This is where you can help,” he said, in remarks the Justice Department circulated in advance.  Prison officials will also spread the word among inmates that low-level, nonviolent drug offenders might be eligible to apply for clemency.  

The clemency drive is part of the administration’s effort to undo sentencing discrepancies that began during the crack epidemic decades ago. Offenses involving crack, which was disproportionately used in black communities, carried more severe penalties than crimes involving powder cocaine, which was usually favored by affluent white users....

“There are more low-level, nonviolent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today,” Mr. Cole said. “This is not fair, and it harms our criminal justice system.”

Like lots of lousy crime and punishment reporting, this piece fails to highlight the important realities that (1) any and every federal defendant is "eligible to apply for clemency," but that the Obama Administration (like prior administrations) is historically disinclined to bother to consider seriously any of these applications, and (2) according to this official accounting, there are currently over 3,500 pending pardon and commutation applications at the White House right now.

I am pleaed that a DOJ official is now talking about defense lawyers suggesting inmates whom the president might let out of prison early, but I sense that defense lawyers are doing this a-plenty.  In addition, the US Sentencing Commission surely has a list of all the persons who would benefit from the FSA if it were made fully retroactive.   The White House already has plenty of information (and so many ways to readily find additional information) concerning who could and should sensibly be considered for clemency relief.  The problem is not information, but the courage to walk the walk (rather than just talk the talk) about correcting excessively harsh prison sentencing politicies and practices that are "not fair ... [and] harm our criminal justice system.”

As the rest of the title of this post is meant to highlight, good candidates for clemency are not only crack dealers.  Especially in light of recent reform of state marijuana laws, I think one can validly argue that there are constitutional problems with the sentences being served by federal marijuana offenders like Weldon Angelos and Chris Williams, both of who are current serving lengthy prison terms for doing essentially what is now being done by dozens of licensed marijuana  marijuana dealers every hour of every day in Denver.  Constitutional arguments aside, I think both should quickly go to the very top of the White House clemency list ASAP, especially if Prez Obama really believes what he says about marijuana being really no more harmful than alcohol.

January 30, 2014 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, January 29, 2014

SCOTUS grants stay of Missouri execution because . . . ? UPDATE: Execution completed after many hours of legal wrangling

As detailed in this AP report, headlined "Supreme Court grants stay of execution for killer Herbert Smulls," it seems concerns about lethal injection drugs and plans in Missouri has gotten the attention of at least one Justice. Here are the details:

The U.S. Supreme Court has granted a stay of execution for Missouri death row inmate Herbert Smulls. Justice Samuel Alito signed the order, sent out late Tuesday night.

Smulls’ attorney, Cheryl Pilate, says the stay is temporary while the high court reviews the case, but she is hopeful it will become permanent. The execution team will reconvene at noon today, expecting the stay to have been lifted, said Mike O’Connell, spokesman for the Department of Public Safety.

Pilate had made last-minute pleas to spare Smulls, focusing on the state’s refusal to disclose from which compounding pharmacy it had obtained the lethal-injection drug, pentobarbital. Missouri has argued that the pharmacy is part of the execution team so its name can’t be released.

Smulls was convicted of killing a St. Louis County jeweler and badly injuring his wife during a 1991 robbery. Smulls had been scheduled to die at 12:01 a.m. today, at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre.“We’re happy to get the stay and we’re glad the court is reviewing it,” Pilate said.

A message late Tuesday seeking comment from Eric Slusher, a spokesman for Missouri Attorney General Chris Koster, was not immediately returned. Gov. Jay Nixon denied clemency on Tuesday afternoon for Smulls. “These crimes were brutal, and the jury that convicted Smulls determined that he deserved the most severe punishment under Missouri law,” he said in an email.

On Monday, a federal judge denied a stay of execution that Smulls’ lawyers had asked for 60 days to prove that Missouri’s injection would violate his Eighth Amendment protections against cruel and unusual punishment, by putting him at risk of an excruciating death.

Smulls, 56, of St. Louis, was sentenced to death for the 1991 murder of Chesterfield jeweler Stephen Honickman. He would be the third inmate to be executed in Missouri in three months using pentobarbital produced for the Department of Corrections by a compounding pharmacy in Oklahoma.

I cannot help but speculate that Ohio's recent lethal injection controversy somehow played a role in the granting of this stay. But this AP report suggests that Missouri was not planning to adopt Ohio's new execution method, but rather its already established method of using compounded pentobarbital. Therefore, I am a bit puzzled as to just why Justice Alito would intervene on this issue, especially after the Eighth Circuit had last week rejected en banc this condemned murderer's complaints abut the execution process.

Among my concerns about this stay is the message it seems to send to anyone scheduled to be executed by any method in any state. If Ohio's troubles using a different execution method prompts SCOTUS to stop or delay Missouri's distinct execution plans, then I think any and every lawyer for a capital defendant arguably has an obligation to re-raise (and re-raise and re-raise) in state and federal courts any and all possible claims about one state's execution methods after each and every execution anywhere else in the US.

UPDATE:  I have now heard from a knowledgeable source that Smulls also had a Batson claim before the Supreme Court and that it may be Batson issues, not any Eighth Amendment claim, that is serving as the basis for the stay.

ANOTHER UPDATE:  This AP report notes the stays were all finally lifed and that Smulls was executed late Wednesday night:

Late Wednesday night, Smulls was put to death with a lethal dose of pentobarbital, Missouri's third execution since November and the third since switching to the new drug that's made by a compounding pharmacy the state refuses to name.

Smulls, 56, did not have any final words. The process was brief, Smulls mouthed a few words to his two witnesses, who were not identified, then breathed heavily twice and shut his eyes for good. He was pronounced dead at 10:20 p.m.

Florence Honickman spoke to the media after the execution, flanked by her adult son and daughter. She questioned why it took 22 years of appeals before Smulls was put to death. "Make no mistake, the long, winding and painful road leading up to this day has been a travesty of justice," she said.

His attorneys spent the days leading up to the execution filing appeals that questioned the secretive nature of how Missouri obtains the lethal drug, saying that if the drug was inadequate, the inmate could suffer during the execution process. The U.S. Supreme Court granted a temporary stay late Tuesday before clearing numerous appeals Wednesday -- including the final one that was filed less than 30 minutes before Smulls was pronounced dead, though the denial came about 30 minutes after his death....

Like Joseph Paul Franklin in November and Allen Nicklasson in December, Smulls showed no outward signs of distress in an execution process that took about nine minutes. Missouri had used a three-drug protocol for executions since 1989, but makers stopped selling those drugs for executions. Missouri ultimately switched late last year to a form of pentobarbital made by a compounding pharmacy. The state claims that since the compounding pharmacy is part of the execution team, it is not required to disclose its name....

Smulls' legal case was protracted over several appeals and over several years, finally ending in 2009 with the death sentence. His accomplice, Norman Brown, was sentenced to life in prison without parole. "It was a horrific crime," [[St. Louis County prosecutor Bob] McCulloch said. "With all the other arguments that the opponents of the death penalty are making, it's simply to try to divert the attention from what this guy did, and why he deserves to be executed."

Compounding pharmacies custom-mix drugs for individual clients and are not subject to oversight by the U.S. Food and Drug Administration, though they are regulated by states. Smulls' attorney, Cheryl Pilate, contended the state's secrecy regarding where the pentobarbital is made makes it impossible to know whether the drug could cause pain and suffering during the execution process.

Pilate also said she and her defense team used information obtained through open records requests and publicly available documents to determine that the compounding pharmacy is The Apothecary Shoppe, based in Tulsa, Okla. In a statement, The Apothecary Shoppe would neither confirm nor deny that it makes the Missouri drug.

Pilate said the possibility that something could go wrong persists, citing recent trouble with execution drugs in Ohio and Oklahoma. She also said that previous testimony from a prison official indicates Missouri stores the drug at room temperatures, which experts believe could taint the drug, Pilate said, and potentially cause it to lose effectiveness.

Some Missouri lawmakers have expressed reservations about the state's execution procedure. On Tuesday, Missouri Senate Democratic Leader Jolie Justus introduced legislation that would create an 11-member commission responsible for setting the state's execution procedure. She said ongoing lawsuits and secrecy about the state's current lethal injection method should drive a change in protocol.

January 29, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Notable New York story about "gentleman heroin dealer" getting out from under LWOP sentence

A helpful reader alerted me to this fascinating little New York Times story of one federal defendant (of too many) sentenced to LWOP for a first-offende drug crime who later became one federal prisoner (of too few) who got a lower prison term at a resentencing after spending nearly a quarter-century in federal prison.  The story demands a full read, but here is a snippet:

Time for a question to Myles Coker about the origins of a life that he had kept secret from the people closest to him.  How had he gotten started in the heroin trade?  Mr. Coker did not blink.  “It was back in the ’80s,” he said, when he worked for an illegal gambling business.

His son Clifton pulled his chair closer.  “I’ve never heard this part of the story,” he said. Neither had others at lunch at the National Arts Club on Friday.  Among them were Mr. Coker’s lawyer, Harlan Protass, who got him out of prison at age 63, well ahead of the life term he was supposed to serve, and Roland Riopelle, the former federal prosecutor who had put Mr. Coker behind bars.

A star wide receiver in college who is still in excellent shape, Mr. Coker did not use drugs himself.  He ran an entirely legitimate limousine business that had among its clients “The Cosby Show.” The parents of children he coached in Little League held parties to thank him for his devotion.  His wife was a teacher, principal and textbook author; their two sons, Clifton and Kelvin, went through private elementary schools in Manhattan, Poly Prep high school in Brooklyn and top colleges, and have enjoyed professional success.

Unknown to all, Mr. Coker was a gentleman heroin dealer.  His work for an illegal gambling operation — he took bets on sporting events over phones in safe houses in the Bronx — brought him to the home of Anthony Damiani, an overseer of the operation, who lived in Morris Park. “Not at the beginning, but after a few years, all this cash was coming in,” Mr. Coker said. “Once they got into heroin, I was seeing the currency machine for counting cash. They had me carrying it in sacks.”

He was invited to set up distribution in Harlem, and after a few years, took up the offer. “Greed just took me,” Mr. Coker said.  He eventually ran about five or six spots, a business that he said brought him about $25,000 in cash profits per month.... Records kept by one particularly diligent member of the organization showed that Mr. Coker had been supplied with 691,430 glassine bags in 26 months.  In time, 50 people, including Mr. Coker, were arrested. He was sentenced, under federal laws that are no longer in effect, to life without parole.

“He was just gone; we didn’t know where he was,” said Clifton Coker, who was then 10. By phone, the boys’ father told them he was away training a boxer. The boys’ mother, Deborah Coker, consulted a psychologist, who said the children should be told by their father of his whereabouts, but he did not disclose the details of his offense or that the federal authorities had written, “It does not appear that he will be discharged from said custodial sentence prior to his demise.”

Not until Kelvin Coker was at Amherst College and able to work the Internet did the brothers realize that their father was not supposed to ever come back....  The sons went on a campaign to find a way out of prison for their father, and hired Mr. Protass.  With hearty letters from prison guards who praised him for his sterling record as a peacekeeper, and with legal filings by Mr. Protass that Judge Loretta A. Preska of United States District Court said were “some of the best papers I’ve seen,” Mr. Coker was resentenced in August to time served — just under 23 years....

When Mr. Riopelle heard that Mr. Coker had been released, he invited him to lunch. “I want to see people like him succeed,” Mr. Riopelle said.

January 29, 2014 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (14) | TrackBack

Monday, January 27, 2014

SCOTUS unanimously rules in Burrage that causation requirement precludes drug defendant facing mandatory minimum for abuser's death

In its one criminal justice ruling this morning, the Supreme Court today via a unanimous vote in Burrage v. United States, No. 12-7515 (S. Ct. Jan. 27, 2014) (available here), rejected an effort by federal prosecutors to expand the reach and application of a mandatory minimum sentencing provision for a drug defendant. Here is the closing paragraph of the opinion of the Court authored by Justice Scalia:

We hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U. S. C. §841(b)(1)(C) unless such use is a but-forcause of the death or injury. The Eighth Circuit affirmed Burrage’s conviction based on a markedly different under­standing of the statute, see 687 F. 3d, at 1020–1024, and the Government concedes that there is no “evidence that Banka would have lived but for his heroin use,” Brief for United States 33. Burrage’s conviction with respect to count 2 of the superseding indictment is therefore re­versed, and the case is remanded for further proceedings consistent with this opinion.

January 27, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | 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