Wednesday, August 16, 2017

"Let Prisoners Learn While They Serve"

The title of this post is the headline of this new New York Times editorial.  Here are excerpts:

Criminal justice officials across the country are struggling to break the recidivism cycle in which prisoners are released only to land right back behind bars.  These prisoners are among the most poorly educated people in the country, and that fact holds the key to a solution.  Decades of research has shown that inmates who participate in prison education programs — even if they fail to earn degrees — are far more likely to stay out of prison once they are freed.

That prison education programs are highly cost effective is confirmed by a 2013 RAND Corporation study that covered 30 years of prison education research.  Among other things, the study found that every dollar spent on prison education translated into savings of $4 to $5 on imprisonment costs down the line.  Other studies suggest that prisons with education programs have fewer violent incidents, making it easier for officials to keep order, and that the children of people who complete college are more likely to do so themselves, disrupting the typical pattern of poverty and incarceration.

Findings like these have persuaded corrections officials in both Democratic and Republican states to embrace education as a cost-effective way of cutting recidivism. But Republican legislators in New York — which spends about $60,000 per inmate per year — remain mired in know-nothingism and argue that spending public money on inmates insults taxpayers.  They have steadfastly resisted Gov. Andrew Cuomo’s common-sense proposal for making a modest investment in prison education programs that have already proved highly successful on a small scale in New York’s prisons....

Prison education programs were largely dismantled during the “tough on crime” 1990s, when Congress stripped inmates of the right to get the federal Pell grants that were used to pay tuition.  The decision bankrupted many prison education programs across the country and left private donors and foundations to foot the bill for those that survived.

Despite limited and unreliable funding, these programs have more than proved their value.  New York lawmakers who continue to block funding for them are putting ideology ahead of the public interest.

August 16, 2017 in Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

ABA delegates pass resolution against mandatory minimums and defer vote on resolution against new Sessions charging memo

Aba-logo-defending-liberty-pursuing-justiceAs reported in this ABA Journal report, the "ABA House of Delegates on Tuesday approved a late-offered resolution backing a ban on mandatory minimum sentences, while sponsors withdrew another late sentencing resolution after hearing from the U.S. Justice Department." Here are more details:

Delegates approved Resolution 10B, which opposes the imposition of mandatory minimum sentences in any criminal case.  The resolution calls on Congress and state legislatures to repeal laws requiring mandatory minimums and to refrain from adopting such laws in the future....

“Sentencing by mandatory minimums is the antithesis of rational sentencing policy,” the report says.  Basic fairness and due process require sentences to be the same among similarly situated offenders and proportional to the crime, the report says.

Though the ABA is on record for opposing mandatory minimums, the resolution “is timely and it is indeed urgent” because Congress is considering a number of bills that would impose new mandatory minimums, according to Kevin Curtin of the Massachusetts Bar Association.  Curtin told the House that mandatory minimums have produced troubling race-based inequities.  Blacks are more likely than whites to be charged with crimes carrying mandatory minimum sentences, and they are more likely to be sentenced to a mandatory minimum term, he said.

The withdrawn proposal, Resolution 10A, would have urged the Department of Justice to rescind a policy adopted in May by Attorney General Jeff Sessions.  The Sessions policy directs federal prosecutors to charge and pursue the most serious, readily provable offense, unless they get approval of superiors to deviate from the policy.  The ABA resolution urges that the department reinstate policies permitting federal prosecutors to make individualized assessments in each case....

Neal Sonnett, representing the ABA Criminal Justice Section, explained why the proposal was withdrawn.  The Justice Department has a designated seat within the section, but it did not voice an objection until Monday afternoon, he said.  The department indicated it believed there were errors in the section report and it wanted to continue discussions, Sonnett said.  The section withdrew the resolution to allow for those discussions and intends to bring it back to the House at the ABA Midyear Meeting in February.

A report to the House of Delegates said Sessions’ decision will lead to increased use of mandatory minimums for low-level and nonviolent drug offenders and a rise in incarceration.  “The draconian charging and sentencing policies urged by Sessions are a throwback to the policies of limited prosecutorial discretion and increased mandatory minimum sentences — policies that did not work — and are in stark contrast to the progressive trend in policies over the last 10 years,” the report says.

The ABA website provides information about the withdrawn Resolution 10A as well as the adopted Resolution 10B.

August 16, 2017 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Tuesday, August 15, 2017

Spotlighting a prominent constitutional challenge to Arizona's and the nation's death penalty

Chris Geidner has this new Buzzfeed News report about a new cert petition under the headline "A Top Lawyer Asks Supreme Court To Hear A Major Death Penalty Case." Here are some of the details:

An Arizona death row inmate, Abel Daniel Hidalgo, has been arguing for the past three years that the state’s death penalty law is unconstitutional because it doesn’t do enough to narrow who is eligible for the death penalty, among those convicted of murder. Earlier this year, Neal Katyal, best known these days for serving as the lead lawyer for Hawaii’s challenge to President Trump’s travel ban, agreed to serve as Hidalgo’s lawyer at the Supreme Court.

Katyal, the former acting solicitor general in the Obama administration, asked the justices in Monday’s filing to hear Hidalgo’s case and to strike down Arizona’s death penalty law.

The filing comes more than two years after Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, called for a wholesale review of the constitutionality of the death penalty. Justice Sonia Sotomayor has also expressed great concerns about the courts’ handling of death penalty cases, as well as some states’ death penalty laws.

And Justice Anthony Kennedy has expressed concerns about the death penalty’s imposition, and has cast key votes excluding groups of people — like children or the intellectually disabled — from being eligible for the death penalty. He has not, however, given any specific indication that he is ready to join Breyer’s call to review the constitutionality of the death penalty overall — and has allowed several executions to proceed since Breyer's call.

Katyal, however, joined by other lawyers at his firm, Hogan Lovells, as well as the Office of the Legal Advocate in Arizona and Arizona attorney Garrett Simpson, thinks the time is now — a move that could be tied to concerns by many liberal lawyers about whether and when Kennedy, at 81, might retire from the court. “I have spent the last few years with my team looking for cases that highlight the gross problems with the death penalty in practice, and this case is a perfect example of them,” Katyal told BuzzFeed News on Monday evening. “We look forward to the Supreme Court's review of Mr. Hidalgo's petition.”...

The brief points out that the court in Gregg found the new state death penalty laws to be constitutional because they required the finding of “aggravating” circumstances — a move that the court’s controlling opinion concluded would “direct and limit” who was eligible for execution “so as to minimize the risk of wholly arbitrary and capricious action.”

Forty years later, Arizona’s death penalty law is such that there are so many aggravating circumstances that “every first degree murder case filed in Maricopa County in 2010 and 2011 had at least one aggravating factor” making the person eligible for the death penalty. Hidalgo pleaded guilty in 2015 to two January 2001 murders in a murder-for-hire scheme in Maricopa County, Arizona. He was then sentenced to death by a jury. “Arizona’s scheme utterly fails,” Katyal wrote, to “genuinely narrow the class of persons eligible for the death penalty” as the court has required over the time since Gregg.

For this reason alone, Hidalgo’s legal team argues, the court should take the case and strike down Arizona’s death penalty law. But, beyond that, the filing goes on, “A national consensus has emerged that the death penalty is an unacceptable punishment in any circumstance.” The brief argues that the court should take the case and rule that the death penalty, nationwide, is unconstitutional under the Eighth Amendment’s guarantee against cruel and unusual punishment. This is so, the brief argues, because “the number of death sentences imposed and carried out has plummeted.”

The brief also points to three further key arguments in support of this larger aim: First, states can’t give guidance that ensures that only “the worst offenders” are sentenced to death. Second, states can’t enforce the death penalty without “ensnaring and putting to death the innocent.” And, finally, “the present reality of capital punishment” — decades spent on death row with “the remote but very real possibility of execution” — is its own possible constitutional violation.

The cert petition, available at this link, sets out these "Questions Presented":

I.  Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment.

II.  Whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

August 15, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Monday, August 14, 2017

More notable talk by Prez Trump about possible use of his pardon authority

As noted in this post from a few weeks ago, Prez Trump earlier this summer got more than a few media members and academic talking about the historic presidential clemency authority when he reportedly starting asking about his whether he could pardon folks potential caught up in the on-going Russia investigation.  Today brings more summer pardon talk from Prez Trump, but with a notably different (though also controversial) target.  This Fox News piece, headlined "Trump 'seriously considering' a pardon for ex-Sheriff Joe Arpaio," provides the details:

President Trump may soon issue a pardon for Joe Arpaio, the colorful former Arizona sheriff who was found guilty two weeks ago of criminal contempt for defying a state judge’s order to stop traffic patrols targeting suspected undocumented immigrants.  In his final years as Maricopa County sheriff, Arpaio had emerged as a leading opponent of illegal immigration.

“I am seriously considering a pardon for Sheriff Arpaio,” the president said Sunday, during a conversation with Fox News at his club in Bedminster, N.J. “He has done a lot in the fight against illegal immigration.  He’s a great American patriot and I hate to see what has happened to him.”  Trump said the pardon could happen in the next few days, should he decide to do so.

Arpaio, 85, was convicted by U.S. District Judge Susan Bolton of misdemeanor contempt of court for willfully disregarding an Arizona judge’s order in 2011 to stop the anti-immigrant traffic patrols. Arpaio had maintained the law enforcement patrols for 17 months thereafter.  The man who built a controversial national reputation as “America’s toughest sheriff” admitted he prolonged his patrols, but insisted he did not intend to break the law because one of his former attorneys did not explain to him the full measure of restrictions contained in the court order.

He is expected to be sentenced on Oct. 5 and could face up to six months in jail.  However, since he is 85 years old and has no prior convictions, some attorneys doubt he will receive any jail time.

Citing his long service as “an outstanding sheriff,” the president said Arpaio is admired by many Arizona citizens who respected his tough-on-crime approach.  Arpaio’s widely publicized tactics included forcing inmates to wear pink underwear and housing them in desert tent camps where temperatures often climbed well past 100 degrees Fahrenheit.  He also controversially brought back chain gains, including a voluntary chain gang for women prisoners.

Civil liberties and prisoner advocates as well as supporters of immigrants’ rights have criticized Arpaio for years, culminating in his prosecution.  He lost his bid for reelection last year. “Is there anyone in local law enforcement who has done more to crack down on illegal immigration than Sheriff Joe?” asked Trump. “He has protected people from crimes and saved lives.  He doesn’t deserve to be treated this way.”

Stopping the flow of undocumented immigrants across the southern U.S. border was a central theme of the president’s campaign. Arpaio endorsed Trump in January 2016. Trump indicated he may move quickly should he decide to issue a presidential pardon. “I might do it right away, maybe early this week. I am seriously thinking about it.”

Trump could decide to await the outcome of an appeal by Arpaio’s lawyers who contend their client’s case should have been decided by a jury, not a judge.  In a statement after the verdict, his attorneys stated, “The judge’s verdict is contrary to what every single witness testified in the case.  Arpaio believes that a jury would have found in his favor, and that it will.”

Reached Monday for reaction to the possible pardon, Arpaio expressed surprise that Trump was aware of his legal predicament. “I am happy he understands the case,” he told Fox News. “I would accept the pardon because I am 100 percent not guilty.”  The former sheriff said he will continue to be a strong supporter of the president regardless of whether he receives a pardon.  But he also voiced concern that a pardon might cause problems for Trump, saying, “I would never ask him for a pardon, especially if it causes heat. I don’t want to do anything that would hurt the president.”

Trump has not granted any pardons so far in his presidency.

While I was putting this post together, I received an email with a link to this ACLU comment on a possible Arpaio pardon.  The comment closes with these notably sharp statements:

ACLU Deputy Legal Director Cecillia Wang had this reaction to media reports that Trump may pardon Arpaio: “President Trump would be literally pardoning Joe Arpaio’s flagrant violation of federal court orders that prohibited the illegal detention of Latinos.  He would undo a conviction secured by his own career attorneys at the Justice Department.  Make no mistake: This would be an official presidential endorsement of racism.”

August 14, 2017 in Celebrity sentencings, Clemency and Pardons, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (8)

Notable application of DOJ spending restriction to halt federal sentencing of convicted marijuana offenders

This new Los Angeles Times article, provocatively headlined "The feds seized guns, gold and 320 pot plants. So why did a judge rule they can't pursue marijuana charges?," reports on a notable federal District Judge ruling from last week.  Here are the basics:

When agents from the Drug Enforcement Administration raided a remote farm in Humboldt County five years ago, they found plenty to incriminate the owners, Anthony Pisarski and Sonny Moore. More than 300 marijuana plants were growing in a pair of greenhouses. Agents found guns in a house on the sprawling property and about $225,000 in cash, much of it bundled in vacuum-sealed pouches, hidden in a garage and some pickup trucks. Later searches uncovered another large stash of cash, along with bars of gold and silver.

Pisarski and Moore ultimately pleaded guilty to a federal charge of conspiring to manufacture and sell marijuana.

But in a ruling believed to be the first of its kind, a judge last week put a stop to the case before the men were sentenced to prison. The judge found he had no choice but to call off prosecutors in light of an unusual budget rule in Congress that forbids federal law enforcement from interfering with states where medical marijuana is legal.

The decision by U.S. District Judge Richard Seeborg in San Francisco illustrates for the first time what could be a serious legal hurdle if U.S. Atty. Gen. Jeff Sessions, a fierce marijuana opponent, decides to crack down on medical marijuana, which remains illegal under federal law. While it remains to be seen how many other marijuana cases will be closed down like the one in San Francisco, supporters of states’ authority to legalize pot hailed the decision and said they hoped it served as a check on Sessions.

“This is a signal that hopefully will go totally across the country — that federal prosecutors should stop wasting their time and start focusing on real criminals,” U.S. Rep. Dana Rohrabacher (R-Costa Mesa), who has led a legislative campaign to rein in the Justice Department on medical marijuana cases, said of the judge’s order.  “My conservative friends like Jeff [Sessions] need to look themselves in the mirror and say, ‘We don’t like these people smoking marijuana, but they do have a right to do it because it’s their lives, not the government’s.’ ”

The ruling hinged on a short amendment written by Rohrabacher and then-U.S. Rep. Sam Farr (D-Carmel), who recently retired, to an appropriations bill in late 2014 that authorized government spending for the upcoming year.  Though brief, the amendment was meant to have a significant effect: It forbade the Department of Justice from using funds in a way that obstructed a state “from implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.” Congress has renewed the prohibition each year since.

Until now, U.S. district judges had rejected attempts by defendants to argue that the amendment applied to their cases.  In a case in Fresno involving a man convicted of illegally operating a marijuana cooperative, for example, a judge found the man had violated California’s medical marijuana law by selling marijuana for profit and therefore was fair game for federal prosecution....

For Pisarski and Moore, the budget amendment offered a last-minute lifeline.  The amendment was added when the pair were only days away from being sentenced. Prosecutors were asking the judge to send the men to prison for nearly three years.  The pair owned 242 remote acres of property that included a house, a warehouse and two greenhouses where agents discovered 320 growing marijuana plants, according to court records filed by the U.S. attorney’s office . Federal agents found a loaded firearm in both of their bedrooms.  Among the evidence seized was $189,000 in cash that had been welded inside the lining of a trailer.

Pisarski’s attorney, Ronald Richards, made an emergency request to postpone the sentencing in order to see if the amendment would be signed into law.  The judge agreed, and when the spending rule, which passed with broad bipartisan support, became law, Richards said he sent emails to public defenders and other defense attorneys across the country to alert them to the new legal avenue the amendment opened in marijuana cases....

Justice Department officials, however, balked at such an expansive interpretation of the amendment. They acknowledged the spending ban prohibited them from meddling in the affairs of state officials but did not accept that it prevented them from going after producers and sellers like Pisarski and Moore. Richards and Moore’s attorney sought to push back the sentencing over and over as the legal landscape on marijuana cases continued to shift.

Last year, the 9th Circuit Court of Appeals ruled that defendants in California and other states in the court’s jurisdiction with medical marijuana laws were entitled to a hearing to determine whether they had been in compliance with those state laws. If defendants could demonstrate that they had abided by state rules, prosecutors were to be blocked from pursuing federal drug charges, the court said.

Last month, Seeborg held a hearing for Pisarski and Moore. Their attorneys argued the marijuana plants the men grew were earmarked for two nonprofit collectives that distributed it to its members in line with California regulations. In a court filing, Pisarski told the judge he needed guns at the house to protect himself against “mountain lions, pigs with big teeth and bears” when he was outside at night. The government countered that the men had not proved that all the members of the collective were legitimate and that the guns, cash and gold indicated the men planned to sell the pot for profit.

On Tuesday, Seeborg sided with Pisarski and Moore, saying the men were under no burden to verify that members of the collectives were qualified to belong. He acknowledged that the money and weapons could be signs of a criminal operation, but said they were “equally consistent with the operation of a rural, cash-intensive enterprise.” In his ruling, Seeborg echoed the 9th Circuit when he emphasized his decision was valid only as long as Congress continues to renew the spending restrictions on the Justice Department.

Having admitted their guilt but not been sentenced, Pisarski and Moore find themselves in an odd legal limbo. Prosecutors in their case did not respond to requests for comment, leaving it unknown whether the U.S. attorney in the Northern District of California will ask for the case to be dismissed or try to wait to see if Congress does an about-face.

I cannot yet seem to find a copy of Judge Seeborg's notable ruling anywhere on-line as of this writing. I will be sure to post it if I can get a copy/link sent my way.

UPDATE:  A helpful reader sent me a copy of Judge Seeborg's 10-page ruling in US v. Pisarski, and it can be downloaded via this link:

  Download Seeborg spending rider ruling

August 14, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (10)

Saturday, August 12, 2017

"Trump Wants to Get Tough on Crime. Victims Don’t Agree."

The title of this post is the headline of this intriguing New York Times piece about the results of this interesting recent survey of "crime survivors." Here are excerpts:

Sending more people to prison, deporting illegal immigrants, cracking down on marijuana use — those are some of the things the Trump administration has said will make America safer.  But what do crime victims think about all this? It is a group whose views are rarely measured, but a poll commissioned by the Alliance for Safety and Justice sought to find out.

A few notes of caution: The group supports criminal justice reform, including incarcerating fewer people, and seeks to promote the voices of victims who agree.  And the random survey, which has a margin of sampling error of 3.4 percent, was taken in May, before President Trump repeatedly criticized Jeff Sessions, the attorney general, on Twitter.

But it is a rare chance to hear from victims, more than 800 of whom were asked about their views on the administration’s criminal justice policies.  By and large, their priorities appear very different from the president’s.

Half of respondents said they felt less safe since Mr. Trump took office, though it was not clear that this was because of his approach to criminal justice.  Only 39 percent said they felt less safe when Mr. Trump discussed crime or criminal justice.  But when the president posts on Twitter, the number who feel less safe jumps to 57 percent, according to the survey.

About three in four said they were happy with their local police and law enforcement in general. While only about 42 percent rated Mr. Trump favorably, that was higher than the president’s favorability rating among the general population at the time. About a third held positive views of Mr. Sessions.

When victims were asked to name two things that contributed most to crime in their communities, just 12 percent blamed undocumented immigrants.  Almost nobody thought there were too few people in prison.  Instead, more than half named drug and alcohol addiction, and nearly a third pointed to poor parenting.  Mental health issues and a lack of job opportunities also ranked high on the list.

“‘Lock ’em up and throw away the key,’ that’s the traditional way of thinking, but many victims don’t want ‘tough on crime’ and incarceration,” said Aswad Thomas, 34, who was shot twice in the back during a robbery attempt in Hartford in 2009, ending his plans to play professional basketball. “Most of us want more rehabilitation services for crime victims.”

Mr. Thomas, now the membership director at the Alliance, said once he found out that both of the young men who had shot him had been victims of crime themselves, he became convinced that offering counseling and trauma services to victims could itself help reduce violent crime.

A vast majority of respondents supported increasing treatment for addiction and mental health, while they were less enthusiastic about Trump administration policies like seeking the maximum punishment for drug offenders and increasing deportations, which only 40 percent of respondents favored.  Nearly two-thirds said they did not want federal drug laws to be enforced in states where marijuana use has been legalized....

A majority of respondents — 84 percent — said additional funding should be spent on rehabilitation and drug and mental health treatment programs for people in the justice system. Some views held true despite the respondents’ political leanings. Among those who said they held a favorable opinion of Mr. Trump, more than half chose addiction as a leading driver of crime.

August 12, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (12)

Interesting and consequential Florida Supreme Court decision on retroactivity of Hurst

As this Death Penalty Information Center posting details, the Florida Supreme Court this past week reiterated that it would not apply retroactively its rulings requiring unanimous jury verdicts for death sentences to cases made final by June 2002 when SCOTUS decided Ring v. Arizona. The Florida court's per curiam opinion in Hitchcock v. Florida, No. SC17-445 (Fla. Aug. 10, 2017) (available here), mostly just restates a prior retroactivity ruling, but concurring and dissenting opinions make for interesting reads on retroactivity doctrines and policies.

As the DPIC posting notes, "Hitchcock's case was closely watched because the Florida courts had frozen the briefing schedules for 77 similarly situated death-row prisoners who also were arguing that Hurst should be enforced in their cases." I suspect most, if not all, of these prisoners will not be seeking certiorari to the US Supreme Court, but I would be surprised if SCOTUS takes up any of their cases.

August 12, 2017 in Apprendi / Blakely Retroactivity , Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, August 11, 2017

Lamenting the role of prosecutors in continued pursuit of juve LWOP sentences

This New York Times op-ed by Rashad Robinson zeroes in on the role of prosecutors in the continuance of juve LWOP sentences in the wake of Graham and Miller.  The piece is headlined "No Child Deserves a Life Sentence. But Try Telling Prosecutors That." Here are excerpts:

In 2012, the Supreme Court took a step toward righting a terrible wrong by banning mandatory life sentences without the possibility of parole for children. Last year, the court said that ban should apply retroactively: It told prosecutors to conduct resentencing hearings for the approximately 2,500 people who were serving life sentences for crimes they committed as adolescents. Many of them had been in prison for decades.

But if you walked into many courthouses today, you wouldn’t know that the Supreme Court had called for resentencing these juvenile offenders, the majority of them black. That’s because prosecutors are choosing to pursue life-without-parole sentences for these cases again.  Part of the problem is that the court kept the door open for overreach when it allowed prosecutors to impose a life sentence on the rare defendant who is “irreparably corrupt” and “permanently incorrigible.”

Consider Michigan, where prosecutors are denying parole or shorter sentences for 60 percent of juvenile lifers, even in cases where parole boards have recommended them. In Oakland County, northwest of Detroit, the share is a whopping 90 percent. While nearly half of all juvenile lifers are concentrated in Michigan, Pennsylvania and Louisiana, prosecutors elsewhere, like Scott Shellenberger in Baltimore County, Md., who has opposed ending such sentences for children, have also effectively thumbed their nose at the court’s ruling.

On top of this, many prosecutors are resentencing juvenile lifers to de facto life-without-parole sentences. The district attorney of Orleans Parish in Louisiana defended a “reduced” sentence for a juvenile lifer to a term that would have let him leave prison at age 101. (A Louisiana Supreme Court justice later reprimanded the district attorney for this “stunning” and “constitutionally untenable” position).

This is happening not because our prisons are full of unrepentant juvenile offenders who can never be rehabilitated, but because of a racist structure of perverse incentives that encourages prosecutors to pursue mass incarceration instead of justice.

For decades, prosecutors have sought high conviction rates and long sentences in the belief that appearing tough on crime would advance their careers. Indeed, prosecutors in any given local district or state attorney’s office, from the most junior rookie to the top elected official, tend to view their career prospects through the lens of average sentence length....

Black communities have borne the brunt of this overzealous approach, and racial disparities can be found anywhere prosecutors have control over sentences.  But in recent years, this racist incentive structure has begun to shift, as multiracial coalitions led by black Americans have elected prosecutors across the country who value safety and justice.  This is no liberal pipe dream, but it does require sustained activism and perseverance.  That’s what it took last November when voters in Chicago, Houston and other cities ousted prosecutors who were not serving their interests and elected reform-minded candidates. In those cities, community advocates and my organization, Color of Change, helped make criminal justice issues a key part of the debate.

But communities must work to hold all prosecutors accountable, even those who promise reforms.  Prosecutors are the most powerful actors in the criminal justice system; they aren’t going to start caring about the Supreme Court’s rulings on juvenile sentences and other vital reforms until voters give them a reason to.

Though there are evident racial skews in who gets subject to the most severe sentences in the US, I struggle to understand just how the political pressure and benefits that prosecutors experience from appearing tough on crime amounts to a "racist incentive structure."  Having prosecutors regularly subject to voter concerns through local elections creates what might be called a "politicized" or "majoritarian incentive structure," but I am not sure I see how the label "racist" is a sensible or helpful way to describe the traditional election process facing many local prosecutors.  I wonder if this author would likewise assert that mayors or local representatives (or other elected local officials who also can in various ways impact the operation of criminal justice systems) are subject to a "racist incentive structure" that impacts their governmental decision-making.

Because this op-ed ai part of a wave of important recent advocacy and scholarship emphasizing the importance of prosecutorial decision-making, I do not wish to make too much of my puzzlement over the assertion that local prosecutors are subject to a "racist structure of perverse incentives."  But I do wish to hear from anyone who might help me better understand what the author has in mind when referencing the "racist incentive structure" facing prosecutors.

August 11, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

"Certain Certiorari: The Digital Privacy Rights of Probationers"

The title of this post is the title of this new paper available via SSRN authored by Daniel Yeager. Here is the abstract:

In a recent oral argument, a judge on the California Court of Appeal told me they had “at least 50” pending cases on the constitutionality of probation conditions authorizing suspicionless searches of digital devices.  As counsel of record in three of the cases, I feel positioned to comment on this hot topic within criminal law.  My intention here is less to reconcile California’s cases on suspicionless searches of probationers’ digital devices than to locate them within the precedents of the United States Supreme Court, which is bound before long to pick up a case for the same purpose.

Specifically, the Court is bound to hear whether Riley v. California — its 2014 ruling excluding content found on digital devices in warrantless searches of arrestees’ grab-area — applies to probationers.  David Riley’s case arose out of his 2009 arrest by San Diego police, who had lawfully found firearms under the hood of his car.  Incident to Riley’s arrest, police found evidence of his gang membership in a search of his cell phone, which placed itself at an unsolved shooting.  Riley’s subsequent convictions were based on that evidence, which he sought without success to exclude until the Supreme Court reversed in Chief Justice Roberts’s hommage to cell phones — life-altering instruments which a “visitor from Mars might conclude were an important feature of human anatomy.”  Riley has since been cited over 3,000 times as a Fourth Amendment tract that privileges the “privacies of life” over the “often competitive enterprise of ferreting out crime.”

But what, exactly, are Riley’s implications? Is it just a technical ruling on the privacy interests only of arrestees, with no specific applicability to post-conviction phases of criminal cases?  Because the Court’s most on-point precedents — one involving a probationer (United States v. Knights), the other a parolee (Samson v. California) — indicate no stance on Riley’s applicability beyond the arrest context, California courts improvidently consider those precedents legal non-events.  One way or another, the Court will inevitably settle the matter itself, almost certainly within one of the seven electronics-conditions cases now on review in the California Supreme Court.  This Essay details why and how.

August 11, 2017 in Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Thursday, August 10, 2017

A reminder of why an active death penalty system in the US now seems so unlikley

Arguably the US has never had an active death penalty system, though there were a few hundred executions each year during the first decades of the 20th Century.  In the so-called modern death penalty era since 1976, the most completed executions in a single year was 98 (in 1999); there have been fewer than 50 executions in nearly every year over the last decades, and only 20 completed executions in 2016.  (This page from the Death Penalty information Center provides these recent details.)

As I have mentioned before, I find it notable that all the new law-and-order talk coming from the Trump Administration has not really included talk of ramping up use of the death penalty.  That, in my view, is a mark of a achievement by the abolitionist movement.  Another mark is the extraordinary difficulty these seems to be in securing death sentences, as discussed in this new Injustice Today piece headlined "Even in the deep red South, death sentences are on the decline." Here is an excerpt:

Twenty years ago, a brutal murder in a red state like Mississippi would likely guarantee a death sentence for a defendant.  But as last week’s sentencing of Scotty Lakeith Street illustrates, juries in the South and across the country continue to shift away from capital punishment.  In 1997, four people in Mississippi were sentenced to death; last year, 2016, not one person was. Street was sentenced to life without parole for stabbing retired teacher Frankie Fairley to death in 2014. The jury in Street’s trial, faced with a choice between the death penalty or life in prison, couldn’t reach a unanimous verdict, and split 10–2....

Those that opted for life without parole may have been swayed by Street’s extensive history of mental illness. As reported by WLOX, jurors heard testimony from his sister that Street had “been institutionalized so much, it’s beyond my count.” Street’s lawyers also presented testimony from a mental health provider who explained that Street suffered from schizophrenia and “needed to be in a group home with a caregiver.”  Street was also reported to have displayed “bizarre behavior,” including “putting plastic bags on his head to keep his brain from leaking out and running naked in public with objects tied to his scrotum.”...

Mental illness aside, death sentences are on the decline across the country.  Last year, 30 people were sentenced to death in the U.S., while in the mid-1990s, more than 300 people received capital sentences.  That decline in popularity is reflected in Street’s case, as well as in other Mississippi capital cases.  Though the death penalty’s legality remains alive and well, juries across the country are rejecting it.

August 10, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Notable new coverage of possible notable new appointment to US Sentencing Commission

Beth Reinhard has this interesting new Wall Street Journal article headlined "Sessions Promotes Tough-On-Crime Judge for Sentencing Panel."  The subheadline of this piece reports the core story: "Attorney General urges White House to nominate judge once nicknamed ‘Hang ’Um High’ Henry Hudson to panel that issues sentencing guidelines."  And here are excerpts:

Attorney General Jeff Sessions is urging the White House to nominate a federal judge and tough-on-crime ex-prosecutor once nicknamed “Hang ’Um High” Henry Hudson to an independent, bipartisan panel that issues sentencing guidelines.  Mr. Sessions’ recommendation for one of three openings on the U.S. Sentencing Commission, confirmed by people familiar with the process, reflects the Justice Department’s broader crackdown on violent crime, including the reversal of several Obama -era policies.

The department is urging the commission to toughen sentences for certain violent criminals, drug offenders, illegal immigrant smugglers and so-called career offenders.  In its annual report to the commission, the department asked it to preserve the long, mandatory-minimum sentences that supporters say help fight crime but critics say inflate prison costs and disproportionately hurt minority communities without improving public safety.

President Donald Trump, who campaigned on a promise to “restore law and order,” has the authority but is under no requirement to fill two Republican vacancies and one Democratic spot on the seven-seat commission.

Judge Hudson, who has acknowledged his colorful nickname, was a candidate for FBI director earlier this year.  He is best known for sending pro-football quarterback Michael Vick to prison in 2007 for running a dogfighting ring and for finding unconstitutional a key provision of the Affordable Care Act in 2010.

“I’m excited about the opportunity to serve on the commission,” Judge Hudson, who serves in the U.S. District Court in Richmond, Va., said in a telephone interview Thursday. “I’d like to make sure the guidelines are fair and consider every possible factor in a case.”

Mr. Hudson would be the first new commission member tapped by Mr. Trump, who has reappointed two members previously nominated by former President Barack Obama. A White House official declined to discuss Mr. Hudson’s prospects, but said the administration is committed to filling all federal vacancies....

Mr. Hudson would be expected to shake up the low-profile but powerful panel, which has produced research on the prison population, recidivism and sentencing that advocates have cited in pressing for an overhaul of the criminal justice system.

In its most consequential decision in recent years, the commission in 2014 rolled back penalties for most federal drug offenses, allowing more than 30,000 inmates to seek reduced sentences and helping to trim the federal prison population for the first time in decades. That trend is expected to reverse under Mr. Sessions, a former U.S. attorney and senator from Alabama. After a string of major overhauls of Obama administration policies that sought to curb potential abuses by police and prosecutors Mr. Sessions is now seeking to make his mark on the sentencing commission.

“That is the place where the biggest sentencing reforms have been made in Washington, in that nothing the White House or Congress has done comes close,” said Kevin Ring, president of Families Against Mandatory Minimums, which favors lighter sentencing. “This little agency is a big deal and Sessions wants to exercise his influence, which is shaping up into a fight.”

Among Mr. Sessions’ recommendations is a proposal that the Sentencing Commission reduce the quantity of fentanyl, an opioid, that triggers a sentence of 10 to 16 months for possession with intent to sell. Stiffer penalties weren’t one of a slate of recent proposals made by the president’s task force on opioids, which included expanding treatment through the Medicaid program....

Mr. Hudson declined to comment on his own sentencing of some defendants to decadeslong mandatory-minimum sentences. “I’m anxious to hear the debate and hear everyone’s viewpoint,” he said. “I won’t come to the sentencing commission with any preconceived notions.”

In a 2007 memoir titled “Quest for Justice,” Mr. Hudson recalled that police in Arlington, Va., wore campaign buttons that said “I voted for “Hang ’Em High Henry” during his re-election campaign as a state prosecutor in the early 1980s. “I didn’t reject that nickname, nor did I solicit it,” he said Thursday. “My record as a judge speaks for itself.”

As a state prosecutor in liberal-leaning northern Virginia, Mr. Hudson shut down adult bookstores and massage parlors. That led to his chairmanship of former President Ronald Reagan’s national commission on pornography, which linked porn to violence. He was director of the U.S. Marshals Service during the 1992 deadly siege at Ruby Ridge, Idaho.

He also stirred controversy for prosecuting a mentally disabled man for the murder of a woman in 1984. David Vasquez served five years in prison before DNA and other evidence exonerated him. “I certainly wish him the best and regret what happened,” Mr. Hudson wrote in his memoir, saying he remained convinced of his involvement in the murder.  “However, I offer no apologies.”

I do not know enough about Judge Hudson's sentencing (and political) history to know if he really would be eager or able to "shake up" the US Sentencing Commission, but I do know that advocacy by the US Justice Department always has a big influence on the USSC and that influence is likely only to grow if (and when?) the USSC is populated by Commissioners recommended by the Attorney General.  In recent years under the direction of Judge Patti Saris, who serves as USSC Chair from 2010 to 2016, there seemed to be a concerted effort by the Commission to act only via consensus. If Acting Chair Judge Pryor continues that ethos, it would be hard for a single USSC member to radically reverse the direction of USSC activity (though a single member could be able to block initiatives favored by many other colleagues). This article is written in a way that makes me think Judge Hudson will definitely be nominated to the USSC position, and it will be interesting to see who else might be (soon?) emerging as names for other open USSC spots.

Appropriately, this WSJ article reference the US DOJ's recent letter to the USSC about guideline amendment priorities, which the USSC has made available here.  Unsurprisingly, this letter starts by stressing the crime concerns that have been emphasized by AG Sessions in recent months.   The article fails to note another way AG Sessions can and has exercised some influence, namely through the Justice Department's "ex officio" position on the USSC.  As the end of the DOJ letter reveals (and as the USSC's own website reveals here), AG Sessions has recent put Zachary Bolitho in the role of DOJ's ex officio member of the USSC, whom I believe shares a lot of the "tough-on-crime" perspectives of his long-time boss Steve Cook.   (Zac just happens to be an OSU Law grad and was an award-winning law professor at Campbell Law before his recent re-appointment to DOJ, so I know and greatly respect Zac personally and professionally.) 

August 10, 2017 in Who Sentences? | Permalink | Comments (3)

Making a pitch for the Reverse Mass Incarceration Act of 2017

The Hill has this new commentary authored by former Representative Donna Edwards under the headline "What ever happened to mass incarceration reform?". The piece makes a pitch for the Reverse Mass Incarceration Act, and here are excerpts:

Though it feels like eons ago, the summer of 2016 promised to be one of bipartisan efforts to tackle the issue of mass incarceration. Unfortunately, the summer for criminal justice reform dissolved without fanfare into the craziness of the 2016 election. And, with the confirmation of Attorney General Jeff Sessions, who ushered in a 1980’s throw-back Department of Justice directive on low-level drug offenses, it remains unclear whether there might be a return to a bipartisan approach to criminal justice reform in the 115th Congress.

Nonetheless, a promising alternative strategy to reverse mass incarceration seems to have emerged. In the lead once again is Sen. Cory Booker of New Jersey, joined by former prosecutor, Sen. Richard Blumenthal of Connecticut, both Democrats. In the Reverse Mass Incarceration Act of 2017 (RMIA), the senators apply the lessons learned from the failed approaches of the 1990’s to lower crime and lower incarceration. The bill was modeled off of a Brennan Center proposal of the same name.

When the Violent Crime Control and Law Enforcement Act of 1994 (1994 Crime Bill) passed, a prescient few predicted the extreme escalation of incarceration in the nation’s prisons, a trend that likely began in the two decades before the 1994 law.  According to a recent Brennan Center analysis, even as crime declined by 10 percent from 1991-1994, prison populations exploded pre-1994 by 400 percent and doubled in the decade following the law’s passage.  With today’s well-documented growth in state and federal prison population, most people, including President Bill Clinton, accept that the 1994 incentives he championed were a mistake, rewarding states to build and fill more prisons....

A disproportionate number of people of color fill federal and state prisons. According to The Sentencing Project, more women than ever are behind bars and 60 percent of them have children at home.  In the last three decades incarceration rates for women have outpaced men by 50 percent, a 700 percent rate of growth since 1980.  And, while incarceration rates for African-American women have declined since 2000, twice as many African-American women as white women are incarcerated.  Incarceration rates for white and Hispanic women have continued to increase over the same period, by 56 percent and 7 percent, respectively.

In recognizing the creativity and diversity of states, as well as the overwhelming number of persons incarcerated under their jurisdiction, the RMIA provides incentivizes to states to reduce their incarceration rates.  Rather than mandate states to reduce incarceration, the Reverse Mass Incarceration Act of 2017 would instead enable states that achieve a 7 percent reduction in incarceration rates over 3 years without a significant increase in crime to access a $20 billion grant program.

Unlike the so-called “tough on crime” approaches of the 1990’s, RMIA would support evidence-based programs that reduce incarceration and crime.  Perhaps one of the chief benefits of this approach is behavior changes that occur throughout the system, from the prosecutors and sentencing judges, to the social service providers, to policy makers. These positive incentives can have nationwide impact to reduce incarcerated populations, providing the moral, social and fiscal incentives to help states reverse incarceration.

States are encouraged to be creative and to find solutions that best fit their state.  Eligible states might support ideas like drug treatment, education, job training, diversion or re-entry programs. Some states are engaging in these strategies already, and they and others should be encouraged to do more. The good news is that within the last decade, 27 states have decreased both crime and imprisonment, so there is a path forward....

While Congress may be deeply engaged in the Russia election-meddling investigation, this may be just the time to revive criminal justice reform. The Reverse Mass Incarceration Act of 2017 is a simple and straightforward approach to federal lawmaking, incentivizing good behavior — helping states to do the right thing to curb incarceration and keep communities safe. It’s an approach that’s ripe for bipartisanship.

August 10, 2017 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Wednesday, August 09, 2017

Should and will SCOTUS take up constitutional challenge to Minnesota's sex offender confinement program?

The question in the title of this post is prompted by this effective Minnesota Lawyer article headlined "SCOTUS to mull accepting sex offender lawsuit."  The article reviews a cert petition that has garnered a lot of amici interest, which always increases the odds of SCOTUS interest. Here are excerpts from the start and end of the piece:

A case began in December 2011 as a pro se proceeding by patients in the Minnesota Sex Offender Program disputing the conditions including room searches, restrictive telephone and mail policies and bad food, among other things — that’s how the defendant state of Minnesota characterized it, anyway.  When the petitioners got an attorney, it got re-characterized as a matter of substantive due process.

It’s now pending at the United States Supreme Court, where the justices will consider the patients’ petition for certiorari.  The briefs are all in now — one from the state, two from petitioners and four from amicus curiae supporting the petitioners.

The constitutional issue presented to the Supreme Court is the standard of review that should apply to substantive due process claims brought by the patients. Strict scrutiny, the highest standard, as employed by Judge Donovan Frank?  Or simply a reasonable relation standard, as used by the 8th U.S. Circuit Court of Appeals? And must one’s conscience be shocked by the actions of the respondents, and if so, at what stage of the review?

As the petitioners’ attorney, Dan Gustafson, sees it, the nub of the problem is that once a person is committed, he or she is labeled dangerous and loses the fundamental right to liberty effectively forever under the state system. The state has failed to enact a procedure to make sure that people are able to be released, Gustafson said. The state does have a statutory reduction in custody scheme in place, but it shifts the burden of proof to the patient and it has never resulted in a release until this lawsuit was filed. “We’ve demonstrated that it hasn’t worked for the last 25 years,” Gustafson said....

Four amicus curiae briefs from a spectrum of philosophical points of view have been submitted by friends of the court in Karsjens, et al. v. Emily Johnson Piper, et al. But they all want the Supreme Court to reverse the 8th Circuit, which didn’t have a problem with the program, which had been found unconstitutional by Judge Donovan Frank.

A group of 26 professors of law or related subjects has submitted a brief written by Mitchell Hamline Professor Eric Janus and Minneapolis attorney Richard D. Snyder. The fatal flaw in the MSOP program is that no one gets out, Janus said. “The core of the case is that the state set up what it said was going to be a civil commitment program. And the core definition of that is people get out, and that’s exactly what is missing in the Minnesota program.  It’s not just missing here or there, it’s systemically missing,” Janus wrote.

The Cato Institute, known as a libertarian think tank and an advocate for limited government, is another friend of the court.  Its brief argues, “Sex-offender laws have bored a hole in the nation’s constitutional fabric.  As state and federal governments expand that hole — threatening to swallow other rights and other’s rights — this Court should intervene.”

Also weighing in are criminology scholars and the Fair Punishment Project of Harvard Law School, as well as the Association for the Treatment of Sexual Abusers. The Fair Punishment Project writes that the commitment statute is a punitive scheme that has responded excessively to “moral panic.”  The Association for the Treatment of Sexual Abusers promotes sex offender research and treatment.  It argues that granting review is necessary to take account of important advances in the empirical study of rates of recidivism among sexual offenders; effective assessment treatment, and management of sexual offenders; and factors that influence the effectiveness of treatment interventions.

A few prior related posts:

August 9, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

"White-Collar Showdown"

The title of this post is the title of this essay recently posted to SSRN and authored by Mihailis Evangelos Diamantis. Here is the abstract:

The Sentencing Commission and the judiciary do not see eye to eye when it comes to punishing white-collar fraudsters.  Recent survey data collected by Judge Bennett and his co-authors confirms that judges prefer to sentence fraudsters at or below the minimum of the Sentencing Guidelines range.  This article asks whether that data should give the Sentencing Commission pause.  The survey results might just substantiate the Sentencing Commission's worry that judges are prone to cognitive bias in favor of white-collar defendants, with whom they often overlap demographically.

After suggesting that judges have no particular insight into the factors relevant to fraud sentencing, the article assesses the matter from criminal theory first principles: deterrence, rehabilitation, and retribution. It concludes — contrary to the apparent views of most judges and many white-collar criminal law scholars — that we should not be so quick to dismiss the guidelines as too harsh.

August 9, 2017 in Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, August 08, 2017

Too bad AG Sessions is not trying to take prison populations back to the 1980s or even the 1950s

Fe26824f81_the-wayback-machineIt has become popular to lament the various actions of Attorney General Sessions by saying he is taking us back to the 1980s.  Here is a smattering of critical commentary in this vein, the latest of which was published a few days ago in Reason:

Today, though, this Crime Report piece details a claim that AG Sessions has his wayback machine set even longer ago.  The piece is headlined "Sessions Takes DOJ ‘Back to the Fifties,’ Says New John Jay President," and here is how it gets started:

Karol Mason, the new president of John Jay College of Criminal Justice, envisions expanding the school’s role so that it leads the national conversation on innovations in the courts, corrections and policing now that, she says, the U.S. Department of Justice has essentially bowed out, reports The Chief Leader in New York City.

Charging that U.S. Attorney General Jeff Sessions is moving the clock back on justice issues by decades — “I’d say to the fifties” — John Jay is well-positioned to step up, said Mason, who served as an Assistant Attorney General under President Obama.

Without commenting on which decade AG Sessions wants us to be living in, I just thought all this critical discussion of earlier eras provided an appropriate moment to remind everyone how much less the US relied on imprisonment in the 1950s and even the 1980s.

As detailed in this BJS document, back in 1955 the national prison population was just over 185,000, with about 20,000 in federal prison and the other 165,000 in state prisons. In 1985, the national prison population was just over 465,000, with nearly 30,000 in federal prison and the other 435,000 in state prisons.  And as this BJS report detailed, at the end of 2015, the national prison population was just over 1,525,000, with nearly 200,000 in federal prison and the other 1,325,000 in state prisons.  (There has been significant growth in the US population over the last 60 years, so the US incarceration rate has not increased quite as much as total incarceration levels.)  Of course, the Justice Department policies and practices along with changes in state policies and practices in the 1980s played a significant role in the increase in prison populations, and that is the foundation for the considerable hand-wringing about a return to 1980s-era criminal justice thinking.  

August 8, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Horrible abuse and female defendant's demeanor lead Arizona jury to send child murderer to death row

Because so relatively few women are sent to death row, it is always noteworthy when a female defendant is sentenced to death.  And I found this local article from Arizona, headlined "Jurors: Sammantha Allen lacked remorse," a particularly notable account of what prompted an Arizona jury to vote to send a woman to death row yesterday for her role in the killing of a child.  Here are details:

Sammantha Allen dropped her head and burst into tears moments after jurors announced their verdict in the penalty phase of the woman's trial: death. "She didn't care what happened to this child," said Amanda Keagh, a juror in the trial. "It was all about what was going to happen to her."

This marks the end of one more chapter in the horrific 2011 murder of 10-year-old Ame Deal, whose lifeless body was found locked inside a plastic footlocker left out in the blazing Arizona heat. Police said the girl was forced into the box as punishment for stealing a popsicle. Allen, along with her husband John, were charged in the girl's murder. The woman was convicted of first-degree murder on June 26 and arguments over whether she would be sentenced to death lasted several weeks.

Jurors outside the courtroom said they maintained an open mind throughout the penalty phase of the trial, but ultimately pointed to Allen's demeanor inside the courtroom as a major factor in their decision. "So I think that was a pivotal moment for me," Keagh said. "I was waiting for something from her. That was her chance to plead for her life and it just fell short."

The defense team argued Allen's actions were a result of a dysfunctional childhood and family life that was heavily influenced by Allen's mother and grandmother. Her attorney argued the control continued into Allen's adulthood including how she treated Ame.

"We just felt at some point she was not as passive of a person as we previously thought," said Chuck Pritchett, another juror....

The jurors said the entire process was difficult, explaining some of the details and testimony will stay with them forever. "The hardest thing for all of us was the victim (Ame) and learning about what her life really entailed," said Ann Opseth, a juror. "The years of abuse that she suffered."

This additional local article about the case provides more details about the crime and context for the sentencing. As is often true for all sorts of sentencings, both capital and non-capital, the defendant's character and history may have mattered even more than her crime.

August 8, 2017 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, August 07, 2017

Effective reminder of plea realities and over-criminalization in modern US criminal justice systems

Emily Yoffe has this lengthy new Atlantic article that effectively reviews what most modern criminal justice practitioners know well about the criminal justice system: plea practices are the heart of criminal case processing. The piece is headlined "Innocence Is Irrelevant: This is the age of the plea bargain—and millions of Americans are suffering the consequences." I recommend the piece in full, and here are excerpts:

This is the age of the plea bargain. Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—some 94 percent at the state level, and some 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, and they reveal a stark new truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy acknowledged this reality in 2012, writing for the majority in Missouri v. Frye, a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Quoting a law-review article, Kennedy wrote, “ ‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ”...

Because of plea bargains, the system can quickly handle the criminal cases of millions of Americans each year, involving everything from petty violations to violent crimes. But plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose “crime” may primarily be a matter of suffering from poverty, mental illness, or addiction. And plea bargains are intrinsically tied up with race, of course, especially in our era of mass incarceration.

As prosecutors have accumulated power in recent decades, judges and public defenders have lost it. To induce defendants to plead, prosecutors often threaten “the trial penalty”: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted. About 80 percent of defendants are eligible for court-appointed attorneys, including overworked public defenders who don’t have the time or resources to even consider bringing more than a tiny fraction of these cases to trial. The result, one frustrated Missouri public defender complained a decade ago, is a style of defense that is nothing more than “meet ’em and greet ’em and plead ’em.”...

Thanks in part to plea bargains, millions of Americans have a criminal record; in 2011, the National Employment Law Project estimated that figure at 65 million. It is a mark that can carry lifetime consequences for education, employment, and housing. Having a record, even for a violation that is trivial or specious, means a person can face tougher charges and punishment if he or she again encounters the criminal-justice system. Plea bargaining has become so coercive that many innocent people feel they have no option but to plead guilty. “Our system makes it a rational choice to plead guilty to something you didn’t do,” Maddy deLone, the executive director of the Innocence Project, told me....

“No one sets out to create bloated criminal codes,” I was told by David Carroll, the executive director of the Sixth Amendment Center, which protects the right to counsel. “But once they exist, vast resources are spent to justify them.” In response to the crime wave, the United States significantly expanded police forces to catch criminals, prosecutor’s offices to charge them, and the correctional system to incarcerate them. Legislators have added so many acts to criminal codes that in 2013, Neil Gorsuch—now on the Supreme Court, but then an appellate judge—publicly raised concerns. In a speech sponsored by the Federalist Society, he asked, “What happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”...

No amount of tinkering, however, will matter much unless Americans stop trying to use the criminal-justice system as a tool for managing social ills. “Why are these cases being pumped into the system in the first place?,” [Professor Stephanos] Bibas said to me. He’s not alone in asking. Across the country, in red states and blue states, reformist state and district attorneys have recently been elected on platforms of rolling back harsh sentencing, reducing the enforcement of marijuana laws, and knocking down crimes from felonies to misdemeanors. And change is happening. Last year, for example, the New York City Council passed legislation that made offenses such as public drinking and urination civil rather than criminal violations, and thus subject largely to tickets and fines.

Paring back our criminal code and eliminating many mandatory minimum sentences will be crucial to reform. In the long-running War on Drugs, the government has regularly prosecuted people for possessing small amounts of illegal substances, or for merely possessing drug paraphernalia. Often, on the basis of no evidence beyond a police officer’s assertion, officials have charged and prosecuted defendants for the more serious crime of “intent to sell.” But during Prohibition, when the manufacture, transport, and sale of alcohol were federal crimes, Americans were not arrested by the millions and incarcerated for drinking. And they certainly didn’t plead guilty to possessing martini glasses and other drinking paraphernalia....

The United States is experiencing a criminal-justice crisis, just not the one the Trump administration talks about. By accepting the criminalization of everything, the bloat of the criminal-justice system, and the rise of the plea bargain, the country has guaranteed that millions of citizens will not have a fair shot at leading ordinary lives.

August 7, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Sunday, August 06, 2017

You be the federal judge: what sentence for "Pharma Bro" after his fraud convictions?

As regular readers know, I enjoy following up news of a high-profile conviction by asking what sentence readers think fitting for the high-profile convicted offender.  As detailed in this MSNBC report, headlined "'Pharma bro' Martin Shkreli found guilty of 3 of 8 charges, including securities fraud," the high-profile offender this time around is a notorious pharmaceutical executive. Here are the basics about his crime:

A federal jury Friday found notorious "Pharma bro" Martin Shkreli guilty of three counts of securities fraud — but acquitted him of five other criminal counts related to hedge funds investors and a drug company he founded. The split verdict in Shkreli's trial came at about 2:37 p.m. on the fifth day of jury deliberations, after a more-than-month-long trial in Brooklyn, New York, federal court.

At that trial, prosecutors claimed Shkreli had defrauded multiple investors in his two hedge funds out of millions of dollars, only to repay them with stock and cash that he looted from a the biotech company he created, Retrophin. While the seven-woman, five-man jury clearly accepted some of the prosecution's evidence, it rejected other parts of their argument.

The mixed decision perplexed many in the courtroom, including the 34-year-old Shkreli, who first drew widespread public scorn in 2015 for raising the price of a lifesaving drug by more than 5,000 percent. He looked over quizzically at one of this lawyers, Marc Agnifilo, each of the three times that Judge Kiyo Matsumoto interrupted a set of "not guilty" announcements she was reading off of the jury's verdict sheet with a "guilty" one.

A juror who was quoted anonymously by the New York Times, said "In some of the counts at least we couldn't find that he intentionally stole from them and the reasoning was to hurt them."...

Shkreli, who remains free on $5 million bail, faces a maximum sentence of 20 years in prison. But he is sure to receive a far-less-severe punishment than that, given his lack of a criminal record, and other factors.

"I think we are delighted in many ways," said Shkreli said outside of the courthouse. "This was a witch hunt of epic proportions and maybe they found one or two broomsticks but at the end of the day we've been acquitted of the most important charges in this case." He almost immediately afterward used his new Twitter account, @samthemanTP, to comment on the outcome of the case, and also started a livestream on YouTube from his apartment.

Shkreli's lead lawyer, Benjamin Brafman, told a group of journalists, "I hope tomorrow's reports inform the public that Martin Shkreli went to trial and despite being Martin Shkreli he won more than he lost."

But acting United States Attorney Bridget Rohde, whose office prosecuted Shkreli, said, "We're gratified as we stand here today at the jury's verdict."

"Justice has been served," said Rohde, whose prosecution team next plans to try Shkreli's co-defendant and former business lawyer Evan Greebel this fall.

Brafman said the amount of money Shkreli could be made to surrender would have been much higher if he had been found guilty of ripping off Retrophin, to repay swindled hedge-fund investors. But Shkreli was acquitted of that charge, conspiracy to commit wire fraud, which Brafman referred to as "the money count."

Brafman said that because the jury found that any loss suffered by Retrophin was either low, or non-existent, as the defense claims, the sentence recommended for Shkreli will be light. "I think we would love to have a complete sweep but five out of eight counts, not guilty, is in our view a very good verdict especially since count seven, the main count that impacts on the loss in this case, that was the most important count in the case from our perspective," Brafman said. "And for Martin to be found not guilty of that count is a very, very good result as far as we are concerned," Brafman said....

The charges against Shkreli were unrelated to his decision, while CEO of Turing Pharmaceuticals, to raise the price of the drug Daraprim from $13.50 per pill to $750 per pill in 2015. The price increase came as he was being investigated for the case that led to his trial.

Prosecutors said a mountain of testimony and evidence at that trial showed that Shkreli duped multiple investors into putting millions of dollars into two hedge funds he ran, MSMB Capital and MSMB Healthcare, by falsely claiming to have an excellent record of running such funds, and by falsely stating his investment strategy had a low level of risk.

After getting their money, prosecutor said, Shkreli quickly lost much of it, and also used some of it to capitalize his infant company Retrophin even as he continued sending out financial statements to investors claiming positive returns. And when investors asked for their money to be redeemed to them in cash, Shkreli brushed them off for months or more, inventing excuses and suggesting alternative ways to pay them back, according to the prosecution's case.

Two of the securities fraud counts for which Shkreli was convicted related to those hedge funds. Prosecutors said that he then improperly used Retrophin stock and cash from the young firm to pay off the the funds' investors. While Shkreli was acquitted of on Retrophin-related count, he was convicted of conspiracy to commit securities fraud in connection with Retrophin.

This Reuters article, headlined "Shkreli sentence turns on antics, investor impact of crime," highlights that this case may be the relatively rare white-collar case in which the calculated guideline range is rather low but personal factors may prompt a judge to want to sentence above the range:

Benjamin Brafman, Shkreli's lawyer, said because the hedge fund investors ultimately profited, his client's sentencing range should be zero to six months, which allows for probation in lieu of prison.

Brafman in an email on Saturday acknowledged Shkreli's social media habits are "not helpful" and hoped the court would focus on the facts of the case and the law. "My hope is that the court will ignore the childish and compulsive tweeting of Mr. Shkreli that‎ is his right to do," Brafman said.

Shkreli could benefit from steps he took to repay investors before he caught the attention of authorities. "As long as the investors were paid back before he knew there was a criminal investigation that is subtracted from any loss figure," said Sarah Walters, a lawyer at the law firm McDermott Will & Emery.

Prosecutors are expected to argue the intended losses of the fraud were much higher, noting the millions of dollars that investors lost before they were repaid, according to the law enforcement source, who requested anonymity to discuss the case. That could allow for a lengthier sentence, as under federal sentencing guidelines, judges are to consider the actual or intended loss, whichever is higher.

Legal experts also said prosecutors could argue for a lengthier sentence by asking U.S. District Judge Kiyo Matsumoto to factor in the conduct involving Retrophin despite the acquittals. While juries must find wrongdoing under the high standard of proof beyond a reasonable doubt, judges at sentencing may consider facts proven by the lower standard of preponderance of the evidence.

The guidelines are advisory only, and Matsumoto can factor in other issues, including Shkreli's trash-talking habits. "In this case, I imagine they will focus more on that he is a liar, he disparages people, he is a disruptive force and he has a complete lack of remorse," said John Zach, a lawyer at Boies, Schiller & Flexner.

August 6, 2017 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6)

Friday, August 04, 2017

Kentucky judge rules death penalty unconstitutional for all offenders under 21 years old

As reported in this local article, headlined "Fayette judge rules death penalty unconstitutional for man under 21," a Kentucky judge reached a significant constitutional conclusion this week. Here are the basic details:

The death penalty is unconstitutional for a defendant who was younger than 21 at the time of his offense, Fayette Circuit Judge Ernesto Scorsone ruled earlier this week. Scorsone issued an order declaring the death penalty unconstitutional in the case of 21-year-old Travis Bredhold. He was 18 years and five months old when he was charged in 2013 with murder and robbery in the fatal shooting of Marathon gas station attendant Mukeshbhai Patel.

Fayette County Commonwealth’s Attorney Lou Anna Red Corn said in a statement Friday that she will appeal Scorsone’s order “because it is contrary to the laws of Kentucky and the laws of the United States.” Red Corn said two other cases eligible for the death penalty and pending before Scorsone will be affected by his ruling.... Red Corn’s statement said the judge’s ruling “will result in delays” in all three cases.

In a 2005 decision, the U.S. Supreme Court ruled that the execution of people who were younger than 18 at the time of their crimes violated the federal constitutional guarantee against cruel and unusual punishments.

Bredhold’s defense team asked Scorsone to extend that exclusion to people 21 and younger. Prosecutors argued that the death penalty is constitutional and argued that there is no national consensus with respect to offenders under 21.

Scorsone disagreed. “Contrary to the commonwealth’s assertion, it appears there is a very clear national consensus trending toward restricting the death penalty, especially in cases where defendants are 18 to 21 years of age,” Scorsone wrote.

The judge also cited research showing that 18- to 21-year-olds are less culpable for the same reasons that the U.S. Supreme Court found teens under 18 to be. The age group lacks maturity to control their impulses and fully consider risks, making them unlikely to be deterred by knowledge of likelihood and severity of punishment, the judge wrote. In addition, they are susceptible to peer pressure and emotional influence. And their character is not yet well formed, “meaning that they have a much better chance at rehabilitation than do adults,” the judge wrote.

“Given the national trend toward restricting the use of the death penalty for young offenders, and given the recent studies by the scientific community, the death penalty would be an unconstitutionally disproportionate punishment for crimes committed by individuals under 21 years of age,” Scorsone wrote.

An individual evaluation that Bredhold “operates at a level at least four years below that of his peers” further supports the exclusion of the death penalty for Bredhold, the judge concluded.

I cannot yet find a copy of Judge Scorsone's opinion, but I am looking forward to finding it and seeing what he cites to support the assertion that there is a national trend toward restricting application of the death penalty "especially in cases where defendants are 18 to 21 years of age.” I know a lot of death penalty opponents are eager to see Roper extended to older offenders, but I am not aware of any legislation in any state that has precluded those age 18 or older from the reach of the death penalty.

UPDATE:  I just found the full opinion in this case via the Death Penalty Information Center's website, and the court relies heavily on the overall decline of executions and death sentences in recent years to make the "objective" case that application of the death penalty to defendants aged 18 to 21 are in decline. 

August 4, 2017 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)

Split DC Circuit finds unconstitutionally excessive 30-year mandatory minimum sentences for Blackwater contractors who killed Iraqis

A huge new DC Circuit opinion released today in a high-profile criminal case include a significant Eighth Amendment ruling.  The full 100+-page opinion in US v. Slatten, No. 15-3078 (DC Cir. Aug. 4, 2017) (available here), gets started this way:

Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard (“defendants”) were contractors with Blackwater Worldwide Security ("Blackwater"), which in 2007 was providing security services to the United States State Department in Iraq. As a result of Baghdad shootings that injured or killed at least 31 Iraqi civilians, Slough, Liberty and Heard were convicted by a jury of voluntary manslaughter, attempted manslaughter and using and discharging a firearm in relation to a crime of violence (or aiding-and-abetting the commission of those crimes); Slatten was convicted of first-degree murder. They now challenge their convictions on jurisdictional, procedural and several substantive grounds....

The Court concludes ...that the district court abused its discretion in denying Slatten’s motion to sever his trial from that of his co-defendants and therefore vacates his conviction and remands for a new trial. Moreover, the Court concludes that imposition of the mandatory thirty-year minimum under 18 U.S.C. § 924(c), as applied here, violates the Eighth Amendment prohibition against cruel and unusual punishment, a holding from which Judge Rogers dissents. The Court therefore remands for the resentencing of Slough, Liberty and Heard.

The majority's Eighth Amendment analysis is really interesting, running more than 30 pages and covering lots of ground. And it wraps up this way:

The sentences are cruel in that they impose a 30-year sentence based on the fact that private security contractors in a war zone were armed with government-issued automatic rifles and explosives. They are unusual because they apply Section 924(c) in a manner it has never been applied before to a situation which Congress never contemplated. We again emphasize these defendants can and should be held accountable for the death and destruction they unleashed on the innocent Iraqi civilians who were harmed by their actions. But instead of using the sledgehammer of a mandatory 30-year sentence, the sentencing court should instead use more nuanced tools to impose sentences proportionally tailored to the culpability of each defendant.

Judge Rogers' dissent from this conclusion is also really interesting, and it concludes this way:

Although it is possible to imagine circumstances in which a thirty-year minimum sentence for a private security guard working in a war zone would approach the outer bounds of constitutionality under the Eighth Amendment, this is not that case.  The jury rejected these defendants’ claim that they fired in self-defense, and far more of their fellow security guards chose not to fire their weapons at all that day.  Yet as my colleagues apparently see it, Congress should have included an exception for all such military contractor employees, or, rather, it would have included such an exception if it had only considered the issue.  See Op. 72–74.  Perhaps so, but that is not the question before us. The district court judge made an individualized assessment of an appropriate sentencing package for each of these defendants, and the result is not disproportionate to the defendants’ crimes, let alone grossly, unconstitutionally disproportionate.

I think it possible (but not at all certain) that the feds will seek cert review of this Eighth Amendment decision, and I think it also possible (but not at all certain) that SCOTUS might be interested in this issue in this setting.

August 4, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Sizable set of Senators inquire about BOP's continued failure to use compassionate release

As reported in this article from The Hill, headlined "Senators push federal prisons to expand compassionate release," a notable group of legislators sent a notable letter yesterday concerning the work of the federal Bureau of Prisons. Here are the details:

A bipartisan group of senators are calling on federal prison officials to follow through on recommendations to expand the use of compassionate release.

In a letter Thursday, Sen. Brian Schatz (D-Hawaii) and 11 other senators asked acting Federal Bureau of Prisons (BOP) Director Thomas Kane and Deputy Attorney General Rod Rosenstein to take a serious look at a prison bureau program that allows federally incarcerated people to appeal for early release if they present certain “extraordinary and compelling” reasons.

The lawmakers, who include Sens. Mike Lee (R-Utah), Elizabeth Warren (D-Mass.), John Cornyn (R-Texas) and Cory Booker (D-N.J.), pointed to a 2013 report in which the Department of Justice inspector general recommended expanding the compassionate release program to deal with the increasingly large number of aging inmates with serious medical conditions.

Though the senators said the BOP adopted new policies following that report to expand its criteria, none of the 203 elderly inmates who applied under medical reasons in the 13 months following the report were approved.  Last year, the U.S. Sentencing Commission expanded and clarified the criteria for age and family circumstances that make an inmate eligible for compassionate release and encouraged the BOP to file a motion for release if an inmate meets the new policy.

In light of these changes, the senators asked Kane and Rosenstein how many compassionate release requests received in the last three years have been granted and denied, how many petitioners have died waiting for a response, what steps the bureau has taken to follow the commission’s directives and what action the bureau can take to increase its use of compassionate release.

Sens. Sheldon Whitehouse (D-R.I.), Jeff Merkley (D-Ore.), Thom Tillis (R-N.C.), Ed Markey (D-Mass.), Kirsten Gillibrand (D-N.Y.), Dick Durbin (D-Ill.) and Tammy Duckworth (D-Ill.) also signed the letter.

A few prior related posts:

August 4, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (16)

Thursday, August 03, 2017

Mississippi opioid task force apparently calling for extreme sentences for heroin dealers

In this post yesterday, I noted that recent reports and activity emerging from the Trump Administration concerning the opioid epidemic did not include any calls for new or increased federal sentences as part of the criminal justice response.  But this local article from Mississippi, headlined "Task force: Up to life sentences for heroin, fentanyl dealers," highlights that some state actors are talking about some remarkable sentencing reactions to the crisis.  Here are the basic details:

The Governor’s Opioid and Heroin Study Task Force is recommending some of the toughest measures in the U.S. to fight an epidemic that is now killing more Americans in a single year than U.S. service members who died during the entire Vietnam War...

To battle the increased problem of heroin and fentanyl overdoses, the task force is recommending tough punishment for drug dealers who sell heroin or fentanyl — an enhanced sentence of 40 years to life.

I cannot yet find a copy of this state task force's full recommendations, so I am not sure that it is really calling for all dealers of heroin or fentanyl to receive sentences of at least 40 years in prison.  But, whatever the particulars, I am sure that this task force is demonstrating how easy it is to advocate for increased sentences as one part of a response to our nation's latest drug epidemic.

UPDATE: A helpful comment below provides this link to the Mississippi Task Force recommendations.  The first recommendation in the law enforcement section simply urges "increased punishment" for heroin dealers and an "enhanced sentence of 40 year to life" for all who sell or transfer any controlled substance "that result in death (or serious bodily injury)."  So, intriguingly, the opioid epidemic has prompted a recommendation in Mississippi for a mandatory minimum 40-year prison term for any and every person who shares a drug that results in serious injury.

Though I am not sure how stringently Mississippi law approaches causation and serious bodily injury, I am sure this provision could be interpreted in expansive ways that could expose many drug-involved individuals to a mandatory minimum 40-year prison term. Indeed, were this recommendation to become law, I could imagine an aggressive prosecutor considering applying this provision to persons who passed around marijuana or ecstasy at a party if a partygoer thereafter badly crashed his car and broke some bones on the way home from the party.

August 3, 2017 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3)

"Justice Thomas, Criminal Justice, and Originalism’s Legitimacy"

The title of this post is the title of this notable new essay authored by Judge William Pryor as part of a Yale Law Journal Forum collections of essays under the heading "Justice Thomas: Twenty-Five Years on the Supreme Court."  The essay covers lots of elements of Justice Thomas's criminal justice jurisprudence, and I recommend the piece in full.  And especially because Judge Pryor is the current Acting Chair of the US Sentencing Commission, I figure sentencing fans might find this passage from the essay interesting:

A second area where Justices Thomas and Scalia agreed on a legal rule but disagreed on how to apply it was in determining whether statutory mandatory minimum sentences violated the right to a jury trial. Both Justices agreed with the rule established in Apprendi v. New Jersey that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be proved to a jury beyond a reasonable doubt. And both voted to invalidate mandatory sentencing guidelines that required judges to find facts that would increase sentencing ranges. But the Justices disagreed about why mandatory sentencing guidelines were problematic. Justice Scalia saw the problem as permitting fact-finding to increase the ceiling of a judge’s discretion in a way that could disadvantage a defendant. Justice Thomas, on the other hand, saw the problem as changing the range of discretion, even if the sentencing ceiling remained unchanged.

This difference led the Justices to opposite positions in Alleyne, discussed above. Justice Thomas wrote for the majority that facts that trigger statutory mandatory minimum sentences must be proved to a jury because the facts “alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment.” Justice Scalia joined a dissent written by Chief Justice Roberts that viewed the application of a statutory mandatory minimum as a limit on the discretion of the judge that in no way affected the role of the jury.

As an aside, I respectfully disagree with both Justices Scalia’s and Thomas’s decisions to join in the majority opinions in Blakely and Booker, the foundational decisions underlying Alleyne. The notion that mandatory guidelines that regulate judicial discretion within a statutory range of punishment to reduce sentencing disparities somehow violates a defendant’s right to a jury trial even though it is entirely permissible for judges, in an indeterminate system, to find sentencing facts and impose punishments anywhere within a broad statutory range has never made sense to me. I side with another Yalie, Justice Samuel Alito, on that one. But accepting the logic of Blakely and Booker that the Sixth Amendment requires a jury to find all facts essential to the potential penalty, only Justice Thomas’s position in Alleyne makes sense.

August 3, 2017 in Blakely Commentary and News, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Distinct sentencing advice from family members for teen guilty of involuntary manslaughter for encouraging suicide

This local article, fully headlined "Conrad Roy’s aunt: Give Michelle Carter 20 years; Defendant’s dad wants probation," reports in the very different advice being given to a juvenile judge in Massachusetts in a high-profile case due to be sentenced today. Here are the details:

A grieving aunt of teen suicide victim Conrad Roy III is looking for a 20-year prison sentence for Michelle Carter tomorrow on the heels of her conviction in the blockbuster suicide-by-text case — but the girl’s worried dad is pleading for probation. “I believe she should be kept far away from society,” wrote Kim Bozzi, Roy’s aunt, in a statement she said she plans to read at Carter’s sentencing inside Taunton Trial Court.

“Take away the spotlight that she so desperately craves. Twenty years may seem extreme but it is still twenty more than Conrad will ever have,” Bozzi said in the written statement she gave to the Herald.

But David Carter, Michelle’s father, begged for probation and “continued counselling” in a July letter to Judge Lawrence Moniz. “She will forever live with what she has done and I know will be a better person because of it,” David Carter wrote in the signed letter, provided to the Herald. “I ask of you to invoke leniency in your decision-making process for my loving child Michelle.”...

The judge found that Carter caused the death of Roy, who killed himself in a Fairhaven Kmart parking lot in 2014 by filling his truck with carbon monoxide. Carter, 20, of Plainville, who had an almost entirely virtual relationship with Roy, goaded him into killing himself through a series of texts and calls. The Mattapoisett teen left the truck as it filled with deadly fumes, but according to testimony at Carter’s trial, she told him on the phone to “get back in.”

“I’m unsure when she decided to set her sick plan into motion or why, but when she did she did it relentlessly, it was calculated and it was planned down to a T,” Bozzi wrote in the victim-impact statement. “She preyed on his vulnerabilities, he trusted her, which in turn, cost him his life.” Bozzi, who attended every court appearance, told the Herald other family members are prepared to speak as well. She said Carter’s conviction was a relief and that “what happens next is up to God and a judge.”

Prior related post:

UPDATE:  Michelle Carter received a prison sentence of 2.5 years, but only half has to be actually served in prison as explained in this CNN article.  It starts this way:

Michelle Carter, who was convicted of involuntary manslaughter in the 2014 suicide of her boyfriend, was sentenced Thursday to a two-and-a-half-year term, with 15 months in prison and the balance suspended plus a period of supervised probation.

"This court must and has balanced between rehabilitation, the promise that rehabilitation would work and a punishment for the actions that have occurred," said Bristol County Juvenile Court Judge Lawrence Moniz.

August 3, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (14)

Wednesday, August 02, 2017

Two big new Trump Administration efforts to address the opioid epidemic ... neither of which call for new or increased sentences

This week has seen two big notable developments concerning addressing the nation's opioid epidemic coming from the Trump Administration: (1) on Monday, the Administration’s Commission on Combating Drug Addiction and the Opioid Crisis presented this interim report of policy recommendations; (2) today, Attorney General Jeff Sessions announced the formation of the Opioid Fraud and Abuse Detection Unit, which this press release describes as "a new Department of Justice pilot program to utilize data to help combat the devastating opioid crisis."

Both the Commission report and the AG Sessions' comments rolling out this new DOJ unit talk about the importance of criminal law enforcement as part of a national strategy to deal with opioid problems.  But, as I note in the title of this post, neither the Commission report nor AG Sessions calls for new or increased federal sentences as part of the criminal justice response.  Of course, federal (and state) criminal punishments for opioid and heroin offenses are already pretty severe in lots of settings.  But in prior eras, it would be common to hear politicians and others say that already tough sentencing schemes were "obviously" not tough enough when a problem persisted.  (Also, it should be recalled, the US Sentencing Commission reduced all guideline drug sentences by two levels back in 2014.  It would certainly be easy for AG Sessions to call for the heroin guidelines sentences to be restored to their pre-2014 levels.)

For those concerned about increased federal criminal prosecutions in drug cases and the potential impact on federal incarceration levels, the mere lack of a call for new or increased sentences surely will not be seen as a cause for celebration.  Nevertheless, I still think it notable and intriguing that a tougher sentencing scheme is not (yet) expressly part of the opioid agenda coming from the Trump Administration.

August 2, 2017 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

"Sentencing by Computer: Enhancing Sentencing Transparency and Predictability, and (Possibly) Bridging the Gap between Sentencing Knowledge and Practice"

The title of this post is the title of this interesting looking new article available via SSRN authored by Mirko Bagaric and Gabrielle Wolf. Here is the abstract:

Computer technology is rapidly infiltrating and changing many aspects of the law. Judicial decision-making has, however, remained largely impervious to technological developments. Sentencing is one of the most controversial, complex and dynamic legal areas.  Sentencing law is also fundamentally broken and has resulted in a mass incarceration crisis, which is the most serious sociolegal problem currently afflicting the United States.  Despite this, it is also ostensibly one of the areas of law that is most amenable to automated decisionmaking.  This is because the relevant variables that inform sentencing decisions are normally clear, especially in circumstances where an offense attracts a presumptive or fixed penalty.

In this Article, we examine the desirability of computers, rather than judges, making sentencing decisions. Some disadvantages may be associated with sentencing by computer, including the possibility that there could be less opportunity to adapt penalties to the specific facts of a case than if a judge made the decision.  However, if an algorithm is developed and applied in a clear and transparent manner, the benefits of computerized sentencing will outweigh the potential disadvantages.  Indeed, we argue that computerized sentencing has the potential to achieve superior outcomes to sentences imposed by judges.  In particular, it can lead to greater transparency, predictability and consistency in decision-making, and eliminate the subconscious bias that currently afflicts the decisions of some judges.  

Moreover, the introduction of computerized sentencing could be the catalyst for a much needed, wide-ranging reassessment of substantive sentencing law, as occurred four decades ago when the United States’ sentencing system changed from an indeterminate system to the largely prescriptive process that exists today.  A fundamental review of sentencing law would almost inevitably close the gap between sentencing knowledge and practice, thereby resulting in profound community benefits, including enhanced community safety and a reduction in the number of prisoners.

August 2, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Two effective new commentaries on mass incarceration, the drug war and local realities of criminal case processing

These two new commentaries provide effective and important reminders of various realities of our nation's criminal justice system(s):

I recommend both pieces in full. 

August 2, 2017 in Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Tuesday, August 01, 2017

"Prosecutors’ Dilemma: Will Conviction Lead to ‘Life Sentence of Deportation’?"

The title of this post is the headline of this intriguing New York Times front-page article which indirectly highlights the realities and uncertainties of prosecutorial discretion and collateral consequences.  Here are excerpts:

Now that President Trump’s hard line has made deportation a keener threat, a growing number of district attorneys are coming to the same reckoning, concluding that prosecutors should consider potential repercussions for immigrants before closing a plea deal. At the same time, cities and states are reshaping how the criminal justice system treats immigrants, hoping to hopscotch around any unintended immigration pitfalls.

These shifts may inaugurate yet another local-versus-federal conflict with the Trump administration, which is already tussling with many liberal cities over other protections for immigrants. For prosecutors, such policies are also stretching, if not bursting, the bounds of the profession. Justice is supposed to be blind to the identity of a defendant. But, the argument goes, the stakes might warrant a peek.

“There’s certainly a line of argument that says, ‘Nope, we’re not going to consider all your individual circumstances, we want to treat everybody the same,’” said Dan Satterberg, the prosecuting attorney for Seattle and a longtime Republican, who instituted an immigration-consequences policy last year and strengthened it after the presidential election. “But more and more, my eyes are open that treating people the same means that there isn’t a life sentence of deportation that might accompany that conviction.”...

But many prosecutors remain wary, hesitant to meddle in what they regard as the federal government’s business and even more reluctant to depart from what they say is a bedrock principle of the system. “There’s probably hundreds if not thousands of issues that I suppose we could take into consideration,” said Brian McIntyre, the county attorney in Cochise County, Ariz., “and when we do that, we necessarily wind up not being as fair to someone else.”... If he made accommodations for an immigrant, Mr. McIntyre said, he felt that he would also owe a citizen in similar circumstances the same option, “because is he not being, essentially, negatively impacted by his U.S. citizenry?”

A criminal record often has different stakes for an immigrant than it does for a citizen. It can mean losing a green card or being barred from citizenship. Those who lack legal status can lose any chance to gain it. Those with legal status, as well as those without, can face automatic deportation.

In many cases, the city-and-state-level changes dovetail with broader criminal justice reforms that were already underway before Mr. Trump took office. But to the administration, policies that help noncitizens duck immigration penalties are tantamount to an assault on the rule of law. “It troubles me that we’ve seen district attorneys openly brag about not charging cases appropriately under the laws of our country,” Attorney General Jeff Sessions said in April.

The local efforts to help immigrants may not always work. The Trump administration has made clear that anyone without legal status may be deported, regardless of whether they have been convicted of a crime. But reducing criminal penalties can help immigrants by keeping them out of jail, which can make it more difficult for Immigration and Customs Enforcement to find them, or by preserving their options in immigration court....

Prosecutors who take immigration status into account say this consideration will not be extended to serious or violent crimes. They argue that showing flexibility in nonviolent, minor cases will help build trust with immigrants in their communities, making them more likely to report crimes and serve as witnesses. The acting Brooklyn district attorney, Eric Gonzalez, went further than most in April, when he announced that his prosecutors would begin notifying defense lawyers about the potential immigration fallout of their clients’ cases and that he would hire two in-house immigration lawyers to consult on prosecutions.

Days later, the state’s attorney for Baltimore, Marilyn J. Mosby, said she had told her staff members to use their discretion when it came to cases with an immigration factor, considering defendants’ prior records and community ties. “There’s no set standard,” she said. “You have to base it on everything that’s in front of you.”

It is not yet clear what that will look like in Baltimore or Brooklyn. But in Santa Clara County, Calif., whose district attorney was among the first to outline an official policy, prosecutors often allow a noncitizen to plead guilty to a lesser charge in exchange for more jail time or probation. “If we’re giving something, we’re going to get something,” said the district attorney, Jeff Rosen.

California law now requires immigration consequences to be factored into criminal cases. The state has also passed a law allowing people to erase or revise old convictions if they successfully argue that they were not advised at the time that a guilty or no-contest plea would endanger their immigration status.

August 1, 2017 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Should Justice Ginsburg be accused of propagating "fake news" about the death penalty?

The somewhat tounge-and-cheek question in the title of this post is prompted by a short passage in this New York Times article by Adam Liptak discussing some recent public comments by Justice Ruth Bader Ginsburg.  Here is that passage:

Justice Ginsburg spoke at George Washington University Law School, at an event sponsored by the Washington Council of Lawyers, a bar association. Asked about the future of the death penalty in the United States, Justice Ginsburg did not mention a 2015 dissent in which she and Justice Stephen G. Breyer had called for a fresh look at the constitutionality of the practice.  But she said capital punishment may soon be extinct in any event.

“The incidence of capital punishment has gone down, down, down so that now, I think, there are only three states that actually administer the death penalty,” she said.  “We may see an end to capital punishment by attrition as there are fewer and fewer executions.”

The number of executions has indeed fallen sharply, with only 20 carried out in 2016, the smallest number in decades.  But seven states have executed condemned inmates this year, according to the Death Penalty Information Center.

In addition to 7 states completing executions in 2017, the DPIC reports here that 13 states imposed death sentences in 2016.  I certainly consider the imposition of death sentences to be another aspect of "actually administering the death penalty," and one might also note that more than 30 jurisdictions in the US have persons sitting on death row.  So, in various ways, the suggesting that only a few states still use the death penalty is really not quite right.

Moreover, and arguably ever more important for Justice Ginsburg's comments here, three states had voters in 2016 reaffirm a committment to having an operational system of capital punishment.  Initiatives votes in favor of the death penalty in Oklahoma, Nebraska and especially California all run counter to the suggestion that we may soon see "an end to capital punishment by attrition."

That all said, there is no doubt that the use and importance of the death penalty diminished considerably in recent decades, both politically and pratically.  I find particularly notable, for example, that neither Prez Trump nor AG Sessions has promoted greater us of the death penalty in their "law-and-order" rhetoric or in policy proposals.  But that reality does not lead me to expect to see the end of executions or death sentencings anytime soon. 

August 1, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)

Eighth Circuit affirms exclusion of juve who moved from Nebraska's sex offender registry

As noted in this prior post last year, a federal judge has blocked Nebraska from putting a 13-year-old boy who moved to the state from Minnesota on its public sex offender registry. Yesterday, an Eighth Circuit panel affirmed this ruling via this opinion which starts this way:

The State of Nebraska, along with the Nebraska State Patrol (NSP) and various state officials (collectively, the State), appeals the district court's grant of summary judgment to A.W. and A.W.'s guardians, John and Jane Doe, enjoining it from applying to A.W. a provision of Nebraska's Sex Offender Registration Act (SORA).  That provision, Neb. Rev. Stat. § 29-4003(1)(a)(iv), applies SORA to any person who, on or after January 1, 1997, "[e]nters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States."  We hold that this provision does not apply to appellant A.W. and, accordingly, affirm the district court.

The full panel ruling is interesting for how it applied Nebraska's sex offender registry law, but a final footnote highlights some broader constitutional questions the panel saw implicated in the case. Here are excerpts from the footnote:

We note that even if we found "sex offender" to be ambiguous, leaving us with the choice of selecting between two reasonable constructions, one requiring conviction and one not, we would be strongly inclined to affirm the district court.  We believe the application of SORA and its public notification requirement to juveniles adjudicated delinquent in other jurisdictions but not in Nebraska raises serious constitutional concerns under the rights to travel and to equal protection of the laws.  Of the events triggering application of SORA under NSP regulations -- residency, employment, carrying on a vocation, or attending school in Nebraska, 272 Neb. Admin. Code ch. 19 § 003.02 -- it is highly likely a juvenile would be subject to SORA due to residency. This raises troubling implications under the third prong of the right to travel, arising from the Privileges and Immunities and the Privileges or Immunities Clauses of the U.S. Constitution..., as well as under the Equal Protection Clause.  Further, to the extent the purpose of § 29-4003(1)(a)(iv) is to prevent migration into the state of undesirable citizens, application of SORA to A.W. under that provision may raise other constitutional concerns as well. Saenz, 526 U.S. at 503 ("The states have not now, if they ever had, any power to restrict their citizenship to any classes or persons." (quoting Slaughter-House Cases, 83 U.S. 36, 112 (1872) (Bradley, J., dissenting))). Given the choice between two reasonable constructions, we will generally avoid a construction that raises "grave and doubtful constitutional questions." Union Pac. R.R. Co. v. United States Dep't of Homeland Sec., 738 F.3d 885, 892 (8th Cir. 2013).

August 1, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Monday, July 31, 2017

"The Republican Party, Conservatives, and the Future of Capital Punishment"

The title of this post is the title of this new article authored by Ben Jones now available via SSRN. Here is the abstract:

The United States has experienced a significant decline in the death penalty during the first part of the 21st century, as death sentences, executions, public support, and states with capital punishment all have declined.  Many recent reforms banning or placing a moratorium on executions have occurred in blue states, in line with the notion that ending the death penalty is a progressive cause.  Challenging this narrative, however, is the emergence of Republican lawmakers as champions of death penalty repeal legislation in red states.  This Article puts these efforts by Republican lawmakers into historical context, and explains the conservative case against the death penalty: its incompatibility with limited government, fiscal responsibility, and promoting a culture of life.  Understanding Republican opposition to capital punishment takes on particular importance now following setbacks to efforts against the death penalty in the 2016 election.  In this environment, building support among Republicans and conservatives likely will prove critical for taking further steps toward limiting and eventually ending the death penalty in the U.S.

July 31, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (8)

AP series looks deeply at a "patchwork of justice" for juve lifers after Graham and Miller

The AP has some new in-depth reporting on juvenile LWOP sentences and resentencings in this series labeled "Locked Up For Life."   This lead article published today is headlined "AP Investigation: A patchwork of justice for juvenile lifers," and here are some excerpts from the extended piece:

Five years ago, the U.S. Supreme Court banned mandatory life without parole for juveniles in murder cases.  Last year, the court went further, saying the more than 2,000 already serving such sentences must get a chance to show their crimes did not reflect “irreparable corruption” and, if not, have some hope for freedom.

But prison gates don’t just swing open. Instead, uncertainty and opposition stirred by the new mandate have resulted in an uneven patchwork of policies as courts and lawmakers wrestle with these complicated, painful cases.  The odds of release or continued imprisonment vary from state to state, even county to county, in a pattern that can make justice seem arbitrary.

The Associated Press surveyed all 50 states to see how judges and prosecutors, lawmakers and parole boards are re-examining juvenile lifer cases. Some have resentenced and released dozens of those deemed to have rehabilitated themselves and served sufficient time.  Others have delayed review of cases, skirted the ruling on seeming technicalities or fought to keep the vast majority of their affected inmates locked up for life.

Many victims’ relatives are also battling to keep these offenders in prison.  They “already had their chance, their days in court, their due process,” says Candy Cheatham. Her father, Cole Cannon, was killed in 2003 in Alabama by Evan Miller, the 14-year-old whose no-parole sentence was the basis for the 2012 sentencing ban....

The AP’s review found very different brands of justice from place to place.  For years, officials in states with the most juvenile life cases were united in arguing that the Supreme Court’s ban on life without parole did not apply retroactively to inmates already serving such sentences. Now, states are heading in decidedly different directions....

The AP also found that while many states have taken steps to make former teen criminals eligible for parole, in practice, officials regularly deny release.  In Missouri, the parole board has turned down 20 of 23 juvenile lifers, according to the MacArthur Justice Center, which filed a federal lawsuit this year claiming the board is denying the state’s juvenile life-without-parole inmates a meaningful chance for release as required by the Supreme Court....  Maryland, meantime, has 271 juvenile lifers whose sentences have always given them a chance for release.  But no such prisoner has won parole in more than 20 years, prompting a lawsuit by the American Civil Liberties Union....

The impact of last year’s Supreme Court ruling goes far beyond the 2,000-plus offenders who faced mandatory no-parole sentences as teens.  In many states, legal challenges are being mounted on behalf of juveniles sentenced to life without parole at the discretion of a judge or jury, or those who are legally entitled to parole but serving such lengthy terms they are unlikely to ever get out.  The latter group encompasses some 7,300 inmates, according to The Sentencing Project.  The Supreme Court didn’t specifically address these cases, however, and that’s led to different outcomes.

July 31, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Sunday, July 30, 2017

Should an uptick in federal gun prosecutions garner bipartisan praise?

The question in the title of this post was my first thought upon seeing this press release from the Justice Department released Friday under the heading "Federal Gun Prosecutions Up 23 Percent After Sessions Memo."  Here is the full text of the press release:

Today, the U.S. Department of Justice announced that, following the memorandum from Attorney General Sessions to prioritize firearm prosecutions, the number of defendants charged with unlawful possession of a firearm increased nearly 23 percent in the second quarter of 2017 (2,637) from the same time period in 2016 (2,149).

“Violent crime is on the rise in many parts of this country, with 27 of our biggest 35 cities in the country coping with rising homicide rates,” said Attorney General Jeff Sessions.  “Law abiding people in some of these communities are living in fear, as they see families torn apart and young lives cut short by gangs and drug traffickers.  Following President Trump’s Executive Order to focus on reducing crime, I directed federal prosecutors to prioritize taking illegal guns off of our streets, and as a result, we are now prosecuting hundreds more firearms defendants. In the first three months since the memo went into effect, charges of unlawful possession of a gun -- mostly by previously convicted felons -- are up by 23 percent.  That sends a clear message to criminals all over this country that if you carry a gun illegally, you will be held accountable.  I am grateful to the many federal prosecutors and agents who are working hard every day to make America safe again.”

In February, immediately after the swearing-in of Attorney General Jeff Sessions, President Trump signed an Executive Order that directs the Attorney General to seek to reduce crime and to set up the Task Force on Crime Reduction and Public Safety.  The Task Force has provided Sessions with recommendations on a rolling basis.  In March, based on these recommendations, Attorney General Sessions sent a memorandum to Department of Justice prosecutors, ordering them to prioritize firearms offenses.

In the three months immediately following the Attorney General’s memo -- April, May and June -- the number of defendants charged with unlawful possession of a firearm (18 U.S.C. 922) increased by nearly 23 percent compared to those charged over the same time period in 2016.  The number of defendants charged with the crime of using a firearm in a crime of violence or drug trafficking (18 U.S.C. 924), increased by 10 percent.

Based on data from the Executive Office for United States Attorneys (EOUSA), in Fiscal Year 2016 (starting October 1), 11,656 defendants were charged with firearms offenses under 18 U.S.C. 922 or 924.  EOUSA projects that in Fiscal Year 2017, the Department is on pace to charge 12,626 defendants with these firearms crimes.  That would be the most federal firearms cases since 2005.  It would also be an increase of eight percent from Fiscal Year 2016, 20 percent from 2015, and an increase of 23 percent from 2014.

Of course, as regular readers on this blog know well, many on the political left have been critical of various efforts by AG Sessions to ramp up federal prosecutions. But much of the criticism is based on concerns about escalating the federal drug war, especially as it applies to lower-lever and nonviolent offenders. As the title of this post is meant to suggest, perhaps this latest data showing a ramp up of gun prosecutions could be met with some applause from political left given the tendency of the left to support tougher restrictions on gun possession. (Of course, some parts of the libertarian-faction of the political right has also expressed concerns about recent work by AG Sessions, and they might be more troubled by these data.)

Critically, without having more information about the "who and how" of increased federal gun prosecutions, I do not feel sufficiently informed to robustly praise or criticize these developments. But I do think it interesting and notably that the first new data being stressed by the Sessions DOJ involves a type of prosecution that could garner support from both sides of the political aisle.

July 30, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Who Sentences? | Permalink | Comments (9)

Reviewing the unique (and uniquely important?) Texas experience with criminal justice reform

This lengthy new Business Insider article, headlined "Texas is shedding its lock-'em-up image thanks to a 37-year-old tattooed lawyer and an unlikely political alliance," provides an extended account of how one significant state became a significant leader on criminal justice reform. Here is a small excerpt:

Until 2005, criminal-justice reform had been nearly impossible to pass in Texas, as was the case in many conservative states. Reformers were derided as "soft on crime" while even popular bills ran into vetoes from Republicans like Gov. Rick Perry, budget crises, and tough-on-crime district attorneys, many of whom view securing harsh sentences as a metric of success.

But with Texas's prisons bursting at the seams, legislators were faced with a choice: reduce incarceration with reforms or funnel billions into new prisons.  At the same time, a new movement emerged among conservatives, led by Marc Levin, the director of the Right on Crime campaign created by the right-leaning Texas Public Policy Foundation. Levin, an Austin-based attorney and public-policy expert, and other conservatives like him understood ideas such as addressing substance abuse with treatment rather than incarceration, and promoting parole, probation, and reentry programs, as inherent to conservative ideology, not antithetical to it.

Meanwhile, fiscal conservatives in the state had grown appalled by the taxpayer burden of funding and maintaining new prisons, while libertarians were cynical of the broad government power required to funnel vast numbers of Texans through prisons each year.  Social conservatives like Prison Fellowship, an evangelical Christian organization founded by Chuck Colson, a former Watergate-era felon, approached reform after witnessing through their prison-ministry programs how rarely inmates were given opportunities for redemption.

"You really had a point where the only thing that was standing against reform from the conservative perspective ... would just be the muscle memory of being 'tough on crime' for decades," Derek Cohen, the deputy director of Right on Crime, told Business Insider.

What propelled reform forward, however, was that those groups were able to join with liberals long clamoring for change in the Republican-controlled state.  The movement formed the Texas Smart On Crime Coalition to push their agenda in the statehouse and, while the coalition is bipartisan, that doesn't mean they agree on everything.  The movement can be thought of as a sort of Venn diagram.  Liberals, conservatives, and religious groups each have their own reform plans, and they work together on issues where there is broad agreement, while still vehemently opposing one another where values diverge.  "This shows that just because it's bipartisan doesn't mean that it's compromise," Cohen said. "We're retaining our perfect circles and just in the few places that they overlap, that’s where we're working together."

Common issues like bail reform, rehabilitation and treatment programs, and prosecuting youths through juvenile rather than adult courts are all fair game for collaboration. But issues like "mens rea reform," or requiring more proof of a defendant's culpable mental state, are more polarized. Similarly, en masse sentence reductions for drug crimes and "ban the box" initiatives — some of which impose civil or criminal penalties on employers that ask about applicants' criminal histories — remain partisan battlefields.

Cohen said the key to unlocking reforms in Texas has been that most Americans, whether conservative or liberal, just want a system that works. "They want a system that shows that that behavior is morally blameworthy ... but also that which rehabilitates," Cohen said. "There isn't this monolithic, punitive impulse in Texas or in conservatives or liberals or anywhere in the country."

July 30, 2017 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Spotlighting BOP's continued curious failure to make serious use of "compassionate release"

Mike Riggs has this notable new piece at Reason headlined "Congress Wants to Know Why the BOP Won't Let Elderly Prisoners Go Home to Die: 'Compassionate release' is an excellent tool that the BOP refuses to use." Here are excerpts:

For years, federal prisoners and their advocates have begged the Federal Bureau of Prisons (BOP) to shorten the sentences of elderly and terminally ill offenders using a provision called "compassionate release."... In 2013, the BOP Office of Inspector General encouraged the BOP to send these kinds of prisoners home. In 2016, the U.S. Sentencing Commission went so far as to expand eligibility for the program in hopes the BOP would use it more.

But the BOP has largely ignored those recommendations [and now] Congress demanded that the BOP explain why it continues to incarcerate geriatric and terminally ill prisoners who pose no threat to public safety and are unlikely to commit new crimes upon their release.

In a report accompanying the 2018 appropriations bill, Sen. Richard Shelby (R-Ala.) ordered the BOP to turn over reams of data about the compassionate release program. Including:

  • the steps BOP has taken to implement the suggestions of the BOP Office of Inspector General and the U.S. Sentencing Commission

  • a detailed explanation as to which recommendations the BOP has not adopted, and why the number of prisoners who applied for compassionate release in the last five years, as well as how many requests were granted, how many were denied, and why

  • how much time elapsed between each request and a decision from the BOP

  • the number of prisoners who died while waiting for the BOP to rule on their application for compassionate release

Only 10 percent of America's prisoners are in federal prisons, but it is an increasingly old and sick population due to the disproportionately long sentences tied to federal drug offenses. As of June 2017, BOP facilities held 34,769 prisoners over the age of 51. More than 10,000 of those prisoners are over the age of 60.

Elderly prisoners pose financial and human rights problems. "In fiscal year 2014, the BOP spent $1.1 billion on inmate medical care, an increase of almost 30 percent in 5 years," BOP Inspector General Michael E. Horowitz wrote in prepared testimony to the U.S. Sentencing Commission. "One factor that has significantly contributed to the increase in medical costs is the sustained growth of an aging inmate population."...

Shelby's letter gives the BOP 60 days from the passage of the appropriations bill to submit its data to the committee. "Elderly and sick prisoners cost taxpayers the most and threaten us the least, and there's no good reason they should stay locked up or die behind bars because bureaucrats can't or won't let them go home to their families," Kevin Ring, president of Families Against Mandatory Minimums, said in a statement. "It's time for someone to get to the bottom of why the BOP's answer is always no on compassionate release."

July 30, 2017 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Thursday, July 27, 2017

Reviewing data and lessons of recent Urban Institute report on rising prison time

German Lopez has this new Vox piece that effectively reviews the data and lessons on the recent Urban Institute big new project on long prison terms titled, "A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons." (This prior post covered that report when it was first released a few weeks ago.)  The full title of this piece captures its primary themes: "Liberals often blame mass incarceration on the war on drugs.  That’s not quite right. A new report shows that the real increase in prison sentences has come from violent offenses, not lower-level crimes."  Here are excerpts:

“Longer sentences are stacking up,” Ryan King, the lead researcher for the Urban report, told me.  “And in many states, the data suggest that they’re stacking up at a rate significant enough that it can offset reforms for the less serious offenses.”

The report includes various other findings.  It found there are vast racial disparities in the top 10 percent of prison sentences, just as there are for lower-level offenses.  The people locked up also tend to be fairly young, which robs communities — particularly black neighborhoods — of people who could grow up to be productive citizens instead of serving out disproportionately harsh sentences. It also told the stories of a few people who suffered through some of these long sentences.  You should really read the whole thing.

But I want to home in on the big finding because it shows what the traditional story about mass incarceration has gotten wrong.  Much of the attention has gone to harsh mandatory minimum sentences for drug offenses, but they seem to have had a fairly small impact on overall incarceration rates.  What seemed to change, instead, is that the system enforced longer prison sentences for some of the worst offenses — and that led to a lot more imprisonment....

To really address the problem of mass incarceration, then, it’s not enough to just focus on drug crimes; it’s also important to focus on violent offenses. It’s also not enough to just focus on the laws guiding prison sentences; it’s also necessary to look at how those laws are enforced in the real world. And addressing all of these issues will require a truly systemic effort — from addressing what the local prosecutor is doing to what laws state policymakers pass to what the president and his attorney general are asking the US Department of Justice to do.

It will be a long, arduous effort.  After years of lawmakers building up incarceration at every level of government, it will likely take years of more policymaking at every level of government to unwind what previous generations of leaders have done.  “This is a long-term project,” King of Urban said. “But we do see it as one that’s ringing a bell saying, look, we’re going to have to deal with this.”

July 27, 2017 in Data on sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Wednesday, July 26, 2017

Timely and puzzling statement from AG Sessions on work of DOJ Task Force on Crime Reduction and Public Safety

While he has been getting bashed repeatedly by Prez Trump in recent days, Attorney General Sessions has been noticably quiet.  This afternoon, however, the Justice Department released this press release under the heading "Statement by Attorney General Jeff Sessions on Recommendations From the Task Force on Crime Reduction and Public Safety."  Here is its full text:

Attorney General Jeff Sessions today issued the following statement on the work of the Task Force on Crime Reduction and Public Safety:

"Every American, no matter who they are or where they live, has the right to be safe in their homes and neighborhoods.  And yet, in many locations, the violent crime rate is rising, and in some of our urban areas, the increase is staggering.  Reducing this crime surge is a top priority for President Trump and the Department of Justice.  Consistent with the President's Executive Order on a Task Force on Crime Reduction and Public Safety, I created the Task Force in February and it has provided me with recommendations on a rolling basis.  Dedicated professionals from throughout the Department have been listening to our partners in state, local, and tribal law enforcement; identifying successful violent crime reduction strategies; and developing recommendations on actions the Department can take to help improve public safety.

"I have been acting on the Task Force's recommendations to set the policy of the Department.  I will continue to review all of the Task Force's recommendations, and look forward to taking additional steps towards ensuring safer communities for all Americans."

I do not think this press release is meant as a direct response to recent statements by Prez Trump, but I do think it serves as an indirect way for AG Sessions to remind Prez Trump that the AG is busy doing the job Prez Trump appointed him to do.  In addition, an (informal?) deadline for the Task Force's recommendations was set for July 27, and I believe a lot of folks (myself included) thought we could be getting some public information about the Task Force's recommendations on that date or soon thereafter.  I believe this statement by AG Sessions is suggesting that no big formal announcements or big DOJ changes of policy should be expected tomorrow.

But maybe AG Sessions is saying and signaling something else with this statement.  When I first read it, I started looking for some other new document which set out some of the Task Force's recommendations.  But I have not found any such document, nor (after a re-read of this statement) do I think such a document is soon forthcoming.  That is why I find this statement somewhat puzzling, though perhpas I should not try so hard to read between the lines.

July 26, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (3)

Jared Kushner still finding time to work on sentencing reform with members of Congress

This lengthy new Wall Street Journal article, headlined "Kushner’s Interest in Drug-Sentencing Limits Is at Odds With Attorney General: Jared Kushner has discussed criminal justice changes with lawmakers who backed a 2016 measure that then-senator Jeff Sessions opposed," reports on the continued efforts of President Trump's son-in-law to keep federal statutory sentencing reform afloat. Here are excerpts:

President Trump’s son-in-law and senior adviser, Jared Kushner, and some Republican lawmakers are discussing potential changes to the criminal justice system, including to mandatory minimum sentencing, that could conflict with Attorney General Jeff Sessions ’ tough-on-crime agenda.

Mr. Kushner met this month with House Judiciary Chairman Bob Goodlatte (R., Va.), continuing a dialogue with lawmakers that began in March with Senate Judiciary Chairman Chuck Grassley (R., Iowa) and Sens. Dick Durbin (D., Ill.) and Mike Lee (R., Utah). Mr. Kushner also has huddled with leaders of organizations involved in criminal justice.

“He’s quietly listening to all sides, including outside groups, to understand what’s possible and to ultimately be able to make a recommendation to the president,” said a White House official familiar with the meetings. “It’s a personal issue to him given his father spent time in prison. He got to know the families and got to see what’s wrong with the federal prison system.” Mr. Kushner’s father, Charles Kushner, a real-estate executive, was sentenced in 2005 to two years in prison after pleading guilty to tax evasion.

Mr. Kushner’s discussions have included a range of issues, including curbing long mandatory-minimum sentences for nonviolent drug offenders. In contrast, Mr. Sessions is promoting mandatory minimums as a pivotal crime-fighting tool that helps prosecutors get cooperation from suspects and keeps dangerous offenders behind bars. Mr. Kushner has met with Mr. Sessions and is trying to find common ground, according to the White House official.

However, Mr. Sessions appears to have lost favor with the president for recusing himself from a probe into Russian interference in the 2016 election. Mr. Trump has taken to berating Mr. Sessions publicly, on Tuesday saying on Twitter Mr. Sessions “has taken a VERY weak position on Hillary Clinton crimes,” referring to the Federal Bureau of Investigation look into her email practices. On Monday, Mr. Trump referred to Mr. Sessions as “our beleaguered A.G.”

“Everyone does see it as a challenge that some people in the White House and Congress want to do criminal justice reform but are at odds with actions the attorney general is taking,” said Greg Mitchell, a federal lobbyist who has worked on criminal-justice issues for years, representing groups that favor shorter sentences....

Mr. Grassley, in a recent speech outlining his agenda at the American Enterprise Institute, a conservative think tank, said he is awaiting input from the White House before reviving the sentencing bill. Supporters cast it as a bipartisan initiative that demonstrates the growing consensus around reducing the prison population. “It is consistent to be both tough on crime and still support sentencing reform,” Mr. Grassley said at AEI. “Passing a sentencing bill remains a top legislative priority for me as chairman.”

Advocates of less-punitive drug-sentencing laws view Mr. Kushner as their chief ally in the White House. However, Mr. Kushner’s responsibilities are broad, from Middle East politics to overhauling the federal bureaucracy. He has also been drawn into the Russia probes. As with climate change and other issues, criminal justice divides the White House into opposing camps. Mr. Trump ran on a law-and-order platform, and Mr. Sessions has largely executed that agenda.

“We have a chance of getting the support of this administration,” Mr. Grassley said in his AEI speech. “You look at some people appointed by this president, you might believe otherwise, but I have reason to believe it’s possible. I know there is both support and opposition within this White House.”

In a sign of the sensitivities surrounding drug sentencing, two newly-filed criminal-justice bills steer clear of the issue. Rep. Doug Collins (R., Ga.) introduced a bill Monday that would require federal prisons to assess inmates’ needs and offer rehabilitation programs. Co-sponsored by Mr. Goodlatte, the bill requests $250 million over the next five years to pay for prison education programs. “As a compassionate conservative, I know that people who are doing time will at some point re-enter the community,” Mr. Collins said.

Congress is unlikely to focus on criminal justice before the fall, lobbyists and staffers say. It’s unclear whether Senate Majority Leader Mitch McConnell (R., Ky.), who declined to bring the 2016 sentencing bill to a vote, would embrace a similar bill this time around.

July 26, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Tuesday, July 25, 2017

"Could Lyin' Ted replace 'beleagured' Jeff? Trump is 'openly considering removing Attorney General Sessions and could replace him with former enemy Cruz"

The title of this post is the headline of this press report that amusingly captures the latest crazy news from inside the Beltway.  Here are the basics:

Ted Cruz is reportedly near the top of Donald Trump's list of choices to potentially replace Jeff Sessions as attorney general.  Cruz, who was regularly mocked by Trump during the Republican primaries and nicknamed 'Lyin' Ted' by the then-candidate, could find himself taking Sessions' spot if the former Alabama representative resigns or is fired, the Washington Post reports.

Trump would reportedly be willing to make the Texan the country's chief law enforcement officer despite him having last year revived a rumor linking Cruz's father, Rafael, to Lee Harvey Oswald and the JFK assassination.

However, Cruz was quick to distance himself from the speculation on Monday night, releasing a statement that said he is 'deeply gratified that we have a principled conservative like Jeff Sessions serving as Attorney General.  He added: 'The stories being reported in the media tonight are false. My focus is and will remain on fighting every day to defend 28 million Texans in the US Senate.'

Another name reportedly under consideration is former New York City mayor Rudy Giuliani.  Giuliani denied he is in the running for the role, which reportedly is on the cusp of being available due to Trump's desire to fire special counsel Robert Mueller and bring the Russia investigation into his presidential campaign to an end, according to the Post.

Senator Cruz has in the not-so-distant past been a supporter of some federal sentencing reforms for nonviolent drug offenders (such as Smarter Sentencing Act) and also for allowing states to set their own marijuana policies. Generally speaking, because just about any new AG would likely be more supportive of sentencing reform than AG Sessions, advocates of modern sentencing reforms should be rooting for the President to make a change here. But, personally, I still think a change is pretty unlikely.

UPDATE: Prez Trump today criticized AG Sessions yet again, but has not yet indicated plans to fire him. And this Daily Beast article highlights why no one should expect AG Sessions to retire. The piece is headlined "Jeff Sessions Is Growing ‘Pissed’ at Trump, His Allies Say. And He Doesn’t Plan to Quit." Here is a snippet:

Attorney General Jeff Sessions has no plans to leave office, as friends say he’s grown angry with President Donald Trump following a series of attacks meant to marginalize his power and, potentially, encourage his resignation. “Sessions is totally pissed off about it,” said a Sessions ally familiar with his thinking. “It’s beyond insane. It’s cruel and it’s insane and it’s stupid.”

Sessions’ allies say the president’s criticism of the attorney general is counterproductive. Perhaps more than any other member of Trump’s Cabinet, Sessions has been an uncompromising advocate for Trump’s agenda. The attorney general has worked methodically to dismantle Obama’s legacy at the Justice Department: reconsidering the department’s efforts to make troubled police departments change their practices, changing the DOJ’s stance on voter-ID lawsuits, and rolling back former Attorney General Eric Holder’s sentencing guidelines that were aimed at reduced incarceration and balancing out drug-crime-related punishments....

“He’s not going anywhere,” said another Sessions ally. “He is not going to resign. What he is accomplishing is way too important to the country.”

Rather than quit, Sessions insiders predict the attorney general will call Trump’s bluff. And unlike other members of Trump’s Cabinet, he has political wiggle room to do so. Trump’s base of support — immigration restrictionists, rank-and-file law-enforcement officials, and states’ rights conservatives — were Sessions’ fans before they flocked to the president. They may very well scoff at the idea that the administration would be better off without its AG. Sessions also enjoys continued support in the Senate, where he served for a decade. On Tuesday morning, Sen. Lindsey Graham (R-SC) pushed back on Trump’s attacks and called the president’s encouragement that Sessions prosecute Hillary Clinton over her email use “highly inappropriate.”

July 25, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (20)

Monday, July 24, 2017

Distinct approaches to the opioid epidemic

Earlier this month, Kathleen Sebelius and Tommy Thompson, who served as U.S. Secretaries of Health and Human Services under the last two Presidents, penned this Hill commentary headlined "5 big ideas to halt America's opioid epidemic."  Here are the five big ideas as these HHS Secretaries presented them: "Expand access to treatment through insurance...; Rein in overprescription of opioid pain relievers...; Treat opioid addiction as a public health problem...; Stop drug overdose deaths with this solution...; Learn how to treat pain with minimal side effects."

But as the headline of this New York Times article reports, some prosecutors in the New York region have been pursuing a much different big idea: "New Tactic in War on Opioids: Charging Dealers in Overdose Deaths."  Here is an excerpt from the piece:

As heroin and its synthetic cousin, fentanyl, send more and more victims to the morgue, prosecutors are leaping into largely uncharted legal terrain, as they tried in the 1970s, to fight the scourge. The second-degree manslaughter and criminally negligent homicide charges filed against Mr. Cummings follow similar strategies used recently by prosecutors in upstate New York and on Long Island. They also mirror a case brought three years ago by the city’s special narcotics prosecutor, Bridget G. Brennan, against a pain management doctor, Stan Xuhui Li, who was sentenced to more than 10 years in prison.

Convicting a physician of recklessly causing the death of his patients is a leap beyond proving a drug dealer did the same to a customer, but they reflect the same approach: prosecutors mixing current laws with new investigative tools to fight back against the rising tide of opioid-related deaths. The Richmond County district attorney, Michael E. McMahon, has applied such tactics in more than 240 overdose cases....

Around the city, a more common path for such cases has been through federal courts. Prosecutors in the Southern District of New York have brought 13 cases over the last four years charging people with “distribution of drugs causing death,” a statute that carries a 20-year minimum sentence. A bill in Albany, dubbed Laree’s Law, to create a homicide charge in state cases, has languished in the Assembly. In all cases, the authorities said they sought the most punitive sanctions, which has led to a focus on tying narcotics rings to violence, particularly in gang takedowns.

July 24, 2017 in Drug Offense Sentencing, Offense Characteristics, Who Sentences? | Permalink | Comments (6)

"Nine Lessons About Criminal Justice Reform: What Washington can learn from the states"

The title of this post is the headline of this extended essay by Bill Keller published last week at The Marshall Project. I recommend the piece in full, and here are excerpts focused on some of Bill's most sentencing-specific lessons:

“Reform” is one of those ambiguous words that mean different things to different people.  I think of reform as something that aims to reduce the numbers of Americans who are removed from society and deprived of their freedom, and to do it without making us less safe.  In 1972, when I was starting my newspaper life at The Oregonian, 93 out of 100,000 Americans were in state or federal prisons.  By 2008 the incarceration rate had grown nearly six-fold, to 536 per 100,000, and it has hovered in that vicinity ever since. That’s not counting the hundreds of thousands held in county jails on any given day or those confined in the juvenile justice system or immigrant detention.

Every year about 650,000 of those prisoners are released back into the world.  We know that most of them will be unemployed a year later, and that two-thirds of them will be rearrested within three years.  We have a corrections system that fails to correct.

Here are a few lessons Washington can learn from the states.

Lesson 1: It is possible to reduce incarceration and crime at the same time. ...

Lesson 3: Probably the most effective way to reduce incarceration is not to lock people up in the first place — at least not so many, and not for so long....

Lesson 4: While the front end is important, don’t neglect the back end....

Lesson 5: Be wary of reformers who suggest you can cut incarceration drastically by releasing low-level, nonviolent offenders. ...

Lesson 6: Prison reform doesn’t necessarily mean a huge windfall for taxpayers. ...

Lesson 8: Many states are finding that incentives work better than mandates.

July 24, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

Sunday, July 23, 2017

"North Dakota’s Norway Experiment: Can humane prisons work in America? A red state aims to find out."

The title of this post is the headline of this interesting new Mother Jones piece.  Here are a few excerpts from a piece that justifies a full read:

Scandinavian prisons tend to elicit eye rolls from law-and-order types weaned on the punitive American model.  Yet a growing number of state corrections officials are coming to the realization that our approach is ineffective, costly, and cruel.  Fred Patrick, director of the Center on Sentencing and Corrections at the Vera Institute of Justice, cites the nation’s staggering recidivism rate — 77 percent of inmates released from state prisons are rearrested within five years.  “Once you realize that this system isn’t working well,” he says, “it’s fairly easy to pivot to: ‘How do we do something different?'”...

North Dakota has advantages as a laboratory for correctional reforms. Like Norway, it is sparsely populated and relatively homogeneous — race-based prison gangs hold little sway here.  Another advantage, Don Specter told me, is simply that the state government is sufficiently small that it can be responsive to the exertions of a visionary leader.  Yet [North Dakota prisons chief Leann] Bertsch and [deputy Karianne] Jackson have no illusions about transforming their system into a corrections utopia overnight.  “You have to pace yourself,” Bertsch says.

The Norwegian principle of “dynamic security” posits that warm relationships between inmates and staff reduce the potential for violence. American prisons typically try to create safe conditions by means of oppressive rules, random searches, and the threat of additional punishment. Transitioning from one approach to the other requires a profound paradigm shift and the ability to sell front-line prison workers on a brand new mindset.  “How do you get somebody who thinks they’re in law enforcement to figure out you need to be more of an empath, more of a social worker, a friend, and a mentor?” Jackson asks.

The correctional officers I met at the state penitentiary, ex-military all, weren’t outwardly hostile to the idea of cultivating relationships with prisoners, but it clearly didn’t come naturally to them.  For that reason, perhaps, the brass created a mandate: Guards in the segregation unit must have at least two conversations per shift with each of the inmates under their supervision.  “It’s worth a shot,” a corrections officer named Josh Hedstrom told me.  “Because what we were doing before wasn’t working.”

July 23, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Reduced jail time in Tennessee for inmates who ... agree to vasectomy or birth control implant!?!?!

This local story out of Tennessee is hard to believe, but it does not appear to be fake news.  The story is headlined "White County Inmates Given Reduced Jail Time If They Get Vasectomy," and here are excerpts:

Inmates in White County, Tennessee have been given credit for their jail time if they voluntarily agree to have a vasectomy or birth control implant, a popular new program that is being called “unconstitutional” by the ACLU.

On May 15, 2017 General Sessions Judge Sam Benningfield signed a standing order that allows inmates to receive 30 days credit toward jail time if they undergo a birth control procedure. Women who volunteer to participate in the program are given a free Nexplanon implant in their arm, the implant helps prevent pregnancies for up to four years. Men who volunteer to participate are given a vasectomy, free of charge, by the Tennessee Department of Health.

County officials said that since the program began a few months ago 32 women have gotten the Nexplananon implant and 38 men were waiting to have the vasectomy procedure performed.

Judge Benningfield told NewsChannel 5 that he was trying to break a vicious cycle of repeat offenders who constantly come into his courtroom on drug related charges, subsequently can’t afford child support and have trouble finding jobs. “I hope to encourage them to take personal responsibility and give them a chance, when they do get out, to not to be burdened with children. This gives them a chance to get on their feet and make something of themselves,” Judge Benningfield said in an interview.

First elected in 1998, Judge Benningfield decided to implement the program after speaking with officials at the Tennessee Department of Health. “I understand it won’t be entirely successful but if you reach two or three people, maybe that’s two or three kids not being born under the influence of drugs. I see it as a win, win,” he added.

Inmates in the White County jail were also given two days credit toward their jail sentence if they complete a State of Tennessee, Department of Health Neonatal Syndrome Education Program. The class aimed to educate those who are incarcerated about the dangers of having children while under the influence of drugs. “Hopefully while they’re staying here we rehabilitate them so they never come back,” the judge said.

District Attorney Bryant Dunaway, who oversees prosecution of cases in White County is worried the program may be unethical and possibly illegal. “It’s concerning to me, my office doesn’t support this order,” Dunaway said....

On Wednesday, the ACLU released this statement on the program: "Offering a so-called 'choice' between jail time and coerced contraception or sterilization is unconstitutional. Such a choice violates the fundamental constitutional right to reproductive autonomy and bodily integrity by interfering with the intimate decision of whether and when to have a child, imposing an intrusive medical procedure on individuals who are not in a position to reject it. Judges play an important role in our community – overseeing individuals’ childbearing capacity should not be part of that role."

There are many thing so very remarkable about this story, but I am especially struck by how many jail inmates are willing to undergo a life-changing procedure simply to avoid 30 days in jail. Anyone who doubts the coercive pressures of even a short jail stay (say because of an inability to make bail) should be shown this story.

July 23, 2017 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (19)

Saturday, July 22, 2017

Senators Kamala Harris and Rand Paul make the case for bail reforms

In this New York Times op-ed, the notable pair of Kamala Harris and Rand Paul explain the reasoning behind their new bill to reform bail practices.  The piece is headlined "To Shrink Jails, Let’s Reform Bail," and here are excerpts:

Our justice system was designed with a promise: to treat all people equally.  Yet that doesn’t happen for many of the 450,000 Americans who sit in jail today awaiting trial because they cannot afford to pay bail.

Whether someone stays in jail or not is far too often determined by wealth or social connections, even though just a few days behind bars can cost people their job, home, custody of their children — or their life.  As criminal justice groups work to change sentencing and mandatory minimum laws, we must also reform a bail system that is discriminatory and wasteful.

Excessive bail disproportionately harms people from low-income communities and communities of color.  The Supreme Court ruled in Bearden v. Georgia in 1983 that the Constitution prohibits “punishing a person for his poverty,” but that’s exactly what this system does. Nine out of 10 defendants who are detained cannot afford to post bail, which can exceed $20,000 even for minor crimes like stealing $105 in clothing.

Meanwhile, black and Latino defendants are more likely to be detained before trial and less likely to be able to post bail compared with similarly situated white defendants.  In fact, black and Latino men respectively pay 35 percent and 19 percent higher bail than white men.

This isn’t just unjust. It also wastes taxpayer dollars.  People awaiting trial account for 95 percent of the growth in the jail population from 2000 to 2014, and it costs roughly $38 million every day to imprison these largely nonviolent defendants.  That adds up to $14 billion a year.

Bail is supposed to ensure that the accused appear at trial and don’t commit other offenses in the meantime.  But research has shown that low-risk defendants who are detained more than 24 hours and then released are actually less likely to show up in court than those who are detained less than a day....

Our bail system is broken. And it’s time to fix it.  That’s why we’re introducing the Pretrial Integrity and Safety Act to encourage states to reform or replace the bail system.  This should not be a partisan issue.

First, our legislation empowers states to build on best practices.  Kentucky and New Jersey, for instance, have shifted from bail toward personalized risk assessments that analyze factors such as criminal history and substance abuse. These are better indicators of whether a defendant is a flight risk or a threat to the public and ought to be held without bail.

Colorado and West Virginia have improved pretrial services and supervision, such as using telephone reminders so fewer defendants miss court dates and end up detained.  These nudges work.  Over the second half of 2006, automated phone call reminders in Multnomah County in Oregon, resulted in 750 people showing up in court who otherwise may have forgotten their date.

Instead of the federal government mandating a one-size-fits-all approach, this bill provides Department of Justice grants directly to the states so each can devise and carry out the most effective policies, tailored for its unique needs.

Enabling states to better institute such reforms also honors one of our nation’s core documents, the Bill of Rights. In drafting the Eighth Amendment, which prohibits excessive bail, the founders sought to protect people from unchecked government power in the criminal justice system.

Second, our bill holds states accountable. Any state receiving support must report on its progress and make sure that reforms like risk assessments are not discriminatory through analyses of trends and data.  This will show that it’s possible to demand transformation, transparency and fairness.

Finally, this bill encourages better data collection. Data on the pretrial process is notoriously sparse. By collecting information on how state and local courts handle defendants, we can help guarantee that reforms yield better outcomes.

July 22, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, July 21, 2017

Could Prez Trump follow Prez Obama's lead by making notable and significant use of his clemency powers?

The question in the title of this post is my somewhat cheeky effort to put a kind of sentencing spin on the news from the Washington Post that Prez Trump has been "discussing the president’s authority to grant pardons" as part of an effort to limit or undercut special counsel Robert Mueller’s Russia investigation. Here is a bit more:

Trump has asked his advisers about his power to pardon aides, family members and even himself in connection with the probe, according to one of those people. A second person said Trump’s lawyers have been discussing the president’s pardoning powers among themselves.

One adviser said the president has simply expressed a curiosity in understanding the reach of his pardoning authority, as well as the limits of Mueller’s investigation. “This is not in the context of, ‘I can’t wait to pardon myself,’ ” a close adviser said.

Along with a number of other commentators, I have long complained about the failure of modern President's to make robust use of their clemency powers, particularly early in their terms. I have not had exactly these kinds of pardons in mind, but I am still inclined to be grateful whenever a president is giving any attention to his historic clemency powers.

July 21, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (32)

"Should California drop criminal penalties for drug possession?"

The question in the title of this post is the headline of this effective new opinion piece in the San Francisco Chronicle authored by Beau Kilmer and Robert MacCoun. Here are excerpts:

For better or worse, California likes to decide drug policy at the ballot box.  Voters have already approved marijuana legalization, but criminal sanctions against users of heroin, cocaine and other drugs are very much intact, though they’ve been moving in a more lenient direction.  It would not be surprising to see a proposition entirely eliminating criminal penalties for drug possession in the near future.

The removal of criminal penalties for drug possession — which is very different from allowing legal sales — is not a new idea. It has been implemented in other countries, and a joint statement from the United Nations and World Health Organization last month recommended the review and repeal of “laws that criminalize or otherwise prohibit … drug use or possession of drugs for personal use.”

California already moved in this direction in 2014 when voters approved Proposition 47, which reduced to a misdemeanor the possession of heroin, methamphetamine and other drugs. Possession of these drugs, however, is still a criminal offense.

Possession arrests and convictions can have devastating effects on users and their families — especially for young men of color, who are disproportionately targeted, and for immigrants, who can be deported for a criminal offense.  There are a number of additional sanctions associated with drug convictions; for example, they can make it harder to receive federal aid for college, or access public housing.  The stigma around criminalization can also make it harder for users to get help or discuss their problems with family members and health professionals.

On the other side, there are two main arguments for criminalizing possession.  First, there’s deterrence, with the goal of discouraging use by threatening users with sanctions. Second, there’s leverage — that is, using arrest and prosecution to steer those with substance-use disorders toward treatment....

We think that a constructive new debate about decriminalizing drug possession can start with three observations:

Decriminalizing drug possession and use does not give users a free pass to commit other crimes.  If substance use leads individuals to drive impaired or engage in violence, they should be punished for those offenses.  Jurisdictions could consider “bundling” decriminalization with innovative treatment and/or sanctioning regimes for those whose use leads them to commit crimes that threaten public safety.

Eliminating criminal penalties needn’t mean eliminating all sanctions on use. Many jurisdictions outside California punish cannabis possession with civil fines, and the same could be done for other drugs.  (A failure to pay the fine could still be punishable by jail time.)  Many citizens will be subjected to drug testing at work. And the informal social sanctions of stigma and shame will continue to play an important role, as we see with tobacco smoking and heavy alcohol use.

Decriminalizing possession does not have to be permanent. Risk-averse decision makers could adopt a sunset provision that automatically reimposes criminal penalties after a fixed amount of time unless the Legislature acts to extend the change in policy.

Californians have a lot to consider when it comes to decriminalizing possession, especially because we are still learning about the consequences of Prop. 47.  But now is the time for a rigorous discussion about removing criminal penalties for drug possession, rather than rushing to judgment in the heat of a future election season.

July 21, 2017 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Thursday, July 20, 2017

OJ Simpson granted parole after serving nine years in prison for Nevada robbery convictions

As reported in this Los Angeles Times article, "O.J. Simpson was granted parole Thursday for convictions connected to a robbery in a Las Vegas about a decade ago. He could be out of jail as early as October. Here is bit more about perhaps the highest profile justice-involved individual:

The ruling came after a hearing in which Simpson testified that he longed to be reunited with his family and children and that he has no interest in returning to the media spotlight.

During the hearing, Simpson was assured by one of his victims that the former football star and actor already has a ride waiting for him when he gets out. “I feel that it’s time to give him a second chance; it’s time for him to go home to his family, his friends,” Bruce Frumong, a sports memorabilia dealer and a friend of Simpson’s, told the Nevada Board of Parole.

Frumong was threatened and robbed by Simpson and some of his associates in a Las Vegas hotel in 2007, and his testimony in that case led to Simpson’s imprisonment. But, Frumong told the board, “if he called me tomorrow and said, ‘Bruce I’m getting out, would you pick me up?….’” At that point, Frumong paused, turned to Simpson and addressed the former USC gridiron star by his nickname: “Juice, I’d be here tomorrow. I mean that, buddy.”

The board went into recess late Thursday morning after hearing more than an hour of testimony from Simpson; his oldest daughter, Arnelle Simpson; and Frumong, who each asked for Simpson’s release. The panel returned about a half hour later and unanimously voted to grant parole....

The commissioners asked Simpson a series of questions about how he had conducted himself in prison, what he thought his life would be like outside of prison and whether he felt humbled by his convictions. Simpson said on several occasions he was “a good guy” and indicated that he mostly wanted to spend time with his family — bemoaning missed graduations and birthdays — and that the state of Nevada might be glad to be rid of him. “No comment,” one of the commissioners said to some laughter.

He expressed regret at being involved with the crime, but drew some pushback from commissioners who took issue with his version of events, in which he said he didn’t know a gun had been brandished in the hotel room during the robbery. But Simpson held to his version, repeatedly apologizing and expressing regret that he had left a wedding in Las Vegas to go recover memorabilia he said was his. “I am sorry things turned out the way they did,” Simpson said. “I had no intent to commit a crime.”

July 20, 2017 in Celebrity sentencings, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Wednesday, July 19, 2017

Pennsylvania Supreme Court finds state sex offender registration law punitive and thus unconstitutional to apply retroactively

In a big opinion today, the Pennsylvania Supreme Court decided its state's sex offender registration law, though civil in design, was punitive in practice and thus cannot be applied retroactively. The 55-page majority opinion in Pennsylvania v. Muniz, No. (Pa. July 19, 2017) (available here), gets started this way:

We granted discretionary review to determine whether Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§9799.10-9799.41, as applied retroactively to appellant Jose M. Muniz, is unconstitutional under the ex post facto clauses of the United States and Pennsylvania Constitutions.  The Superior Court held SORNA’s registration provisions are not punishment, and therefore retroactive application to appellant, who was convicted of sex offenses prior to SORNA’s effective date but sentenced afterwards, does not violate either the federal or state ex post facto clauses.  For the following reasons, we reverse and hold: 1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.

The 13-page dissenting opinion authored by Chief Justice Saylor is available here and concludes this way: "Based on the Mendoza-Martinez factors, which I view as almost uniformly suggesting a non-punitive effect, I would conclude that SORNA’s registration requirements do not constitute punishment and do not violate the federal ex post facto clause."

July 19, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (27)

Will (and should) OJ Simpson get paroled in Nevada this week?

This USA Today article, headlined "Why O.J. Simpson is expected to be paroled at July 20 hearing," reports on why an infamous state criminal defendant is expected to secure parole in Nevada after serving only about 30% of his imposed prison term. Here are excerpts:

O.J. Simpson, behind bars in a Nevada prison for almost nine years, is eligible for parole Thursday and one of his former attorneys thinks the matter is all but a foregone conclusion that the former football and TV star will be eligible for release on Oct. 1.

"He’s going to get parole," said Yale Galanter, who represented Simpson during the 2008 trial when Simpson was found guilty of 12 counts, including robbery and kidnapping, and sentenced to nine years minimum and 33 years maximum. "Parole in the state of Nevada is really based on how you behave in prison, and by all accounts he’s been a model prisoner. There are no absolutes anytime you’re dealing with administrative boards, but this is as close to a non-personal decision as you can get."

Four members from the Nevada Board of Parole Commissioners will consider parole for Simpson at the board offices in Carson City, Nev., with the proceedings set to begin Thursday at 1 p.m. ET. Simpson, 70, will participate by video conference from about 100 miles away at Lovelock Correctional Center, where he has been imprisoned since December 2008.

Parole is largely determined by a point system, and how the commissioners feel about Simpson — or his acquittal in the murder of his ex-wife, Nicole Brown Simpson, and Ron Goldman — can have no impact on parole, according to Galanter. "It really is based on points," he said. "How long have you served, what your disciplinary record is, what the likelihood of committing another crime is, their age, the facts and the circumstances of the case."

The parole board has rejected the idea that Simpson could be facing more conservative commissioners because he’s imprisoned in northern Nevada. In a statement published on its website, the parole board said all commissioners use the same risk assessment and guidelines, adding, "There is no evidence that the board is aware of that indicates that one location has panel members who are more conservative or liberal than the other location."... "Simpson, with the help of several other men, broke into a Las Vegas hotel room on Sept. 13, 2007, and stole at gunpoint sports memorabilia that he said belonged to him. More than a year later, on Oct. 8, 2008, he was found guilty by a jury on all 12 charges. He was granted parole in 2013 on the armed robbery convictions. Galanter called that "the clearest indicator" Simpson will be granted parole on the remaining counts Thursday.

Simpson is being considered for parole for kidnapping, robbery, assault with a deadly weapon and the use of a deadly weapon enhancement. "It’s a fairly routine administrative matter," the attorney said. "It’s more like, 'Mr. Simpson, you’ve been a model prisoner, you have the points, congratulations, do you have anything to say, thank you very much, granted, Oct. 1.' "

Yet, it won’t exactly be routine. The parole board, for example, has said it will issue a decision Thursday so to minimize distractions. The results of some hearings, by contrast, take three weeks to reach the inmate. "The media interest in this one case is a disruption to our operation," the parole board said in its statement. "A decision (on Simpson) is being made at the time of the hearing so that the board’s operation can return to normal as soon as possible after the hearing."...

Simpson will have an opportunity to address the board by video conference as he did during the 2013 hearing. More than 240 media credentials have been approved, according to Keast, who said a dozen satellite trucks are expected at the sites in both in Carson City and Lovelock. If Simpson is paroled, the media figure to return in droves in Oct. 1, when he will be eligible for release from prison.

Notably, Gregg Jarrett at FoxNews believes strongy that OJ shoud not get parole; he explains in this commentary, headlined "O.J. Simpson, up for parole, should never be set free," how the California civil suit finding OJ responsible for wrongful deaths should be sufficient for the Nevada parole board to conclude he presents a risk to public safety.

July 19, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

"Plea Agreements As Constitutional Contracts"

The title of this post is the title of this notable new article authored by Colin Miller available via SSRN. Here is the abstract:

In his dissenting opinion in Ricketts v. Adamson, Justice Brennan proposed the idea of plea agreements as constitutional contracts and lamented the fact that the Supreme Court had yet to set up rules of construction for resolving plea deal disputes.  Since Adamson, courts have given lip service to Justice Brennan’s dissent and applied his reasoning in piecemeal fashion.  No court or scholar, however, has attempted to define the extent to which a plea agreement is a constitutional contract or develop rules of construction to apply in plea deal disputes.  This gap is concerning given that ninety-five percent of criminal cases are resolved by plea agreements.

This Article is the first attempt to defend the concept of plea agreements as constitutional contracts and establish a core rule of construction to guide judges in interpreting plea bargains. It advances two theses.  First, plea agreements are constitutional contracts whose constitutional protections extend to all matters relating to plea agreements.  Second, due process requires that courts treat pleading defendants at least as well as parties to other contracts, meaning all of the protections associated with contract law should be incorporated into plea bargaining law through the Due Process Clause.

This Article then argues that incorporation of one of these protections — the implied covenant of good faith and fair dealing — would lead to legal reform in three plea bargaining scenarios where pleading defendants are treated worse than parties to other contracts:

(1) substantial assistance motions;

(2) Brady disclosures; and

(3) prosecutorial presentation of sentencing recommendations.

July 19, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)