Tuesday, August 23, 2016

"Racial Origins of Doctrines Limiting Prisoner Protest Speech"

The title of this post is the title of this notable new paper authored by Andrea Armstrong and now available via SSRN. Here is the abstract:

This article examines the racial origins of two foundational cases governing prisoner protest speech to better understand their impact in light of the Black Lives Matter movement.  Two Supreme Court cases provide the primary architecture for the regulation of prisoner or detainee speech . The first, Adderley v. Florida, is (mis)interpreted for the proposition that jails (and by analogy, prisons) are non-public spaces.  Under First Amendment doctrine, non-public spaces are subject to heightened regulation and suppression of speech is authorized.  The second, Jones v. North Carolina Prisoners’ Labor Union, Inc., amplifies the effect of Adderly and prohibits prisoner solicitation for union membership.  Together, these two cases effectively provide broad discretion to prison administrators to punish prisoners and detainees for their protest speech.

Neither Adderley nor Jones acknowledge the racial origins of the cases. Holdings in both cases relied on race-neutral rationales and analysis and yet, the underlying concerns in each case appear tied to racial concerns and fears.  Thus this Article is a continuation of a broader critical race praxis that reminds us that seemingly objective and neutral doctrines themselves may incorporate particular ideas and notions about race.  Today’s protesters face a demonstrably different doctrinal landscape, should they protest within the prison or jail walls.  While the content of speech by a “Black Lives Matter” activist may not change, the constitutional protection afforded to that speech will be radically different depending on where she speaks.

August 23, 2016 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

New Fair Punishment Project report takes close look at small number of US counties still actively utilizing the death penalty

FairJustIn this post earlier this year, I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).   I received an email this morning highlighting a new big project and report from the the FPP.  Here are excerpts from the email:

Today [FPP] released a new report offering an in-depth look at how the death penalty is operating in the small handful of counties across the country that are still using it.  Of the 3,143 county or county equivalents in the United States, only 16—or one half of one percent—imposed five or more death sentences between 2010 and 2015.  Part I of the report, titled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties examined 10 years of court opinions and records from eight of these 16 “outlier counties,” including Caddo Parish (LA), Clark (NV), Duval (FL), Harris (TX), Maricopa (AZ), Mobile (AL), Kern (CA) and Riverside (CA). The report also analyzed all of the new death sentences handed down in these counties since 2010....

The report notes that these “outlier counties” are plagued by persistent problems of overzealous prosecutors, ineffective defense lawyers, and racial bias. Researchers found that the impact of these systemic problems included the conviction of innocent people, and the excessively harsh punishment of people with significant impairments.  The report notes that many of the defendants appear to have one or more impairments that are on par with, or worse than, those that the U.S. Supreme Court has said should categorically exempt individuals from execution due to lessened culpability.  The Court previously found that individuals with intellectual disabilities (Atkins v. Virginia, 2002) and juveniles under the age of 18 (Roper v. Simmons, 2005) should not be subject to the death penalty under the Eighth Amendment.

In conducting its analysis, we reviewed more than 200 direct appeals opinions handed down between 2006 and 2015 in these eight counties. We found:

  • Sixty percent of cases involved defendants with significant mental impairments or other forms of mitigation.
  • Eighteen percent of cases involved a defendant who was under the age of 21 at the time of the offense. In Riverside County, 16 percent of the defendants were age 18 at the time of the offense.
  • Forty-four percent of cases involved a defendant who had an intellectual disability, brain damage, or severe mental illness. In four of the counties, half or more of the defendants had mental impairments: Maricopa (62 percent), Mobile (60 percent), Caddo Parish (57 percent), and Kern (50 percent).
  • Approximately one in seven cases involved a finding of prosecutorial misconduct. Maricopa and Clark counties had misconduct in 21 percent and 47 percent of cases respectively.
  • Bad lawyering was a persistent problem across all of the counties. In most of the counties, the average mitigation presentation at the penalty phase of the trial, in which the defense lawyer is supposed to present all of the evidence showing that the defendant’s life should be spared -- including testimony from mental health and other experts, lasted approximately one day. While this is just one data point for determining the quality of legal representation, this finding reveals appalling inadequacies. In Duval County, Florida, the entire penalty phase of the trial and the jury verdict often came in the same day.
  • A relatively small group of defense lawyers represented a substantial number of the individuals who ended up on death row. In Kern County, one lawyer represented half of the individuals who ended up on death row between 2010 and 2015.

Additional findings:

  • Five of the eight counties had at least one person exonerated from death row since 1976. Harris County has had three death row exonerations, and Maricopa has had five.
  • Out of all of the death sentences obtained in these counties between 2010 and 2015, 41 percent were given to African-American defendants, and 69 percent were given to people of color.  In Duval, 87 percent of defendants were Black in this period. In Harris, 100 percent of the defendants who were newly sentenced to death since November 2004 have been people of color.
  • The race of the victim is also a significant factor in who is sentenced to death in many of these counties. In Mobile County, 67 percent of the Black defendants, and 88% of all defendants, who were sentenced to death were convicted of killing white victims. In Clark County, 71 percent of all of the victims were white in cases resulting in a death sentence. The report noted just three white defendants sentenced to death for killing Black victims between 2010 and 2015. One of those cases was from Riverside, and in that case the defendant was also convicted of killing two additional white victims. The two other cases were from Duval.
  • Five of the 16 “outlier counties” are from Florida and Alabama, the only two states that currently allow non-unanimous jury verdicts.  In Duval, 88 percent of the decisions in the review period were non-unanimous, and in Mobile the figure was 80 percent. 

Part II of this report, which will be released in September, will look at the remaining eight “outlier counties,” including: Dallas (TX), Jefferson (AL), Pinellas (FL), Miami-Dade (FL), Hillsborough (FL), Los Angeles (CA), San Bernardino (CA), and Orange (CA).

August 23, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Would it be useful for President Obama to "formally declare an end" to the drug war?

The question in the title of this post is prompted by this New Yorker commentary authored by Jelani Cobb and running under this full headline: "A Drawdown on the War on Drugs: The President’s commuting of sentences and an end of the use of private prisons signal potentially meaningful changes in how the United States handles drug abuse." Here are the closing two paragraphs that lead to the question:

There is an additional gesture that the President could make: he could formally declare an end to the war.  In 1996, when Bill Clinton announced that “the era of big government is over,” his words were both aspirational and a reflection of policies favored by Republicans and a growing number of centrist Democrats.  There’s an emerging and similarly bipartisan consensus for changing the policies that have led to mass incarceration.  For a sitting President to declare a conclusion to the most disastrous domestic policy of our time might, even if premature, perhaps mark at least the beginning of its end.

Last year, the Justice Department reported the first decline in the federal prison population in thirty-three years, and a meaningful, if incremental, change in the way that we approach the problem of drug abuse in the United States.  The armchair forecast holds that the President’s legacy will be anchored by his handling of two wars abroad.  But history may have equal regard for the means by which he handles the one he inherited at home.

I share this author's sense that it could be beneficial for Prez Obama to assert formally that the drug war is over.  At the same time, with US government spending and debt at historic levels 20 years after Prez Bill Clinton asserted that “the era of big government is over,” it is not obvious that any policy realities are certain (or even likely) to enduringly reflect such political rhetoric.

August 23, 2016 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, August 22, 2016

"Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair"

The title of this post is the headline of this recent Medium commentary authored by Akiva Freidlin and Emi Young.  Here are excerpts:

As recent graduates of Stanford Law School who work on behalf of low-income people affected by our criminal justice system, we have been closely attuned to the Brock Turner sexual assault case. We recognize the urgency of feminist-led reforms to rape law, and of efforts to address and prevent sexual violence, but the misguided campaign to recall Judge Aaron Persky advances neither goal. Instead, the recall proponents have used misleading arguments to inflame the perception that Judge Persky imposes unfair sentences depending on a defendant’s race and class. These distortions misdirect long-overdue public outrage over the state of America’s criminal justice system to support Persky’s recall, while threatening to make the system less fair for indigent defendants and people of color.... In July, the recall campaign began drawing misleading comparisons between Turner and a Latino man named Raul Ramirez, whose case was overseen by Judge Persky. The campaign claims that Ramirez, a low-income person of color, received a three-year sentence for “very similar crimes,” proving that Judge Persky has “shown bias.”  But there are two crucial legal differences between the cases, which render the comparison meaningless....

Ramirez received a three-year sentence as part of a negotiated plea deal between his attorney and the prosecutor, so Judge Persky had no discretion to give him a lesser sentence.... [And] Ramirez and Turner were charged with crimes that are treated differently under the law. Ramirez received a prison sentence because the District Attorney charged him under a statute that absolutely requires it.... These realities explain the differences between Brock Turner’s sentence of probation and Raul Ramirez’s three-year prison term  —  not the recall campaign’s unsupported claims of judicial bias....

Now the campaign has begun to publicize a misleading barrage of claims about another plea bargain, using rhetoric that undermines hard-won reforms to immigration policy. In this case, a defendant named Ming Hsuan Chiang pleaded guilty to a domestic violence charge in exchange for a sentence that critics deride as being too lenient.  The facts in this case, and the injuries to the victim, are upsetting  —  but once again, as in the Ramirez case, Judge Persky approved a sentence recommended by the District Attorney’s office, in fulfillment of the prosecution’s agreement with Chiang’s attorney.  Nevertheless, the campaign claims that the sentence somehow provides evidence that Persky has “shown bias.” 

One of the recall campaign’s main proponents  —  Professor Michelle Dauber, who teaches at our law school   — has also pointed to the plea bargain’s consideration of Chiang’s immigration status as a sign that Judge Persky is somehow unacceptable as a judge....  This insinuation turns law and policy on its head.  For non-citizens, being convicted of even a relatively minor crime may trigger federal immigration penalties such as mandatory detention, deportation, and permanent separation from close family . Addressing harmful and unjust “crimmigration” penalties has been a top priority of immigrants rights advocates, especially here in California, where one out of four residents is foreign-born....

Our criminal system is deeply unjust, but attributing these problems to Judge Persky is a mistake — and the effort to recall him only harms less privileged defendants.  The false personal accusations against Judge Persky distract from real understanding of structural inequalities.  In Brock Turner’s case, the probation department’s recommendation against prison weighed specific legal factors that, while putatively neutral, often correspond to race and class.  For instance, consideration of a defendant’s past criminal record tends to benefit middle-class whites like Turner, who have never been subjected to the dragnet policing and “assembly-line justice” that leave young men of color with sentence-aggravating prior convictions.  Similarly, for Turner, the loss of valuable educational opportunities was seen as mitigating the need for greater punishment, whereas for less privileged defendants, institutional barriers  —  like disciplinary policies that have created a “school-to-prison pipeline”  —  impede access to those opportunities in the first place. The time and money being spent to remove Persky from the bench will not address these dynamics or help untangle the web of policies that perpetuate inequality along racial and class lines.

Here in California, voters have finally begun to remedy the unintended and disparate effects of the 1993 “Three Strikes” ballot initiative and other mandatory sentencing laws, by permitting the discretionary re-sentencing of people convicted under these schemes.  By sending the message that unpopular but lawful decisions may lead to a recall, the campaign threatens the sole mechanism for individualized consideration of mitigating circumstances.

This will only make it harder for low-income defendants and those who advocate for them.... Those effects are not merely speculative.  As shown in ten empirical studies analyzed by the Brennan Center for Justice, judges impose harsher sentences when pressured by elections, and some studies find that these effects are concentrated on defendants of color.  Holding a recall election out of frustration with Turner’s lawful sentence will only exacerbate these problems.  As a prominent Santa Clara County judge has explained, a recall will “have trial judges looking over their shoulders, testing the winds before rendering their decisions.”...

Even in anger, the public must take a hard look at the rationale and likely effect of recalling Judge Persky.  By stoking public anger with misleading claims, the recall campaign encourages a short-sighted response without accounting for the actual sources of structural injustice, or the consequences to those already burdened by inequality.

Some prior related posts:

August 22, 2016 in Celebrity sentencings, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Noticing that the Big Apple has lately been a big nothing when it comes to major criminal justice reforms

These two new article appearing in today's New York Times provides a useful reminder that New York City and state have lately not been progressive vanguards when it comes to recent criminal justice reforms:

Here are snippets from the first article which highlight reasons why repeated and persistent criminal justice reform can often be such a significant "uphill climb" even for reform-minded political leaders:

Lawmakers across the country are experimenting with a range of criminal justice reforms, driven by protests, a reckoning with the effects of mass incarceration and anger over police killings.  But this legislative momentum has mostly stalled in an unexpected place: New York, a state led by Democrats that outlawed the death penalty more than a decade ago and did away with the last of the Rockefeller Drug Laws, which mandated strict sentences for low-level drug offenses, in 2009.

There has been hardly any legislation under the rubric of criminal justice reform passed in Albany since the governor, Andrew M. Cuomo, a Democrat, came to office in 2011, or in New York City since the Democratic mayor, Bill de Blasio, and many members of the City Council came to office in 2014 promising to overhaul police-community interactions....

Their reluctance is, in some ways, tethered to an enduring unease about public safety in New York, particularly in New York City.  Statistics show street crime at historic lows, but many people say in polls that crime is worsening. Any effort to place new limits on law enforcement or to reduce punishments could prove perilous for politicians should a spike in crime occur.

“We have to be fair to victims of crime,” State Senator Patrick Gallivan, a Republican who leads the Crime Victims, Crime and Correction Committee, said in defending the state’s unusually low age of criminal responsibility, 16. “And we need to hold people accountable.”  Though Governor Cuomo has backed raising the age to 18, the legislation has not moved forward. New York remains the only state other than North Carolina to routinely prosecute 16-year-olds as adults.

In New York City, the Police Department has successfully opposed efforts to decriminalize certain petty offenses or put legal limits on a variety of police behaviors. The Council adopted a new system for handling some minor crimes, but left the decision of when to use that system to the police. A court-ordered body-camera program, which a federal judge mandated in 2013 after finding that the police had engaged in unconstitutional street stops of black and Hispanic residents on a vast scale, has been repeatedly delayed....

If New York’s recent interest in legislating criminal justice reform lags that of other states, it is quite likely because New York had something of a head start. It is often cited by some advocates as a model.

The state has no death penalty.  The state has slashed its prison population by some 20,000 inmates from its high point in 1999, in large part because of the repeal of the Rockefeller laws. It now has an incarceration rate well below the national average. In the last five years, 13 prisons have closed. “We changed the paradigm long ago,” Alphonso David, the counsel to Mr. Cuomo, said.  “The changes that other states are now making, we’ve already made.”...

Elsewhere in the country it is often Republicans, citing the need to reduce government spending, who are providing momentum for such reforms.  That dynamic is particularly striking in the South, a region known for its high rates of incarceration and frequent executions.  A number of the laws aimed at reducing prison rates in recent years have been passed in the South or in states elsewhere with Republican-controlled legislatures.

August 22, 2016 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Would the "the first liberal Supreme Court in a generation" really reshape the criminal justice system in the United States?

The question in the title of this post is prompted by this notable new Vox article headlined "How the first liberal Supreme Court in a generation could reshape America." Interestingly (and appropriately?), the article talks a lot and at length about sentencing issues, and thus it is this week's first must-read. And here are excerpts:

Odds are that very soon, the Supreme Court will become something it hasn’t been in nearly 50 years: made up of a majority of Democratic-appointed justices.

Ever since Abe Fortas’s resignation in 1969, the Court has either been split down the middle or, more often, made up primarily of Republican appointees. Some of those Republican appointees nonetheless turned out to be liberals, but even taking that into account, the Court hasn’t been majority liberal since 1971, when William Rehnquist and Lewis Powell joined....

The unfilled vacancy of Antonin Scalia’s seat combined with a Hillary Clinton victory in November could set the Court on a new course. Merrick Garland, nominated by Barack Obama in March, has yet to face a vote. But though Senate Republicans have denied they’ll confirm him in the lame-duck session this winter, should Hillary Clinton win they might be tempted to confirm him lest she name a more liberal nominee. Either way, the result is a moderate to liberal justice in Scalia’s seat, moving the Court appreciably to the left.

Clinton also stands a good chance of replacing the moderate-to-conservative Anthony Kennedy (who recently turned 80) with a reliable liberal, and keeping Ruth Bader Ginsburg (83 and a two-time cancer survivor) and Stephen Breyer’s (78) seats in liberal hands. The result would be a solid 6-3 liberal majority of a kind not seen in many decades....

A liberal Court could end long-term solitary confinement. It could mandate better prison conditions in general, making it more costly to maintain mass incarceration. It could conceivably end the death penalty. It could uphold tough state campaign finance rules and start to move away from Citizens United. It could start to develop a robust right to vote and limit gerrymandering. It could strengthen abortion rights, moving toward viewing abortion rights as a matter of equal protection for women....

Let’s start with perhaps the biggest thing that could happen under a liberal Court, perhaps even a Court where another conservative replaces Scalia: the end of long-term solitary confinement. In 2015, Anthony Kennedy filed a concurring opinion in Davis v. Ayala, a death penalty case in which the Court (joined by Kennedy) sided against the defendant. Nevertheless, Kennedy used his concurrence to unleash a bracing jeremiad against the evils of solitary confinement, in which the defendant had been held for most of his more than 25 years in prison....

The implication was clear: Kennedy wanted advocates to bring a case challenging the constitutionality of long-term solitary confinement on the grounds that it constitutes cruel and unusual punishment under the Eighth Amendment. He basically dared them to, and suggested that if such a case reached the Court, he’d be inclined to limit the practice. With four reliable liberals already on the Court and likely to join him, it’s quite likely that such a case would end with solitary confinement sharply limited....

Solitary confinement is perhaps the most shockingly cruel condition of imprisonment in the United States, but the sheer scale of mass incarceration is also an issue in need of addressing. And because federal courts have the ability to affect policy at both the federal and state level, they can have considerable influence on the incarceration rate going forward.... "The new focus of prison conditions, which could be a real game changer in my view, is the intersection of overcrowding with mental and physical health burdens. The real game changer in terms of the current prison population is how disease-burdened it is," [Professor Jonathan] Simon says. "That could be pretty far-reaching because states have to contemplate the consequence of incarcerating so many aging prisoners."...

One way in which the courts could be more receptive to directly challenging sentences, she says, is by starting to take "collateral consequences" into account. That’s the technical term for the myriad ways that criminal convictions, and in particular sex crime convictions, can hamper defendants’ lives in the long term. That includes restrictions on where they can live after they’re released from prison, bans on government employment and benefits like public housing, inclusion on sex offender registries, bans on gun purchases and voting, and so forth....

Almost as explosive as Kennedy's 2015 concurrence was a dissent filed by Stephen Breyer and joined by Ruth Bader Ginsburg that same year. The case, Glossip v. Gross, resulted in a 5-4 ruling affirming that the particular drug cocktail Oklahoma currently uses in executions doesn't violate the Eighth Amendment. One dissent, by Sonia Sotomayor and joined by the Court's other three liberals, narrowly argued against the specific drugs. Breyer's dissent took aim at capital punishment as a whole....

It’s telling that neither Sotomayor nor Elena Kagan, the two other liberals on the Court, joined Breyer’s opinion. And it’s hard to imagine Merrick Garland, who was one of the prosecutors who successfully sought to see Timothy McVeigh executed, declaring his own past actions categorically unconstitutional. But if Garland’s nomination fails and Clinton picks a less tough-on-crime nominee for Scalia’s seat, or if Kennedy leaves the Court during her presidency, it’s conceivable there would exist five votes for outright abolition of the death penalty.

"I would not be surprised to see Sotomayor and Kagan supportive of [abolishing the death penalty]," Simon says. "Kennedy is a harder call. The reason I'm somewhat optimistic about including Kennedy goes back to his interest in dignity. The strongest of the opinions in Furman" — the 1972 case that briefly abolished capital punishment — "was William Brennan's, and Brennan based it most directly on human dignity. He argued the Eighth Amendment bans any punishment you can't carry out without respecting the dignity of those being punished." Kennedy leaned heavily on the importance of dignity in Brown v. Plata, the California prison overcrowding case....

One other death penalty–related case Simon thinks the Court could amend or overturn, which could have widespread implication outside this specific issue area, is McCleskey v. Kemp, a 1987 case in which the Court ruled 5-4 that a death sentence for a black defendant could not be overturned due to the state of Georgia's hugely disproportionate imposition of capital punishment on African Americans. The effect of that was to foreclose challenges to the criminal justice system premised on its discriminatory effect — the Court required that plaintiffs show that discrimination was intended, not merely that the system was in effect discriminating against African Americans.

"It's been terrible for equal protection law generally. Criminal justice is run through with very disproportionate racial practices that are very difficult to prove as discrimination," Simon says. "Overturning McCleskey, and a companion case a few years later, could be a really important change agent both in unleashing the potential for trial court challenges to racially disproportionate criminal justice practices of all sorts, and perhaps ending the death penalty in those states where it seems most firmly rooted, like Texas and Florida."

August 22, 2016 in Campaign 2016 and sentencing issues, Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, August 21, 2016

After court reversal of broader order, Virginia Gov to restory voting rights to 13,000 former felons on a "case-by-case" basis

This Washington Post article, headlined "Virginia’s McAuliffe to announce restoration of voting rights to 13,000 felons," report on the latest executive clemency move by a Governor eager to restore voting right after getting in trouble with his state's Supreme Court following his first bold effort. Here are the details and context:

Gov. Terry McAuliffe will announce Monday that he has restored voting rights to 13,000 felons on a case-by-case basis after Republicans and state Supreme Court justices last month stopped his more sweeping clemency effort.

McAuliffe’s planned action, confirmed by two people with knowledge of it, comes about a month after the Supreme Court of Virginia invalidated an executive order the Democratic governor issued in April. With that order, McAuliffe restored voting rights to more than 200,000 felons who had completed their sentences. McAuliffe said his original order would move Virginia away from a harsh lifetime disenfranchisement policy that hits African Americans particularly hard.

Republicans, incensed that it covered violent and nonviolent offenders alike, said the move was really a bid to add Democrat-friendly voters to the rolls ahead of November’s presidential elections, when the governor’s close friend and political ally, Hillary Clinton, will be on the ballot. Republicans also found the McAuliffe administration had mistakenly restored rights to 132 sex offenders still in custody and to several convicted murderers on probation in other states.

Contending that the governor had overstepped his authority by restoring rights en masse rather than case by case, GOP legislative leaders took him to court and won. Since 13,000 of the 200,000 felons had already registered to vote, the court ordered the state to once again put their names on its list of banned voters.

Immediately after that ruling, McAuliffe vowed to use an autopen to individually sign orders restoring rights. He promised to do the first 13,000 within a week and all 200,000 within two. “By the end of this week, I will have restored the rights of all 13,000,” McAuliffe declared last month.

Since then, the McAuliffe administration has acknowledged unspecified holdups but declined to provide a new timetable for restoring rights. The first hint came Friday, with the release of McAuliffe’s official schedule. At noon Monday, it said, he will appear at the Civil Rights Memorial on Capitol Square “to make major restoration of rights announcement.” A McAuliffe spokeswoman, Christina Nuckols, declined to provide more information.

McAuliffe will announce that he has restored voting rights to the 13,000 felons, making them free to register once again, according to the two people, who spoke on the condition of anonymity because they were not authorized to disclose his plans. McAuliffe also will lay out his plans for restoring rights to the remainder of the 200,000. A substantial majority of Virginians approve of McAuliffe’s original effort to restore felon rights, although they are closely split on his motivations, according to a new Washington Post poll....

Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia, said she would cheer another restoration plan — particularly one that restores rights before October, the registration deadline for voting in November. “We think it’s the right thing to do, and we’re hopeful it will get done in time for people to be able to register before the deadline,” she said.

Del. Robert B. Bell (R-Albemarle), a 2017 candidate for state attorney general who has led the charge against McAuliffe’s order, said he would watch any new restoration efforts closely because of the problems with the original order. “Given that his first order was unconstitutional and included a noncitizen sex offender in Peru, we will certainly want to review whatever he does on Monday very carefully,” Bell said.

Prior related posts:

August 21, 2016 in Clemency and Pardons, Collateral consequences, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Some surprising racial realities to discover when taking a deep dive into modern mass incarceration data

U.S._incarceration_rates_1925_onwardsA couple of folks have pointed me to this recent interesting analysis at Wonkblog by Keith Humphreys under the headline "Black incarceration hasn’t been this low in a generation." Here are some of the data and discussion that explain the headline (with links from the original):

The African American imprisonment rate has been declining for many years. Indeed, the likelihood of African American men and women being in prison today is lower than it was a generation ago ... [because the] rate of black male incarceration in the U.S. has declined by 23 percent from a recent peak in 2001 [and the] rate of incarcerated black women has decreased 49 percent since the recent peak of 1999....

In the 1990s, the explosive growth in imprisonment that began in the mid-1970s was slowing but still underway, affecting people of all races but African Americans worst of all.  But around the turn of the millennium, the African American imprisonment rate began declining year after year....

At the end of 2014, the African American male imprisonment rate had dropped to a level not seen since early 1993. The change for African American women is even more marked, with the 2014 imprisonment rate being the lowest point in the quarter-century of data available. It can’t be overemphasized that these are trends unique to blacks rather than being part of a broader pattern of de-incarceration: The white imprisonment rate has been rising rather than falling.

A 23 percent decline in the black male imprisonment rate and a 49 percent decline in the black female imprisonment rate would seem to warrant some serious attention. But if you point out to the average person or even a seasoned criminologist that the United States is at a more than 20-year low in the black incarceration rate, you are likely to be met with stunned silence.

These data should not be all that surprising for those who realize that the years from 1970 to 2000 marked the modern period with the most significant increase in incarceration rates for all Americans and particularly for African Americans.  Since 2000, the overall US prison population has not grown much, and overall prison populations and the rate of incarceration has even turned downward in recent years.  I believe that, during this more recent period of flat or declining prison growth, the emphasis in long prison terms less for drug offenders than for violent/sexual offenders has contributing to altering the racial mix of prison populations (perhaps epsecially in big states like California and Texas that have made big cuts in their prison populations).

That all said, these data should not obscure the reality that incarceration rates for black males remain extraordinarily high both in absolute and in relative terms throughout the United States.  Moreover, digging into state-by-state incarceration data highlights that some perhaps unexpected states rise to the top of an accounting of the rate and relative levels of minority incarceration.  A few months ago (as noted here), The Sentencing Project released this interesting report providing state-by-state analyses of the racial data for state prison populations, and here were some of the report's "Key Findings":

August 21, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

"Plea Bargaining and Price Theory"

The title of this post is the title of this interesting looking new paper authored by Russell Covey now available via SSRN.  Here is the abstract:

Like other markets, the plea bargaining market uses a pricing mechanism to coordinate market functions and to communicate critical information to participants, information that permits rational decisionmaking in the face of uncertainty.  Because plea bargaining play such a prominent role in the administration of criminal justice, and because the pricing mechanisms inherent in plea bargaining can — like pricing mechanisms generally — both explain past conduct by market participants and predict future conduct, close scrutiny of the pricing mechanisms at work in plea bargaining is amply justified.

This Article explores several features of the plea bargaining system in light of economic insights borrowed from basic price theory.  That analysis suggests several structural flaws of the plea market that could, in theory, be amenable to reform efforts.  Those flaws include an oversupply of penal leniency, overreliance on wholesale pricing mechanisms, and a devaluation of factual innocence from procedural time-constraints on the effective use of exculpatory evidence.

August 21, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Detailing the inefficacy of sex offender residency restrictions in Milwaukee

MJSOFFENDER21G2The Milwaukee Journal Sentinel has this lengthy new article about the problems created by a residency restriction for sex offenders in place in Wisconsin's largest city. The article is headlined "Sex offender ordinance hasn’t worked as planned, putting public at greater risk," and here are excerpts:

In the two years since Milwaukee leaders enacted the residency ordinance as a way to push sex offenders out of the city, little has gone as planned. Rather than reducing the number of sex offenders, the ordinance has put more than 200 of them in the street and failed to keep new offenders from moving into the city, a Journal Sentinel analysis has found.

Experts say the increase in homeless sex offenders could put the public at greater risk. Studies show that without a permanent home, the lives of offenders become more unstable, increasing the chance they will re-offend. “Somebody might feel safer today because this one person doesn’t live on their block. But as a community, we are not safer, and this is not sustainable,” said Holly Patzer, executive director of Wisconsin Community Services, a nonprofit advocacy group focused on criminal justice and public safety.

The ordinance bans many sex offenders from living within 2,000 feet of areas where children are commonly found, such as schools, parks and day care centers. In Milwaukee, that means hundreds of sex offenders are limited to 117 possible housing units. And even those 117 units might not be available to rent or buy.

When the Milwaukee Common Council voted 8-6 to approve the ordinance in 2014, supporters said it would protect the public by pushing more offenders out of the city and into the suburbs, where a disproportionately low number of the county’s offenders lived. Supporters also argued the extremely restrictive rules would send a message to lawmakers in Madison: that Wisconsin needs a statewide sex offender residency law, rather than a patchwork of local ordinances.

But an analysis of state and Milwaukee sex offender registries shows those goals haven’t been achieved since the vote:

■ The number of homeless sex offenders in Milwaukee County has spiked, rising from about 15 in early 2014 to 230 this summer. Milwaukee police officials warned in 2014 that homelessness would increase, but a lead sponsor of the ordinance, Ald. Tony Zielinski, said he didn’t believe them.

■ Milwaukee County suburbs continue to house a disproportionately low share of the region’s sex offenders. In fact, their proportion — about 10% of county offenders — is virtually unchanged since the ordinance was passed.

■ Hundreds of offenders deemed “affected” by the ordinance — and thus, effectively banned from living in Milwaukee — continue to reside in the city, flouting the ordinance and accepting periodic fines.

■ The ordinance hasn’t prodded the Legislature to enact a statewide sex offender residency law, though there is renewed optimism it could happen soon.

Ald. Michael Murphy, who sympathized with supporters of the 2014 ordinance but voted against it, voiced concern at the time that the measure would increase homelessness among sex offenders and cause a greater threat to public safety. Murphy said he’s “still very fearful” about the number of homeless offenders. “My concern is that these offenders will re-offend, and everybody will be pointing fingers,” he said.

Although the data suggests the ordinance hasn’t worked as expected, some local leaders said they have no plans to make any changes. Zielinski said the ordinance has protected residents and stopped some sex offenders from moving into local communities. However, he could not provide specific examples to support his view.

Zielinski also accused the Wisconsin Department of Corrections of “fudging the numbers” of homeless Milwaukee offenders. Likewise, he didn’t provide evidence to prove the allegation, saying only that the department has been slow to provide him with accurate data in the past. “I’d have to check those numbers, but I know we have prevented a number of serious sex offenders from moving to Milwaukee,” Zielinski said. “The only thing I can tell you for sure is that Milwaukee did the right thing. Otherwise, we would have continued to be a dumping ground for state sex offenders.”...

[In 2014] four aldermen proposed their own ordinance: sex offenders who met certain requirements couldn’t live within 2,000 feet of schools, day care centers, parks, recreational trails, playgrounds or areas where children are known to congregate. Any offender in violation could be fined $1,000 to $2,500 per day. The aldermen argued the ordinance was the city’s best hope of forcing state officials, who had largely ignored their concerns, to pass a statewide residency law. “Although this may be seen as a punitive measure, I’m hoping that this sends a shot across the bow to the ones who really control the whole system and methodology of how we place sex offenders (in) the state of Wisconsin,” then-Ald. Joe Davis Sr. said.

But officials from the state Department of Corrections and Milwaukee Police Department warned that rather than moving to the suburbs, many sex offenders would stay in the city and become homeless. In turn, they said, it would be difficult to track offenders and recidivism rates could rise. Then-police Inspector Carianne Yerkes told members of a council committee that she worried the city’s ordinance wouldn’t prod state leaders into action. “I don’t know how long we can wait for that, and I’m afraid of what will happen in between,” said Yerkes, who has since been promoted to assistant chief.

Ultimately, the council passed the ordinance, Mayor Tom Barrett signed it into law in July 2014, and the rules went into effect in October 2014. Two years later, the city is seeing the practical effects of the ordinance:

■ The percentage of homeless sex offenders in Milwaukee County has jumped from less than 1% in early 2014 to 9% in mid-2016, according to an analysis of Department of Corrections data. Most homeless offenders are still on GPS monitoring and have to check in weekly with the state, but they have no permanent residence.

■ Sex offenders haven’t moved out to the suburbs en masse, doing nothing to dispel the “dumping ground” perception. About 10.5% of the county’s offenders live in the suburbs now, compared with 11% in early 2014.

■ The city continues to add hundreds of new sex offenders, despite the new rules. Department of Corrections data shows that at least 380 Milwaukee sex offenders have either moved into the city or been added to the registry since early 2014. The city has about 100 more offenders today than it did in 2014....

The ordinance hasn’t forced sex offenders out of the city for two primary reasons: most sex offenders are exempt from the rules, and others have willfully violated them. Milwaukee Police Department data shows about three-quarters of offenders living in the city are exempt because they were grandfathered in, live with family or aren’t required to follow the ordinance because of the nature of their crimes. The Common Council wrote those exemptions into the ordinance.

Among the 620 offenders in the city who aren’t exempt, about 460 have city addresses, putting them in violation of the ordinance. The remaining 160 are homeless or don’t list addresses. Milwaukee police have issued tickets to most of the 460 offenders, generally fining them about $1,000 to $1,300 per incident. Dozens of other offenders have received warnings or notices of violation.

“When MPD discovers an offender in violation, enforcement action is taken,” the police department said in an email. But those citations — most of which were issued between December and June — haven’t been enough to force hundreds of offenders to leave the city. Several offenders have been issued three citations, yet they continue to reside in Milwaukee.

August 21, 2016 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Saturday, August 20, 2016

Notable academic pitch: "Don’t end federal private prisons"

Sasha Volokh has this interesting lengthy commentary explaining his negative response to the announcement this past week (discussed here) that the Justice Department plans to end its use of private prisons. I recommend the full piece (with all its links) for anyone interested in a serious understanding of modern prison policies and practices. Here is how it gets started:

Yesterday, the DOJ announced that it would gradually end its use of private prisons.  You can read the memo by Deputy AG Sally Yates here.  She writes: “I am directing that, as each contract [with a private prison corporation] reaches the end of its term, the Bureau [of Prisons] should either decline to renew that contract or substantially reduce its scope in a manner consistent with the law and the overall decline of the Bureau’s inmate population.”

Why?  The Yates memo says: “Private prisons . . . compare poorly to our own Bureau facilities. They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security.  The rehabilitative services that the Bureau provides, such as educational programs and job training, have proved difficult to replicate and outsource — and these services are essential to reducing recidivism and improving public safety.”

This is unfortunate, for two reasons.

First, Yates seems to be exaggerating what empirical studies tell us about private vs. public prison comparisons.  They do save money (though how much is a matter of dispute).  And they don’t clearly provide worse quality; in fact, the best empirical studies don’t give a strong edge to either sector.  The best we can say about public vs. private prison comparisons is a cautious “We don’t really know, but the quality differences are probably pretty minor and don’t strongly cut in either direction.”  The Inspector General’s report doesn’t give us strong reason to question that result.

Second, even if all the bad things people say about private prisons were true, why not pursue a “Mend it, don’t end it” strategy?  there’s a new trend in corrections to develop good performance measures and make payments contingent on those performance measures.  If the private sector hasn’t performed spectacularly on quality dimensions to date, it’s because good correctional quality hasn’t been strongly incentivized so far.  But the advent of performance-based contracting has the potential to open up new vistas of quality improvements — and the federal system, if it abandons contracting, may miss out on these quality improvements.

Just some (of many) prior posts about private prisons:

August 20, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

Is "tough-on-crime" talk really now a losing political strategy?

The question in the title of this post is prompted by this new Hill commentary authored by Holly Harris and Andrew Howard. Here are excerpts:

House Speaker Paul Ryan’s primary opponent, Paul Nehlen, frequently attacked Ryan’s support for criminal justice reform. Nehlen accused Ryan of pushing Obama’s agenda on jailbreak criminal justice reform policies.  Not only was Nehlen’s narrative wrong, his political calculus was flawed.  Ryan clobbered him on Election Day, winning the primary with more than 80 percent of the vote.

This isn’t the first time justice reform opponents, clinging to the old school thought that “tough on crime” rhetoric still sells with voters, have attempted to use their opposition to these reforms for political benefit.  What they got was the opposite, and here’s why.

First and foremost, it is conservatives in big red states like Texas, Georgia, and South Carolina who have led the way on justice reform issues for a decade.  These efforts yielded great success in safely reducing the prison population, saving significant taxpayer resources, and most importantly lowering crime and recidivism rates.

Texas Governor Rick Perry, Georgia Governor Nathan Deal, Oklahoma Governor Mary Fallin, and Kentucky Governor Matt Bevin are just a few of the conservative leaders who are the most ardent champions of, and effective spokespersons for, criminal justice reform.  Given all the state successes, President Obama’s support is actually a bit late to the party.

Republican U.S. Senator David Vitter, vying for conservative Louisiana gubernatorial seat, learned the hard way that attempting to tie his opponent to Obama’s criminal justice reforms was unproductive.  With support from law enforcement, John Bel Edwards doubled down on his push for “bipartisan” criminal justice reforms.  Edwards is now the Governor of Louisiana.

Additionally, polling data from dozens of states across the country shows overwhelming support across the political and ideological spectrum for criminal justice reform.  Replacing one-size-fits-all mandatory minimum sentences with penalties that reflect individual cases polls out the roof in battleground states like Michigan (91%) and Ohio (87%).

Surveys in states that will have hotly-contested Senate races such as Florida, Illinois, North Carolina, Nevada, and Speaker Ryan’s home state of Wisconsin show support for reform issues ranging from the 60s to high 80s. The smart political play is to embrace these reforms.

Doing otherwise could backfire. Just ask Alaska’s then-incumbent Senator Mark Begich.  In the state’s 2014 U.S. Senate race, Begich attacked his Republican opponent, Dan Sullivan, alleging he was soft on crime.  Sullivan emerged victorious over Begich and is currently serving as the junior senator from Alaska.

In a time when one in three American adults has a criminal record and every single American family is impacted by our broken justice system, supporting reform not only makes for sound policy but also smart politics.  Which is why this irrational fear of supporting federal legislation similar to the aforementioned state reforms is all the more baffling....

Paul Ryan’s trouncing of his ill-advised primary opponent could be a game changer.  After all, in the new era of smart on crime policy, reform opponents are 0-3.

August 20, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Friday, August 19, 2016

"The Firing Squad as a 'Known and Available Alternative Method of Execution' Post-Glossip"

The title of this post is the title of this timely article now available via SSRN authored by execution-method expert Deborah Denno. Here is the abstract:

In Glossip v. Gross, the United States Supreme Court’s most recent effort to review a state’s lethal injection protocol, the Court affirmed Oklahoma’s use of a drug called midazolam and also stressed that petitioners had failed to “identify a known and available alternative method of execution that entails a lesser risk of pain.”  This Article proposes that the Glossip Court’s “known and available alternative method of execution” requirement, however objectionable, adds another dimension to execution method challenges that attorneys must address.

As Justice Sonia Sotomayor’s dissent in Glossip notes, the requirement also strengthens the viability and suitability of the firing squad as an appropriate means of execution.  For example, the firing squad has a long history and world-wide application, making it a “known” method; it is also an easily “available” method, given the pervasive use of firearms in our society for purposes such as law enforcement and self-protection.  There is also ample evidence suggesting that the firing squad is currently the most humane and reliable method of execution and that it meets the “lesser risk of pain” standard.  

Indeed, the primary hurdle faced by advocates of the firing squad is the method’s “primitive” or “violent” image.  Yet this Article contends that there is no evidence that such an image is deserved, quite the contrary. Witnesses to modern firing squad executions describe a process that may be far more sterile in perception and procedure than lethal injection — a viewpoint that may come to be shared by the public and prisoners alike.  In Glossip, Justice Sotomayor’s dissent briefly yet convincingly touches on reasons why death row inmates may prefer the firing squad over lethal injection, marking the first time that a Justice proactively and favorably compared the firing squad — or any other execution method — to lethal injection.  Such practicality may with time trump perceived barbarity in favor of the firing squad as states are increasingly unable to obtain acceptable lethal injection drugs.

August 19, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6)

US Sentencing Commission finalizes its priorities for the guideline amendment cycle ending May 1, 2017

This new Federal Register notice from the US Sentencing Commission reports on the results of the USSC's meeting yesterday in which the Commission "identified its policy priorities for the upcoming amendment cycle."  Here are what I consider to be highlights from the fourteen listed priorities:

[T]he Commission has identified the following priorities:

(1) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c), and to develop appropriate guideline amendments in response to any related legislation.

(2) Continuation of its multi-year examination of the overall structure of the guidelines post-Booker, possibly including recommendations to Congress on any statutory changes and development of any guideline amendments that may be appropriate. As part of this examination, the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.

(3) Continuation of its study of approaches to encourage the use of alternatives to incarceration.

(4) Continuation of its multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction (e.g., “crime of violence,” “aggravated felony,” “violent felony,” “drug trafficking offense,” and “felony drug offense”) and the impact of such definitions on the relevant statutory and guideline provisions (e.g., career offender, illegal reentry, and armed career criminal), possibly including recommendations to Congress on any statutory changes that may be appropriate and development of guideline amendments that may be appropriate.

(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study....

(9) Study of offenses involving MDMA/Ecstasy, synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone), and consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study.

(10) Possible consideration of whether the weapon enhancement in §2D1.1(b)(1) should be amended to conform to the “safety valve” provision at 18 U.S.C. § 3553(f) and §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases)....

(14) Consideration of any miscellaneous guideline application issues coming to the Commission’s attention from case law and other sources, including possible consideration of whether a defendant’s denial of relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of §3E1.1.

August 19, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, August 18, 2016

"Justice Department says it will end use of private prisons"

The title of this post is the headline of this Washington Post report on some big news emerging from the US Department of Justice this afternoon.  Here is how the report starts:

The Justice Department plans to end its use of private prisons after officials concluded the facilities are both less safe and less effective at providing correctional services than those run by the government.

Deputy Attorney General Sally Yates announced the decision on Thursday in a memo that instructs officials to either decline to renew the contracts for private prison operators when they expire or “substantially reduce” the contracts’ scope. The goal, Yates wrote, is “reducing — and ultimately ending — our use of privately operated prisons.” “They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security,” Yates wrote.

In an interview, Yates said there are 13 privately run privately run facilities in the Bureau of Prisons system, and they will not close overnight. Yates said the Justice Department would not terminate existing contracts but instead review those that come up for renewal. She said all the contracts would come up for renewal over the next five years.

The Justice Department’s inspector general last week released a critical report concluding that privately operated facilities incurred more safety and security incidents than those run by the federal Bureau of Prisons. The private facilities, for example, had higher rates of assaults — both by inmates on other inmates and by inmates on staff — and had eight times as many contraband cellphones confiscated each year on average, according to the report.

August 18, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Poll suggests Californians will vote in November 2016 to mend rather than end the death penalty in their state

This new press release from the Institute of Governmental Studies at UC Berkeley, which is titled "IGS Poll Finds Support for Retaining Death Penalty," suggests that California voters have some strong preferences regarding competing death penalty ballot initiatives.  Here are the interesting details via the main text of the press release:

California voters oppose an effort to abolish the death penalty and strongly support a competing measure that would streamline procedures in capital cases, according to a new poll released today by the Institute of Governmental Studies at the University of California, Berkeley.

Respondents opposed the abolition measure 55.1 percent to 44.9 percent, while three out of four respondents supported the streamlining proposition, the survey found. Since the two measures conflict, if both should pass, the measure receiving more votes would take effect.

The poll used online English-language questionnaires to survey respondents from June 29 to July 18. All respondents were registered California voters, and the responses were then weighted to reflect the statewide distribution of the California population by gender, race/ethnicity, education and age. The sample size for the questions on the two death penalty initiatives was 1,506 respondents for one question and 1,512 for the other.

A stark partisan difference emerged on Proposition 62, which would abolish capital punishment and replace it with a sentence of life without the possibility of parole. Democrats supported the measure, 55.1 percent to 44.9 percent. Republicans overwhelmingly opposed it, 70.2 percent to 29.8 percent. Independents were also opposed, though by only 60.6 percent to 39.4 percent. By contrast, there was support across partisan lines for Proposition 66, which would streamline procedures in capital cases to speed up the resolution of those cases. Even among Democrats there was strong support (69.7 percent) for the measure, and support was even higher among independents (81.1 percent) and Republicans (85 percent).

A majority (60 percent) of African-Americans favored abolishing the death penalty, but among all other ethnic groups, most respondents opposed that proposal. Support for the death penalty was stronger among older people.

Interestingly, religious differences were reflected in views about abolishing the death penalty, but mostly that difference was related to whether the respondent was or was not religious, rather than to differences among various religious denominations. Among all religious groups there was majority opposition to eliminating the death penalty; only among the self-identified atheists and agnostics did most voters support abolition of capital punishment.

Prior related posts:

August 18, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Empirical SCOTUS highlights how sentencing cases of OT 15 already "have the greatest downstream effects" in lower courts

I just saw this fascinating new Empirical SCOTUS post by Adam Feldman titled "Five SCOTUS Decisions Making Waves in the Lower Courts." I was not at all surprised that three of the five cases making the list are sentencing cases (and the other two deal with criminal procedure matters), and here are snippets from the post providing the highlights:

[Supreme Court] rulings in many cases each Term go under the radar [because] they deal with less politically salient issues. Some of these cases, however, have the greatest downstream effects.

This post looks at five “sleeper cases” from this past Term that have made their major impact through the lower courts. The immediate significance of these decisions is in how they change or clarify rules and laws and consequently the trajectory of many lower court decisions. They are especially impactful in criminal cases as they tend to arise when dealing with rights of those accused or convicted of crimes.

The post ranks the cases based on the relative number of times they have been cited by a combination of federal and state lower courts (even though these decisions were made across several months of the Term, the number of times they were cited makes it unlikely that the variation in decision timing has a substantial effect on this list of cases).

5) Mathis v. United States, decided June 23, 2016 (75 lower court citations)...

4) Ross v. Blake, decided June 6, 2016 (107 lower court citations)...

3) Mullenix v. Luna (per curiam), decided November 9, 2015 (213 lower court citations)...

2) Montgomery v. Louisiana, decided January 25, 2016 (373 lower court citations) ....

1) Welch v. United States, decided April 18, 2016 (765 lower court citations) ...

My colleagues and students are certainly tired of hearing me claim that sentencing issues are often the most important public policy issues of this generation and that SCOTUS sentencing rulings are often the most consequential of all cases. Needless to say, these notable empirics is not going to reduce my tendency to aggrandize the issues and cases that are my own professional obsession.

August 18, 2016 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

New York Times editorial pushes for "Mercy on Texas’ Death Row" for condemned getaway driver

Today's New York Times has this notable new editorial discussing a notable capital case in Texas under the headline "Rare Chance for Mercy on Texas’ Death Row." Here are excerpts:

When it comes to capital punishment, there is not much official mercy to be found in the state of Texas.  As 537 death row inmates were executed there over the last 40 years, only two inmates were granted clemency.  The last commutation to life in prison occurred nine years ago, when Gov. Rick Perry, despite his formidable tally of 319 executions, chose to make an exception and spare a man convicted of murder under the state’s arcane and patently unfair “Law of Parties.”

This law in effect holds that someone waiting outside at the wheel of a getaway car deserves the same capital punishment as his associate inside who shoots and kills a store clerk.  This is the rough equation that now finds Jeffrey Wood on death row in Texas, 20 years after his involvement in just such a crime.  The actual killer was executed in 2002; Mr. Wood faces execution next Wednesday as a somehow equally culpable party, unless the state commutes his sentence to life in prison.

The Law of Parties has been on trial as much as Mr. Wood has in the arduous criminal justice process in which he faces death. With an I.Q. of 80 and no criminal history, Mr. Wood, who was 22 then, was initially found by a jury to be incompetent to stand trial. But the state persisted, and he was convicted in a slipshod proceeding in which no mitigating evidence or cross-examination was attempted in his behalf during the crucial sentencing hearing....

The theory underpinning the Law of Parties — that an accomplice deserves to die even though he did not kill the victim — has been abandoned as difficult to apply if not unjust in most state jurisdictions in recent decades.  It holds that an accomplice should have anticipated the likelihood of a capital murder and deserves the ultimate penalty.  Since the death penalty was restored in 1976, there have been only 10 executions in six states under accomplice culpability laws, in which defendants did not directly kill the victim, according to Texas Monthly.  Five of them have been in Texas. Jared Tyler, Mr. Wood’s lawyer, who specializes in the state’s death row cases, says he has never seen a sentence of execution “in which there was no defense at all on the question of death worthiness.”

This is just one of many grounds for the clemency that four dozen evangelical leaders have recommended to avoid a gross injustice. The state parole board would have to make this recommendation, with the final decision by Gov. Greg Abbott, who has not granted clemency in 19 executions.

The Law of Parties stands as a grotesque demonstration of how utterly arbitrary capital punishment is. The only true course for justice in Texas is for the law to be scrapped and Mr. Wood’s life to be spared.

UPDATE:  For more interesting and timely coverage of this case, check out this new Texas Tribune article headlined "State Rep. Leach Tries to Stop Jeff Wood Execution."  Here is how the article gets started:

It’s not often that a staunch conservative loses sleep over imposition of the death penalty, but state Rep. Jeff Leach, R-Plano, says he is up nights over the impending execution of Jeff Wood.

The two-term legislator has spent the past week poring over court documents and speaking with the governor’s office and Texas Board of Pardons and Paroles, hoping to prevent what would be the state’s seventh execution of the year. Wood is set to die by lethal injection Aug. 24.  “I simply do not believe that Mr. Wood is deserving of the death sentence,” Leach told the Tribune. “I can’t sit quietly by and not say anything.”

August 18, 2016 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Wednesday, August 17, 2016

Federal district judge assails prosecutors for not seeking more prison time for cooperators in government corruption cases

This local article from New Jersey, headlined "Judge blasts U.S. attorney during sentencing of Guttenberg contractor in theft," reports on a federal judge expressing concern that federal prosecutors are being too soft in sentencing recommendations in a notable white-collar setting.  Here are the details:

A federal judge repeatedly criticized the U.S. Attorney's Office in Newark during a hearing Wednesday, scolding prosecutors for seeking light sentences -- sometimes with no prison time -- for people who plead guilty to corruption and related offenses.

Before sentencing a Guttenberg contractor who conspired with Union City officials to steal federal housing funds, U.S. District Judge William H. Walls spent several minutes upbraiding the U.S. Attorney's Office for a "ridiculous" pattern of bringing corruption cases and then seeking lenient sentences for defendants who plead guilty.

"That is so ridiculous it makes no sense in the context of true law enforcement," Walls said from the bench. "This is sheer legal nonsense." "If you swindle the government, regardless of your status, you should go to jail," he added.

Despite his protests, Walls agreed in the end with prosecutors, who had filed motions to avoid mandatory sentencing guidelines, and sentenced the defendant in Wednesday's case to three years of probation instead of prison.

Walls, a senior judge appointed by President Bill Clinton, is also presiding over the corruption trial of U.S. Sen. Robert Menendez.  Attorneys for Menendez, D-Paramus, deny the charges and have sought to quash the indictment. Justice Department officials in Washington are handling that prosecution, not the U.S. Attorney's Office in Newark.

U.S. Attorney Paul Fishman has made corruption cases a hallmark of his tenure and his office is prosecuting Bill Baroni and Bridget Anne Kelly, two former associates of Governor Christie's who have been implicated in the George Washington Bridge lane-closure case.  Christie, who was U.S. attorney before Fishman, also made corruption cases a highlight of his term.

Since President Obama appointed him in 2009, Fishman has secured convictions for several top officials including the former chairman of the Bergen County Democratic Organization, Joseph Ferriero; a former Trenton mayor, Tony Mack; and the former chairman of the Port Authority of New York and New Jersey, David Samson, who is also a former New Jersey attorney general.

A spokesman for Fishman, in response to Walls's comments, noted that defendants who cooperate with prosecutors are entitled to "some consideration" at sentencing.  “It is firmly rooted in our system of justice that a defendant who admits his own guilt and cooperates in the government's investigation or prosecution of criminal conduct is entitled to some consideration at the time of sentencing," said Fishman spokesman Matthew Reilly.  "It is the prosecution's responsibility to bring that information to the attention of the court, and the court has the discretion to determine how much weight to give it.”

Darren Gelber, a lawyer at the Wilentz, Goldman and Spitzer firm and a former president of the Association of Criminal Defense Lawyers of New Jersey, said "Judge Walls has a reputation of being a tough sentencer."

"I'm sure he like others has become increasingly frustrated with the perception that corruption is all too prevalent in our state," said Gelber, who was not involved in Wednesday's case.

The U.S. Attorney's Office charged that Leovaldo Fundora, the owner of Falcon Remodeling of Guttenberg, conspired with two public officials in Union City to steal federal housing funds. The two Union City officials instructed Fundora to collude with two other businesses, which are unnamed in court papers.... Prosecutors estimated losses from the scheme between $120,000 and $200,000.

"I deeply regret what I have done," Fundora told the court as his wife and daughter sat behind him. "I know it's going to take a long time to get my reputation back, but I will try my best."  His attorney, Raymond Flood, said Fundora was a Cuban immigrant who had been working since he was 12 years old. "He's been a criminal for four years," Walls noted, "four years that he swindled the government."

Fundora pleaded guilty in 2013 and his theft conviction carried a maximum sentence of 10 years and a $250,000 fine.  At Fundora's sentencing hearing Wednesday, prosecutors recommended a much lighter sentence and Walls, despite his critical comments, agreed.  The U.S. Attorney's Office filed what is known as a "5K1.1" motion, asking the judge to depart from the federal sentencing guidelines to impose a lighter punishment on Fundora.  Walls sentenced Fundora to three years of probation, ordered him to pay $73,753 in restitution, and imposed a $2,000 fine.

"This is absolutely ridiculous and I will not do it again," Walls told the assistant U.S. attorney handling the case, Barbara Llanes.  Walls said businesses that win contracts from government agencies should hold themselves to a higher standard.  He suggested the U.S. Attorney's Office was more interested in getting favorable conviction statistics than pursuing tough punishments.  "The society is being swindled, and your office seems to care about notching wins," the judge told Llanes.

Responding to Walls's questions, Llanes noted that the two Union City public officials -- Johnny Garces and Washington Borgono, who both pleaded guilty -- have not been sentenced.  Prosecutors would not file "5K1.1" motions for them, she added.

August 17, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

Notable new posts about notable news at Collateral Consequences Resource Center

As regular readers know, I have made a habit of noting here some posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogoshere).  Here are just some of the many recent posts of note from CCRC:

August 17, 2016 in Collateral consequences, Who Sentences? | Permalink | Comments (0)

Noting that the 2016 major Prez candidates seem disinclined to say much about the death penalty

Donald-Trump-Hillary-ClintonThe Guardian has this lengthy new article providing an interesting take on the modern realities of presidential politics and capital punishment. The article is headlined "Politics and the death penalty: for Clinton and Trump, safest stance may be silence: Neither candidate seems keen to take on the controversial topic of capital punishment in the 2016 election, despite waning public support for it." Here are excerpts:

Donald J Trump phoned in to Fox & Friends in May 2015, shortly after two police officers were shot dead in Mississippi. Presenter Steve Doocy wanted to know what an appropriate punishment for the killers would be. “Well, it’s the death penalty,” Trump said airily.  “We have people who are, these two, animals who shot the cops … the death penalty, it should be brought back and it should be brought back strong.”

A month later, Trump announced he was running for president. He has barely said the words “death penalty” in public since, although a top adviser has called for Hillary Clinton’s execution, saying she “should be put in the firing line and shot for treason”.

Clinton only talks about capital punishment when pressed and then, clumsily. Unlike most of her own party — including running mate Tim Kaine — the Democrat supports death in the case of terrorists. She has said she would be happy if someone would outlaw execution. Someone else.

In campaign 2016, the safest stance on the ultimate punishment may be silence. Both candidates need to woo disaffected members of the other’s party.  Neither can afford to lose their own loyal base.  “Why bring it up if it’s going to stir the pot if you don’t have to?” said Sherry Bebitch Jeffe, senior fellow at the University of Southern California’s Sol Price School of Public Policy.

For the first time since 1972, the Democratic party platform advocates repealing the death penalty. Mainstream Republican opinion has begun to turn away from it, too. Executions and death sentences are down nationwide, while the number of exonerated death row inmates creeps upward.

The percentage of Americans who support the death penalty has been steadily declining since its high of 80% in the mid-1990s, although a comfortable majority — 61% according to Gallup, and 56% according to the Pew Research Center — still favor the use of capital punishment for a person convicted of murder.  And California — with the biggest death row in the country — could become the sixth state in recent years to do away with executions as voters there face dueling ballot measures in November, one to repeal the death penalty, the other to streamline it.

Trump has increasingly positioned himself as a law and order candidate. He doubled down on fear of immigrant criminals in his speech to the Republican national convention and recently said he supported “extreme vetting” of people from other countries. Yet he has so far shied away from promising grisly execution for murderers.  The main exception was a December speech to the New England Police Benevolent Association, a police officers’ union, in which he promised an executive order mandating death sentences for cop-killers. (This would not work out, in any case; mandatory death sentences were rendered unconstitutional by a 1976 supreme court decision.)...

The Republican platform, recently ratified at the party’s convention in Cleveland, contains just two sentences on the subject of capital punishment.  “The constitutionality of the death penalty is firmly settled by its explicit mention in the Fifth Amendment,” it says.  “With the murder rate soaring in our great cities, we condemn the Supreme Court’s erosion of the right of the people to enact capital punishment in their states.”...

In the 1980s and 90s, opposition to the death penalty was “political poison in most elections”, said Robert Dunham, executive director of the Death Penalty Information Center. “Now, you are seeing Republican legislators, many of them conservative Republicans, openly oppose the death penalty.”  Still, most of the decline in death penalty support comes from Democrats, according to a 2015 study by Pew Research Center.  Nearly 60% of Democrats oppose the death penalty, compared to just 25% in 1996.

Which may be part of the problem for Clinton, who was roundly criticized for her awkward responses to questions about the death penalty during the primary season. Both of her primary rivals — Vermont senator Bernie Sanders and former Maryland governor Martin O’Malley — opposed capital punishment. Now that the general election is under way, a Clinton challenge will be getting Sanders’ fervent and progressive supporters to the polls.

August 17, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2)

Tuesday, August 16, 2016

Ninth Circuit panel rules appropriations rider precludes federal prosecution of individuals in complaince with state medical marijuana laws

A Ninth Circuit panel today finally ruled in US v. McIntosh, No. No. 15-10117 (9th Cir. Aug. 16, 2016) (available here), on a series of appeals concerning "whether criminal defendants may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the United States Department of Justice from spending funds to prevent states’ implementation of their own medical marijuana laws." Here is a key passage from the heart of the opinion:

DOJ, without taking any legal action against the Medical Marijuana States, prevents them from implementing their laws that authorize the use, distribution, possession, or cultivation of medical marijuana by prosecuting individuals for use, distribution, possession, or cultivation of medical marijuana that is authorized by such laws.  By officially permitting certain conduct, state law provides for nonprosecution of individuals who engage in such conduct.  If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law providing for non-prosecution of individuals who engage in the permitted conduct.

We therefore conclude that, at a minimum, § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.

Some previous related posts:

August 16, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?

The question in the title of this post reflects my ambivalent reactions to this lengthy and interesting AP article headlined "Prosecution trend: After fatal OD, dealer charged with death." Here are excerpts:

He knew he was in trouble even before he read the text message: "Did u hear what hapnd 2 ed?"  Ed Martin III had been found dead in the bathroom of a convenience store, slumped over on his knees with a needle and a residue-stained spoon in his pocket.  He'd mainlined fentanyl, an opioid up to 50 times more powerful than heroin.  A pink plastic bag of white powder sat on the sink.

Michael Millette had heard. The overdose death of his friend, just 28, brought tears to his eyes.  But he was scared, too. He was Martin's dealer, the man who'd sold him his final fix.  In panic, Millette fled to Vermont.  But within a day he was back, selling again. He needed money for his own habit.

Now, though, police had a tip that "Mike on Main Street" had been Martin's dealer.  Undercover officers began watching his furtive deals on a pedestrian bridge behind his apartment; they secretly photographed his visitors.  After he sold drugs to an informant, they swooped in and arrested him.

That's when Millette earned a dubious distinction: He became one of a growing number of dealers around the nation to face prosecution for the fatal heroin and fentanyl overdoses of their customers.  He was charged not just with drug dealing, but with causing Martin's death.  Maximum penalty: life behind bars.

In many states, including Ohio, Maine, West Virginia and New Jersey, authorities grappling with an alarming surge in opioid abuse are filing homicide, involuntary manslaughter or related charges against dealers.  They argue the overdose deaths should be treated as crimes leading to stiff sentences that deter others — and deliver a measure of justice.

"We need to send that message that you can't sell things that are the functional equivalent of poison," says New Hampshire Attorney General Joseph Foster, whose state has witnessed an explosion in drug-related deaths in recent years....

Littleton is the essence of New England charm, with a white clapboard inn that has welcomed visitors since they arrived by stagecoach, a 19th-century opera house and even a bronze statue of Pollyanna, the fictional optimist whose author was born here.

But beyond the postcard image is the crime blotter police Capt. Chris Tyler sees every day. In recent years, he says, drugs have been linked to 85 to 90 percent of the major crimes — burglary, theft, armed robbery, forgery, identity fraud....  When heroin first took hold here around 2013, Tyler explains, "there was just a general sense of denial. That was something that happens in big cities where people fall between the cracks. It wasn't going to happen here. But unfortunately it has."

It's not just heroin, but cocaine, fentanyl and a resurgence of crystal methamphetamine.  In one seven-month stretch last year, there were three overdose deaths, all connected to fentanyl.  In May, a police informant was fatally shot; he'd allegedly cooperated in identifying dealers in the area.

In New Hampshire, drug-related deaths have soared from 163 in 2012 to a projected 478 this year.  Fentanyl is increasingly the culprit.  From 2011 to last year, deaths caused solely by the synthetic opioid exploded from five to 161, according to the state coroner's office.  In that same period, the number of deaths caused by fentanyl combined with other drugs, including heroin, rose from 12 to 122....

Millette, 55, had been linked to another young man's fatal fentanyl overdose, but the witness wasn't credible so police didn't pursue the claims.  Millette insists he never was a big-time dealer, just a desperate addict.  But Tyler notes he peddled fentanyl, heroin and cocaine to more than 30 customers.  His strongest stuff was called "the fire."

Millette says he wasn't sure what he'd sold Martin, only that it was stronger than heroin.  He never tested what he sold. "If he's going to do it to a friend, who else will you do it to?" Tyler says. "He was somebody who needed to be stopped."

The prosecution of Michael Millette was part of a new thrust against opioid dealing in New Hampshire. In the spring, the U.S. attorney's office and the state's attorney general formed a task force to pursue dealers who sell opiates that result in fatal overdoses.  So far, 56 cases are being investigated, says Benjamin Agati, senior assistant attorney general.  In July, his office trained law enforcement throughout the state on how to identify these deaths and work with special prosecutors on investigations.

Though New Hampshire isn't ruling out filing homicide charges if needed — a strategy used in some other states — Agati says his office is pursuing dealers based on a law in which it must show they knowingly provided a drug that resulted in death.  The heightened focus on dealers, he says, partly stems from a sense among social workers, pharmacists and rehab experts that "'we can't treat our way out this. We can't do this alone. There has to be some way to stem the supply.  That's one reason we're trying the new approach."

But is this the right strategy?  The legal community is divided. "I just don't think the ultimate responsibility lies with the person who sells another addict a drug," says Marcie Hornick, who was Millette's public defender.  "I find it so counterproductive that they think sending these people to prison for long periods of time is going to have any deterrent effect.  It's an easy fix and perhaps it satisfies part of the population.  In reality, they come out and don't have the tools or skills to return to society."

But James Vara, who prosecuted the case and now is the governor's special drug adviser, rejects suggestions this is a politically motivated plan without merit. "Say that to a family who lost their child, their son, their brother, their daughter," he says. "Say that to Ed Martin's two children who are without their father as a result of this."

I agree with the statement by the public defender that the "ultimate responsibility" for an overdose death lies with the drug user not the drug dealer. But, especially as the number of these OD deaths are skyrocketing and drug dealers are seemingly not deterred from selling deadly drugs even when customers end up dead, it is not obvious to me that prosecuting dealers for homicide really is "counterproductive" or that it will not have some beneficial deterrent impact.

One reason I am generally supportive of marijuana reform and often troubled by long mandatory minimum sentencing terms for drug trafficking is because I dislike the nanny-state paternalism I see in decisions to criminalize and severely punish behaviors that do not obviously inflict serious harms upon innocent victims.   But if and when drug dealers (whether on street corners or Big Pharma corner offices) are profiting from knowingly and recklessly selling a product that is regularly killing purchasers, my disaffinity for criminalization and significant punishment fades.

August 16, 2016 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (19)

Monday, August 15, 2016

Poll suggests Nebraska voters will reject legislature's rejection of death penalty

As this local article reports, "poll results released Sunday by death penalty supporters suggest a majority of Nebraska voters favor repealing the bill that ended capital punishment in the state last year." Here is more from this press report:

In the poll of 600 likely general election voters conducted Aug. 7-10, 47.8 percent said they would definitely vote to keep the death penalty and another 10.5 percent said they probably would vote to keep the death penalty, Nebraskans for the Death Penalty said. Combined, voters favoring a vote to repeal the bill outpaced voters in support of the bill eliminating the death penalty by a 58.3-30.3 percent margin. The poll's margin of error is 4 percent.

“If the election were held today, Nebraskans would vote in overwhelming numbers to repeal LB268 in order to keep the death penalty,” Don Stenberg, honorary co-chair of Nebraskans for the Death Penalty, said in a news release. Stenburg is a former Nebraska attorney general and current state treasurer....

In a response to the poll, a spokesman for Retain a Just Nebraska said residents of the state are tired of spending millions of dollars on a failed government program. “This is a flawed poll and should not be viewed as an accurate measurement of how Nebraskans view the death penalty," Dan Parsons said. "It’s a push poll that misleads Nebraskans into thinking they have no other option than getting rid of the death penalty. When in reality, the question that will appear on the November 8 ballot asks voters if they wish to replace the death penalty with life in prison.

"Our polling and numerous others across the country show that when given that choice, voters chose life in prison.”...

According to the survey, support for the death penalty is strong among men and women, across all of Nebraska’s congressional districts and among members of different political parties. The Legislature passed LB268 last year over a veto by Gov. Pete Ricketts, but a successful petition drive last summer blocked the law until voters have their say in November.

Helpfully, we will have an actual vote in a few months and so will not have to figure out whether this poll is accurate or not as a reflection of Nebraskan voters' perspective on capital punishment.

August 15, 2016 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Sunday, August 14, 2016

Former AG Eric Holder brags about his "too little, too late" approach to dealing with federal sentencing's myriad problems

Holder-covington-feature-heroEric Holder, who served as attorney general of the United States from 2009 to 2015, has this notable New York Times op-ed that I ultimately find more frustrating than encouraging. The article is headlined "Eric Holder: We Can Have Shorter Sentences and Less Crime," and here are excerpts that prompt my frustration (based on the dates I highlighed above, and related dates highlighted below, and a bit of inserted commentary):

The financial cost of our current incarceration policy is straining government budgets; the human and community costs are incalculable. Today, a rare bipartisan consensus in favor of changing drug-sentencing laws presents an opportunity to improve the fairness and efficiency of America’s criminal justice system. But to build on this coalition for reform, which includes senior law enforcement officials, we need action in Congress.

In February 2015, President Obama convened a group of lawmakers — including the Republican senators Chuck Grassley of Iowa and Rand Paul of Kentucky and the Democratic senators Dick Durbin of Illinois and Cory Booker of New Jersey — to build support for sweeping reforms. But the momentum has slowed thanks to opposition from a small group of Republican congressmen using language dredged from the past. One, Senator Tom Cotton of Arkansas, even claimed recently that “we have an under-incarceration problem.”

The Republican presidential nominee, Donald J. Trump, is now fanning fears about the level of crime in America, which is actually at historic lows [Ed Note: crime was at historic lows in 2014 and has recently been going up]. Such pandering is a reminder of how we got here in the first place....

Controlling for other factors, the United States Sentencing Commission found that between December 2007 and September 2011, black male defendants received sentences 20 percent longer than their white counterparts. From 1983 to 1997, the number of African-Americans sent to prison for drug offenses went up more than 26-fold, compared with a sevenfold increase for whites. By the early 2000s, more than twice as many African-Americans as whites were in state prisons for drug offenses....

The Justice Department has pioneered reform.  Three years ago, as attorney general, I established the Smart on Crime initiative to reduce draconian mandatory minimum sentencing for low-level drug offenses and encourage more investment in rehabilitation programs to tackle recidivism. The preliminary results are very encouraging. Over the last two years, federal prosecutors went from seeking a mandatory minimum penalty for drug trafficking in two-thirds of cases to doing so in less than half of them — the lowest rate on record. The initiative may not be solely responsible, but 2014 saw the first consecutive drop in the federal prison population in more than three decades, coinciding with a falling crime rate.

Those who argue that without the hammer of a mandatory minimum sentence defendants won’t cooperate are wrong — in fact, the rate of cooperation held steady under the initiative, and the rate of guilty pleas remained constant. The system remained effective and became fairer. Reform has not made us less safe....

Mandatory minimum sentences should be eliminated for many offenses, and where they are still applied, their length should be reduced. The legislative proposals necessarily reflect a compromise, but we must ensure that they go far enough: The judiciary needs greater discretion in imposing mandatory minimums, as do our prosecutors in seeking them. Given the absence of parole in the federal system, we should increase the amount of sentence-reduction credit available to inmates with records of good conduct. And all offenders, regardless of their designated risk level, should get credit for participating in rehabilitation programs....

There is still a disparity in sentencing for offenses relating to crack and powder cocaine, chemically identical substances. Given the policy’s differential racial impact, which erodes confidence in the justice system, this disparity must go. In the light of recent events, we can’t afford criminal justice policies that reduce the already fragile trust between minority communities and law enforcement agencies....

Whatever the outcomes of the bills before Congress and the presidential election, the Justice Department existing reforms must be preserved. Important as they are, all these initiatives have a bearing only on the federal justice system, which houses about 10 percent of the prison population.  For the federal effort to be a template for reform in the states, where most prisoners are detained, Congress must lead.

The nation’s lawmakers must stiffen their spines, ignore divisive language and schedule votes in this congressional session on reform legislation.  An opportunity like this comes once in a generation. We must not miss it.  The over-reliance on mandatory minimum sentences must come to an end.

I have emphasized dates here because I consider former AG Eric Holder (and his boss President Obama) to be among those who really should bear much responsibility if federal policy-makers miss what Holder calls a "once in a generation" opportunity for federal sentencing reform.  Tellingly, much of the incarceration data Holder stresses were well known and widely discussed when he assumed office in early 2009. (For example, in this Harvard Law & Policy Review piece from Fall 2008, I stressed the problems of modern mass incarceration and urged progressives to "mine modern movements in Constitutional and political theory to make new kinds of attacks on mass incarceration and extreme prison punishments" and to "be aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration.")  And yet, as Holder notes, he did not establish DOJ's Smart on Crime initiative until August 2013, and Prez Obama did not convene a group of lawmakers to push for reform in Congress until February 2015.

In other words, both Prez Obama and AG Holder fiddled while the federal sentencing system was still burning with tough-on-crime, mandatory-minimum "over-reliance" from 2009 to 2013 during the entire first Obama Administration Term.  And, critically, we should not lose sight of the important reality that Prez Obama's party controlled both houses of Congress until early 2011 and contolled the Senate until early 2015.  Moreover, the enduring and continued (misguided) opposition of Prez Obama and the Justice Department to mens rea reforms supported by the GOP establishment has arguably been the most critical roadblock to getting sweeping reform legislation enacted even now.

Last but not least, and as Holder reveals in this op-ed, federal prosecutors are still charging mandatory minimum drug sentencing provisions in near half of all drug cases (including in many crack cases where there is still a major, race-skewing sentencing disparity).  I suspect that when Holder says "mandatory minimum sentences should be eliminated for many offenses," he is largely referencing drug offenses in which no guns or violence were involved (where other mandatory minimums are applicable).  If Holder really believed that it would be sound and sensible to eliminate mandatory minimum sentences in such cases, he could have on his own included provisions in his Smart on Crime initiaitve to require line prosecutors to avoid charging under these statutes in all but the rarest drug cases rather than continuing to have these statutes still be applied in nearly half of all drug cases.

Sadly, I could go on and on and on about all the things former AG Holder could have and should have done while serving as U.S. Attorney General for six full years to deal with all the problems he now is quick to lament in the pages of the New York Times.  (Here it bears noting that he gets to write about these problems now from the safety of a corner office at a big DC firm where he is, according to this article, likely making more than $5,000,000/year, well over 20 times more than the hardest working federal prosecutors and federal defense attorneys make.)  Holder's closing sentiment urging federal lawmakers to "stiffen their spines" really gets my goat when his own spine struck me as so soft for his six years as Attorney General, and especially now that he gets to enjoy cashing in on the inside-the-Beltway privileges of allowing one's spine to blow back-and-forth with the prevailing political winds. 

August 14, 2016 in Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Saturday, August 13, 2016

"The Drug Court Paradigm"

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

Drug courts are specialized, problem-oriented diversion programs. Qualifying offenders receive treatment and intense court-supervision from these specialized criminal courts, rather than standard incarceration.  Although a body of scholarship critiques drug courts and recent sentencing reforms, few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts.

This Article explores the broader effects of the drug court movement, arguing that it created a particular paradigm that states have adopted to manage overflowing prison populations. This drug court paradigm has proved attractive to politicians and reformers alike because it facilitates sentencing reforms for low-level, nonviolent drug offenders that provide treatment-oriented diversions from incarceration.  Though reforms adopted within the drug court paradigm have contributed to stabilizing prison populations and have created a national platform to discuss mass incarceration, this paradigm has limits that may prevent long-term reductions in prison populations.  This Article identifies three limitations of the drug court paradigm: First, by focusing exclusively on low-level drug offenders, the approach detrimentally narrows analysis of the problem of mass incarceration; second, by presenting a “solution,” it obscures the ways that recent reforms may exacerbate mass incarceration; third, by emphasizing a focus on treatment-oriented reforms, this paradigm aggressively inserts the criminal justice system into the private lives of an expanding mass of citizens.

This Article locates the current frame’s origin in the drug court movement. Identifying this connection is important for two reasons: First, it provides new insight to how we define “success” in criminal justice, and why.  Second, it illuminates a growing tension between government actors and the general public’s appetite for criminal justice reforms that meaningfully reduce mass incarceration.

I am putting this article on my must-read list because the author is 100% right when noting that "few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts." Indeed, I have been surprised about how little active discourse about drug courts there has been in recent years in academic and policy circles.

August 13, 2016 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (6)

Friday, August 12, 2016

Highlighting the lowlights of the DOJ Inspector General report of federal private prisons

This Washington Post piece, headlined "Private federal prisons — less safe, less secure," provides a useful and effective summary of the findings of a significant recent Department of Justice report.  Here are the basics:

Private prisons — unsafe and insecure. That’s the picture emerging from a Justice Department Office of the Inspector General’s report that adds to a growing effort to take the profit out of penitentiaries.

The report’s central conclusion: “We found that, in most key areas, contract prisons incurred more safety and security incidents per capita than comparable BOP (Bureau of Prisons) institutions and that the BOP needs to improve how it monitors contract prisons in several areas.” Those key areas are contraband, incident reports, lockdowns, inmate discipline, telephone monitoring, grievances, drug testing and sexual misconduct.

“With the exception of fewer incidents of positive drug tests and sexual misconduct, the contract prisons had more incidents per capita than the BOP institutions in all of the other categories of data we examined,” the OIG said. “For example, the contract prisons confiscated eight times as many contraband cellphones annually on average as the BOP institutions. Contract prisons also had higher rates of assaults, both by inmates on other inmates and by inmates on staff.”

The private facilities held 12 percent of BOP’s prison population in December, almost 22,700 low-security immigrant adult males with 90 months or less on their sentences. Three companies have the contracts — Corrections Corporation of America (CCA), GEO Group, Inc. and Management and Training Corporation (MTC).

In their responses included in the report, each of the three cited their largely homogeneous inmates as a significant factor in prison misconduct. “Our experience has been that the criminal alien population housed in contract prisons has a higher rate” of inmates who pose a security threat, said CCA, the nation’s oldest and largest private prison company. GEO said the “criminal alien” population “responds as one to any issue, real or perceived.” MTC rejected the report’s findings: “Any casual reader would come to the conclusion that contract prisons are not as safe as BOP prisons. The conclusion is wrong and is not supported by the work done by the OIG.”

Like any business, private prison companies are in business to make money. That can lead to cost-cutting and under-staffing that promotes dangerous and unhealthy conditions. “In recent years, disturbances in several contract prisons resulted in extensive property damage, bodily injury, and even the death of a correctional officer,” said Inspector General Michael E. Horowitz. “Last year, we audited one of these contract prisons and found that it was regularly understaffed in crucial areas, including correctional officers and health services workers.”

Many inmates, nearly half in some places and largely Mexican, are serving time for immigration offenses. “This is due to a new trend in the past decade of criminally prosecuting people for reentering the country rather than merely processing them through the civil deportation system,” said Carl Takei, an attorney with the American Civil Liberty Union’s National Prison Project. “The result is that people serve sometimes-lengthy prison sentences in BOP custody before … going through civil deportation proceedings.”...

Like the private companies, BOP’s response to the report cautioned against comparing the private prison populations with those in federal facilities. Nonetheless, the agency agreed to the report’s four recommendations, including increased verification “that inmates receive basic medical services such as initial medical exams and immunizations” and “periodic validation of actual Correctional Officer staffing levels.”

The full DOJ Inspector General report, which runs 86 pages and is exciting titled "Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons," is available at this link.

August 12, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Thursday, August 11, 2016

Could "conservative Latinos religious groups" become a significant voice and force in death penalty debates (at least in California)?

The question in the title of this post is prompted by this intriguing new Fox News Latino article headlined "Conservative Latino religious groups make big push to end death penalty." Here are excerpts:

A growing number of conservative Latino religious groups are beginning to shift their position on capital punishment, due in large part to a belief among them that it disproportionately affects minorities. “Given studies on how the death penalty is meted out, particularly for people of color, if it’s not a level playing field, we need to speak out,” Reverend Gabriel Salguero, founder of the national Latino Evangelical Coalition (NaLEC) told Fox News Latino.

“The needle has moved for Latinos and evangelicals," Salguero said. "Botched executions and advancements in DNA science have awakened us to a moral response."

According to the latest figures from the Bureau of Justice Statistics, Latinos represent a larger portion of those on death row than they did in the past. Half of new Latino death row inmates were from California, bringing their total to 157 inmates, the most in the country. Hispanics now represent 13.5 percent of the U.S. death row population – up from 11 percent in 2000.

A study conducted by University of Nebraska-Lincoln psychology and ethnic studies professor, Cynthia Willis-Esqueda and her colleague, Russ K.E. Espinoza of California State University, Fullerton, found that white jurors were more likely to impose the death penalty in cases where the defendant was Latino and poor. A study in California found that those who killed whites were over 3 times more likely to be sentenced to death than those who killed blacks and over 4 times more likely than those who killed Latinos.

“There’s an almost impossibly disproportionate number of Latinos incarcerated – a third of the labor force has a criminal record,” Juan Cartagena, president and general counsel of Latino Justice (PRLDEF), told Fox News Latino. “There’s easy acceptance that the criminal justice system is a racially skewed system,” Cartagena said.

In June, the National Hispanic Leadership Agenda (NHLA), a coalition of 40 prominent Latino organizations, joined several bipartisan groups calling for the end to the death penalty, saying that Latinos are “directly affected by its injustices.”...

This November, the death penalty will be on the California ballot. Proposition 62 seeks to repeal the statute. “There’s been a shift, not just attributed to religion, but a heightened understanding of the death penalty and its implicit bias in the criminal justice system,” Thomas Saenz, president and general counsel of MALDEF, and a nationally recognized civil rights attorney, told Fox News Latino. “The time is right, but it’s a ballot with 17 measures on it. Whether the issue gets the attention it deserves, who knows,” he added.

Salguero said it made sense for clergy to lead the charge on the fight to end the death penalty. “We’ve been pro-life all along, but what does that mean? If even one innocent person is killed, it’s too many,” Salguero said....

“The gospel teaches us that crime has a place, but God has the last word," Salguero said. "We’re against the ultimate role. We have ministries in prisons. If anyone has a moral platform it is the clergy. I think in my heart of hearts we can do better than executing people." “Christ was an innocent man who was executed. If there’s a possibility that we execute one innocent person we should have pause.”

Because Latinos make up nearly 40% of the population in California, how they general cast their votes in this November's death penalty reform/repeal initiative battle is going to play a huge rule in the future of the death penalty in the state.  This press article from January 2016 reports on polling done around that time suggesting that Latino voters favored repealing the death penalty to speeding up executions by a margin of 54% to 42%.  If the opposition within the Latino community has continued to grow (and certainly if it reaches the typical 2-1 opposition found in polling of African Americans), I think the repeal efforts of abolitionists in California might have a pretty good shot at carrying the day.

August 11, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

"Public Defenders vs. Private Court Appointed Attorneys: An Investigation of Indigent Defense Systems"

The title of this post is the title of this intriguing empirical paper recently posted on SSRN authored by Yotam Shem-Tov. Here is the abstract (with one line emphasized by me):

Individuals facing criminal charges in the U.S. have a constitutional right to attorney representation.  If they cannot afford one, the court is required to appoint and finance a legal counsel. Indigent defense systems are usually composed of private court appointed attorneys and/or a public defenders’ organization.  I investigate the causal effect of being assigned a public defender as oppose to a private court appointed attorney on defendants’ trial outcomes using a new “twins design” identification strategy.

I argue and show empirically that in co-defendant cases, the decision of who is assigned to the public defender organization can be treated as close to a randomized experiment, which can be exploited to measure the effectiveness of court appointed private attorneys relative to public defenders.  Using data from all multiple defendant cases in federal courts between 2001-2014, I find that defendants assigned a public defender in co-defendant cases had slightly worse outcomes: a higher probability of being convicted, an average of three months longer expected prison sentence, longer court proceedings and a higher probability of reaching a plea bargain.  However, there is large heterogeneity in public defender effectiveness across federal districts ranging from a 13.8 month longer prison term to a 16.1 month shorter prison term.

I lack the empirical skills to question or assess the new “twins design” identification strategy used in this paper, and the full paper is full of challenging empirical jargon like "The main regression specications is Yit = B . PDi + aj(I) + X'it􀀀 + Eit".  That said, my first reaction is to be quite suspicious of these findings/conclusions due to (1) my own experiences and high regard for the work of nearly all federal public defenders, and (2) my own normative instinct that, at least for a significant number of federal defendants, experiencing "longer court proceedings and a higher probability of reaching a plea bargain" is not at all a marker of a "worse outcome."

August 11, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Second Circuit panel rules that district court lacks ancillary jurisdiction to expunge a valid conviction

As noted in this new post at the Collateral Consequences Resource Center, which is headlined "Federal expungement order reversed on appeal," the Second Circuit today ruled on the federal government appeal of former US District Judge John Gleeson remarkable ruling in Doe v. US, 110 F. Supp. 3d 448 (EDNY May 21, 2015) (discussed here) ordering expungement of old federal fraud conviction.  Here are excerpts from the majority opinion in Doe v. US, No. 15-1967 (2d Cir. Aug. 11, 2015) (available here):

We conclude that the District Court did not have jurisdiction over Doe’s motion pursuant to 18 U.S.C. § 3231 because Doe’s conviction was valid and the underlying criminal case had long since concluded....

Relying on Kokkonen, Doe argues that the District Court’s exercise of ancillary jurisdiction served to “vindicate its sentencing decree” issued in 2002. Appellee’s Br. 27. The District Court phrased the same point slightly differently by characterizing its original decree as having “sentenced [Doe] to five years of probation supervision, not to a lifetime of unemployment.” Doe, 110 F. Supp. 3d at 457.

We reject Doe’s argument.  The District Court’s sentence had long ago concluded and its decrees long since expired by the time Doe filed her motion.  Under those circumstances, expunging a record of conviction on equitable grounds is entirely unnecessary to “manage [a court’s] proceedings, vindicate its authority, [or] effectuate its decrees.”  Kokkonen, 511 U.S. at 380.  “Expungement of a criminal record solely on equitable grounds, such as to reward a defendant’s rehabilitation and commendable post‐conviction conduct, does not serve any of th[e] goals” identified in Kokkonen’s second prong. Sumner, 226 F.3d at 1014; see also United States v. Lucido, 612 F.3d 871, 875 (6th Cir. 2010) (holding that a district court lacked jurisdiction to consider a motion to expunge records of a valid indictment and later acquittal because “[t]hese criminal cases have long since been resolved, and there is nothing left to manage, vindicate or effectuate”).

August 11, 2016 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

If you really want to fully understand what DEA has done/what is changing and not changing about federal marijuana law and policy...

2000px-US-DrugEnforcementAdministration-Seal.svgyou have to check out these two new posts and materials linked therein from Marijuana Law, Policy & Reform for all the nuanced details:

If you do not have the time or inclination to read those posts, the DEA has this press release explaining these basics:

The Drug Enforcement Administration (DEA) announced several marijuana- related actions, including actions regarding scientific research and scheduling of marijuana, as well as principles on the cultivation of industrial hemp under the Agricultural Act of 2014....

DEA has denied two petitions to reschedule marijuana under the Controlled Substances Act (CSA). In response to the petitions, DEA requested a scientific and medical evaluation and scheduling recommendation from the Department of Health and Human Services (HHS), which was conducted by the U.S. Food and Drug Administration (FDA) in consultation with the National Institute on Drug Abuse (NIDA). Based on the legal standards in the CSA, marijuana remains a schedule I controlled substance because it does not meet the criteria for currently accepted medical use in treatment in the United States, there is a lack of accepted safety for its use under medical supervision, and it has a high potential for abuse.

In his letter to the petitioners, DEA Acting Administrator Chuck Rosenberg offered a detailed response outlining the factual and legal basis for the denial of the petitions.....

DEA announced a policy change designed to foster research by expanding the number of DEA- registered marijuana manufacturers. This change should provide researchers with a more varied and robust supply of marijuana. At present, there is only one entity authorized to produce marijuana to supply researchers in the United States: the University of Mississippi, operating under a contract with NIDA.  Consistent with the CSA and U.S. treaty obligations, DEA’s new policy will allow additional entities to apply to become registered with DEA so that they may grow and distribute marijuana for FDA-authorized research purposes.

August 11, 2016 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (10)

"The Obama Criminal Justice Reforms That Trump Could Undo"

The title of this post is the headline of this notable new Marshall Project piece by Eli Hager.  Here is how the piece sets up its "rundown of Obama’s efforts on criminal justice and how each of them could or could not be unraveled by a President Donald Trump":

Donald Trump has not said much about how he would handle matters of criminal justice if he is elected president.  Beyond a promise in his speech at last month’s Republican National Convention that “safety will be restored” in America — and a suggestion in December that he would seek the death penalty for anyone convicted of killing a police officer — the candidate has not articulated a policy agenda on issues such as the drug war, federal sentencing guidelines, community policing or clemency.

Yet Trump has made it clear what he will undo: the Obama administration’s executive actions and regulations, including those having to do with criminal justice.“You know, the great thing about executive orders is that I don’t have to go back to Congress,” he said at a campaign rally in Manassas, Va., on Dec. 2, according to the Daily Caller.

Experts on executive authority say the next president could absolutely — and immediately — rescind any and all executive orders made by President Obama during his eight years in office, including those tightening background checks, “banning the box” on federal job applications and banning the solitary confinement of juveniles in federal prisons.  “They can be overturned in one day, with the stroke of a pen,” said Susan Dudley, a professor of public policy at George Washington University and an expert on regulatory procedure.

Trump could also opt to slow-walk Obama’s policies — either by appointing cabinet officials who will not enforce them or by instructing his Justice Department to reprioritize which laws it will prosecute.  The department could also reach weakened, out-of-court settlements in the investigations that the Obama administration has launched into local police departments.

But other moves of Obama’s, from his pardons and commutations to his attempts to ease sentencing guidelines for drug offenders, will be harder to roll back.  “Trump could say he doesn’t want to pursue a certain policy anymore, but he can’t take away benefits and rights that have already gone out to people,” said Stephen Vladeck, a law professor at the University of Texas and an expert on constitutional law and the federal system.

August 11, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (0)

Wednesday, August 10, 2016

Eager for practitioner views (and others) on how the "Obama judiciary" may be transforming sentencing jurisprudence and practice

The request for comments, particularly from federal court practitioners, appearing in the title of this post is prompted by this recent Politico article headlined "Did Obama win the judicial wars? Liberals say he shied away from too many battles and ran into GOP roadblocks. But the result is still a transformation of U.S. courts." Here is one excerpt from the article highlighting its themes:

It’s not yet clear whether Obama’s judicial legacy will include a Justice Garland, who could swing the direction of the highest court for decades.  But even if the Garland nomination stalls, Obama has already reshaped the judiciary, not only the Supreme Court but the lower courts that hear more than 400,000 federal cases every year.  And the unprecedented move by Senate Republicans to deny Garland a hearing is just the most intense skirmish in a larger battle over Obama’s nominees, a battle that has transformed the politics of the judiciary in ways that will reverberate long after his presidency.

Ultimately, most of those battles over judges have really been about Obama, a nasty front in the larger partisan war that has raged throughout his presidency.  And as with most of the foreign and domestic policy battles of the Obama era, the result, after a lot of bellicose rhetoric and political brinksmanship, has been a lot of change.  Obama has already appointed 329 judges to lifetime jobs, more than one third of the judiciary, and they’re already moving American jurisprudence in Obama’s direction.  He got two left-leaning women onto the Court: Sonia Sotomayor, the first Hispanic justice, and Elena Kagan, his former solicitor general.  He also flipped the partisan balance of the nation’s 13 courts of appeals; when he took office, only one had a majority of Democratic appointees, and now nine do.  Just last week, two Obama appointees to the Fourth Circuit Court of Appeals struck down some of North Carolina’s strict new election law, calling it a discriminatory effort to stop blacks from voting.

Obama is a political pragmatist and a public advocate of judicial restraint, so he hasn’t nominated the dream judges of the left.  But he certainly hasn’t appointed the kind of Federalist Society conservatives that George W. Bush favored, so liberal activists — who have indeed put aside their misgivings and supported Garland — have mostly approved of his impact on the justice system.  His appointees have already taken the progressive side in cases involving issues like gay marriage and transgender bathroom choices, as well as cases involving his own health reforms and carbon regulations.  And they really are diverse; 43 percent of Obama’s judges have been women, shattering the old record of 29 percent under Bill Clinton, and 36 percent have been non-white, surpassing Clinton’s record of 24 percent.  Obama has appointed 11 openly gay judges, when before him there was only one.

I have a lot of thoughts about a lot of aspects of Prez Obama's likely judicial legacy, but I am disinclined to discuss this legacy at length until we find out in the coming months if Merrick Garland becomes the next Justice. In the meantime, though, I would be eager to hear views from criminal justice practitioners who spend any time in the federal courts as to how big a different the 327 judges Obama has appointed to lower courts have impacted sentencing jurisprudence and practice. As the Politico article details, the federal judiciary looks a lot different thanks to the diversity of Prez Obama's appointment, and I am now eager to hear from informed persons whether it also feels a lot different when it comes to sentencing decision-making.

August 10, 2016 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (0)

Reflections from those working hard to get their clients clemency

The National Law Journal has this notable new article headlined "Lawyers Reflect on Clemency Work After Obama Executive Action," and here are excerpts:

When President Barack Obama commuted the sentences last week of 214 nonviolent drug offenders, he changed the lives of many inmates who may never have expected to leave prison.  The action also had a profound impact on defense lawyers involved in pursuing the clemency petitions that the president has now granted.

When criminal defense attorney James Felman calls down to the Cole­man Penitentiary in Florida to inform his clients that their clemency petitions have been granted, he said the experience is sometimes a little awkward. Surrounded by guards in the warden's office­­ — where prisoners are typically brought if they are in trouble or a loved one has died — the inmate may not exactly feel free to celebrate, Felman said. "It's not like they can start dancing," he said.

Felman, a partner at Kynes Markman & Felman in Tampa, saw five of his clients granted clemency on Aug. 3, when President Barack Obama commuted the sentences of 214 inmates — the highest number a president has ever granted in a single day.  The move comes amid a broader effort by the president to reduce sentences for nonviolent drug offenders.  Since 2010, Obama has granted 562 commutations and 70 pardons, more commutations than the last nine presidents combined.

Of Felman's clients to receive clemency last week, all were men convicted on nonviolent drug charges.... "You can't imagine a more rewarding experience as a lawyer," Felman said.

Felman, whose firm has successfully advocated for 12 clemency petitions, served as the chair of the American Bar Association Section of Criminal Justice from 2014 to 2015, and is a member of the steering committee for the Clemency Project 2014, a working group of lawyers who review clemency petitions.  Through the project, inmates who qualify for clemency under the guidelines are assigned a lawyer, who works the case pro bono....

Marjorie Peerce, a New York partner at Ballard Spahr and a member of the project's steering committee, has been involved with the project since its inception, and supervises about 100 lawyers at her firm who work these cases.  She estimated that the project had submitted about 1,500 petitions to the U.S. Office of the Pardon Attorney and had about 4,000 lawyers volunteering, both from criminal defense backgrounds and from unrelated fields. "The private bar really stepped up," Peerce said.  Her firm had three clients granted clemency on Aug. 3, but she declined to discuss their cases specifically.

Sherrie Armstrong, a Washington environmental lawyer at Crowell & Moring, worked on behalf of Stephanie George, who had her life sentenced commuted in December 2013.  Armstrong worked with George's sister to collect recommendation letters, including letters from a community pastor, an interested employer and George's children. Armstrong added that the writing style demanded by these clemency petitions differs from that of her normal style as an environmental lawyer.  "You're not writing for a court.  It's a more persuasive, emotional appeal," she said.

August 10, 2016 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, August 09, 2016

As federal prosecutors urged, former Gov Blagojevich resentenced to same 14-year prison term despite a few vacated convictions

As reported in this Wall Street Journal piece, a "federal judge on Tuesday refused to reduce a 14-year prison sentence handed down to former Illinois Gov. Rod Blagojevich" at his resentencing. Here are more details on why and how Blago was resentenced earlier today:

“The fabric of this state is torn,” said U.S. District Judge James Zagel, adding that “the fault lies with the governor and no one else” for his lengthy sentence. The former governor, 59, now will have 10 years left to serve of his prison sentence.  Mr. Blagojevich — appearing via video feed from a prison in Colorado with his once-black hair turned grayish-white — appeared stunned and shook his head as the judge delivered his decision.

Mr. Blagojevich had appealed for a reduced sentence of just five years after an appeals court last year threw out five of the original 18 counts for which he was found guilty. In court on Tuesday, his lawyer Len Goodman argued that his case was “significantly different” after the appellate court’s ruling. Mr. Goodman also argued that Mr. Blagojevich wasn't acting inappropriately for personal gain, but to acquire political muscle and therefore should serve a shorter sentence.

“He never took a bribe,” said Mr. Goodman, speaking in court. “He bought his own clothes; he bought his own baseball tickets.” Mr. Blagojevich, speaking to the court via a blurry video feed, apologized for his mistakes and for his actions in his time as governor. “I recognize that it was my words and my actions that have led me here,” he said, with his family present in court. “I’ve made mistakes and I wish I had a way to turn the clock back.”...

Both his children addressed the court Tuesday, saying that their father was a good man and that their family was suffering greatly from his absence. They both broke down in court upon hearing the judge’s sentence. Mr. Goodman also submitted a series of letters to the court written by prisoners who were serving time with Mr. Blagojevich, all of whom said he was an inspiration who was helping them through their sentences and teaching them useful skills, including how to prepare for a job interview.

Judge Zagel said that Mr. Blagojevich’s good behavior in prison was “not especially germane” to his decision and that the same circumstances remained from when he rendered the sentence in 2011.

Speaking after the sentencing, Patti Blagojevich, the former governor’s wife, said that his family finds the sentence “unusually cruel and heartless and unfair.”

“I am dumbfounded and flabbergasted at the inability of the judge to see that things were different” than before, she said.

I would assume that the former Gov may now appeal this newly-imposed 14-year prison term. Depending upon how the full sentencing record now shapes up, it seems at least possible that a Seventh Circuit panel might give a hard look at the reasons given by the district judge here for not changing the sentence at all this time around.

Some older related posts on the Blagojevich case:

August 9, 2016 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (7)

Finding (substantive?) due process violation, federal district judge refuses to apply statutory mandatory minimum made applicable by government stash-house sting

A helpful reader alterted me to a very interesting new federal sentencing opinion authored by Gerald Austin McHugh, Jr. in US v. McLean, No. 13-CR-487 (ED Pa Aug. 8, 2016) (available here). The full 29-page McLean opinion is a must-read for all persons interested in federal drug sentencing and dynamic views on sentencing limits that might be found in the Fifth Amendment's Due Process Clause. The opinion's introduction highlights why this decision is so interesting (and might make for a very interesting case to watch if federal prosecutors appeal to the Third Circuit):

The latitude given to federal authorities in charging drug offenses has been described as creating a “terrifying capacity for escalation of a defendant's sentence.”1 [FN1: United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993).]  This case exemplifies that reality, as a defendant caught by an undercover “sting” operation faces a Guideline sentence of 35 years to life imprisonment, with a mandatory minimum sentence of 25 years, because of a professed willingness to rob a drug stash house that was invented entirely by Government agents, containing a fictional amount of drugs chosen by those agents.  At sentencing, Defendant Clifton McLean argued that his sentence should be reduced because the Government improperly inflated his culpability by choosing a quantity of drugs — 5 kilograms of cocaine — that would trigger such a high mandatory minimum.

In an earlier opinion, I described the historical background of ATF “sting” cases, and concern among both judges and commentators over the consequences of this particular law enforcement tactic.  United States v. McLean, 85 F. Supp. 3d 825 (E.D. Pa. 2015).  Although I denied Defendant’s Motion to Dismiss the Indictment, resulting in his trial and conviction, as to this issue, I agree that imposing the sentence prescribed for the quantity of cocaine charged would violate his constitutional right to Due Process of Law on the facts of this case.  I have as a result imposed a sentence that excludes consideration of the amount specified by the Government, imposing only two of the three mandatory minimums for the reasons that follow.

August 9, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

"Put Away The Pitchforks Against Judge Persky"

The title of this post is the headline of this lengthy new Politico commentary authored by Lara Bazelon, which carries this sub-headline "Yes, he gave Stanford rapist Brock Turner a break. But to recall him would be to overturn our legal system."  Here is how the commentary, which merits a full read, gets started:

On this we can all agree: Brock Allen Turner, a blonde-haired, blue-eyed, one-time All-American Stanford freshman swimmer, is stone cold, beyond-a-reasonable-doubt guilty of committing a violent sexual assault against an unconscious woman behind a dumpster. Because what Turner did was brutal, criminal and depraved, and because of his utter lack of remorse—much less insight into his behavior—he should have gone to prison.

But the reaction to the lenient sentence given to Turner by Santa Clara County Superior Court Judge Aaron Persky is, frankly, frightening, dangerous and profoundly misguided.

In a charge spearheaded by Stanford law professor Michele Dauber — a close friend of the victim’s family — an effort is underway to recall Persky from office.  Sixteen state legislators have demanded that the California Commission on Judicial Performance investigate Persky for misconduct. Over a million members of the feminist organization UltraViolet signed an online petition voicing their agreement.  The group also hired a plane to fly over Stanford during graduation carrying a banner that said, “Protect Survivors. Not Rapists. #PerksyMustGo,” and paid for a billboard on a nearby, high-traffic freeway that sends the same message.

Earlier this summer, prosecutors filed a motion to disqualify Judge Persky from presiding over another sexual assault case involving an unconscious victim — a sedated patient allegedly fondled by a nurse.  More recently, Persky came under fire once again for imposing a three-year sentence on a Latino man who committed an assault, that, on the surface at least, seemed similar to Turner’s.   But unlike the Turner case, the sentence was imposed after the defense and the prosecution agreed to it.  Nevertheless, the mob pounced. It was yet another sign, they said, of Persky’s bias toward white, affluent men — presumably the only kind of person he was able to relate to.  Dauber told NPR, “Hopefully, a qualified woman will replace him.”

As a law professor well-versed in the vital importance of an independent judiciary, Dauber should know better. Removing a judge — never mind investigating him for misconduct — because of a single bad decision undermines the rule of law.  It sends a chill down the spines of elected judges everywhere, which is nearly every judge in the state court across the United States.

I am pleased to see someone talking about rule-of-law concerns if/when folks get heavily invested in seeking to recall a judge for what is viewed as a bad ruling. But I actually think the Brock Turner case serves as even more of an object lesson in how hard it will be to fully address modern mass incarceration in the United States when there are still so many powerful and prominent Americans who are eager to devote time and energy to vindicate and operationalize the view that lengthy terms of incarceration are the only "fitting" form of punishment for many crimes and many defendants.

Some prior related posts:

August 9, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Highlighting the notable absence of criminal trials in a high-profile federal district court ... thanks to the modern "trial penalty"

Jury1Yesterday's New York Times had this article on the modern reality of negotiated federal criminal justice headlined "Trial by Jury, a Hallowed American Right, Is Vanishing."  Here are excerpts:

The criminal trial ended more than two and a half years ago, but Judge Jesse M. Furman can still vividly recall the case.  It stands out, not because of the defendant or the subject matter, but because of its rarity: In his four-plus years on the bench in Federal District Court in Manhattan, it was his only criminal jury trial.

He is far from alone. Judge J. Paul Oetken, in half a decade on that bench, has had four criminal trials, including one that was repeated after a jury deadlocked.  For Judge Lewis A. Kaplan, who has handled some of the nation’s most important terrorism cases, it has been 18 months since his last criminal jury trial.  “It’s a loss,” Judge Kaplan said, “because when one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal jury trials, that is happening less frequently.”

The national decline in trials, both criminal and civil, has been noted in law journal articles, bar association studies and judicial opinions.  But recently, in the two federal courthouses in Manhattan and a third in White Plains (known collectively as the Southern District of New York), the vanishing of criminal jury trials has never seemed so pronounced.  The Southern District held only 50 criminal jury trials last year, the lowest since 2004, according to data provided by the court.  The pace remains slow this year.

In 2005, records show, there were more than double the number of trials: 106. And decades ago, legal experts said, the numbers were much higher. “It’s hugely disappointing,” said Judge Jed S. Rakoff, a 20-year veteran of the Manhattan federal bench. “A trial is the one place where the system really gets tested.  Everything else is done behind closed doors.”

Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences.  “This is what jury trials were supposed to be a check against — the potential abuse of the use of prosecutorial power,” said Frederick P. Hafetz, a defense lawyer and a former chief of the criminal division of the United States attorney’s office in Manhattan, who is researching the issue of declining trials.

Julia L. Gatto, a federal public defender, recalled the case of Oumar Issa, a Malian arrested in Africa in a 2009 sting operation on charges of narco-terrorism conspiracy, which carried a mandatory minimum 20-year sentence, and conspiring to support a terrorist organization, which had no minimum.  Although Ms. Gatto and her client believed that elements of the case were weak and that there were strongly mitigating circumstances, Mr. Issa concluded that the risk of going to trial was too high.  He pleaded guilty in 2012 to material support, with prosecutors dropping the other charge.  He received 57 months in prison. “It was the only thing he could do,” Ms. Gatto said. “His hands were tied.”

In 1997, according to federal courts data nationwide, 3,200 of 63,000 federal defendants were convicted in jury trials; in 2015, there were only 1,650 jury convictions, out of 81,000 defendants....

Judge P. Kevin Castel, who helped to organize the court’s 225th anniversary celebration in 2014, recalled taking a friend, Mary Noe, a legal studies professor at St. John’s University, to see an exhibit of courtroom illustrations documenting Southern District trial scenes of past decades.  But as they reached the end, Professor Noe observed that the sketches of more recent defendants, like Bernard L. Madoff and the would-be Times Square bomber Faisal Shahzad showed them pleading guilty.  “I was like, what happened to the trials?” she recalled.

Judge Analisa Torres said she had felt the difference ever since joining the federal bench in 2013.  Judge Torres, a former state court judge who handled about two dozen criminal trials a year in Manhattan and the Bronx, said she has since had just a few such trials. “It’s day and night,” she said. On the state bench, she said, she spent her entire day in the courtroom but for the lunch hour. “Now, I am in chambers all day long.”

This article rightfully suggests that the vanishing jury trial is a sentencing story related to the distinctive severity of federal statutes and guidelines and the impact of the modern "trial penalty" in federal courts. Competent defense attorneys have to tell their federal clients that the decision to test the government's evidence at trial will almost always risk adding years, if not decades, to any eventual federal sentence on any charge that produces a conviction.

It is ironic, but not really surprising, that this problem has only gotten worse since the Blakely and Booker SCOTUS rulings a decade ago made much of a defendant's Sixth Amendment right to a jury trial.  Had the Booker court adopted a "jury trial" remedy to "fix" federal guideline sentencing rather than the advisory remedy, we likely would have seen an increase in jury trials focused on specific guideline enhancements (especially in fraud and other kinds of high-profile cases more common in the Southern District of New York).  In addition, modern federal sentencing doctrines that diminish the need for and significance of jury determinations — like guideline anhancements based on "acquitted conduct" and "uncharged conduct" and "relevant conduct" — would be no more.

It is also disconcerting, but not surprising, that federal district judges are now so quick to lament the lack of jury trials, but are still so slow to explore their powers and opportunities to encourage more trials.  Though subject to some legal uncertainty (and sure to generate some federal prosecutorial pushback), federal judges still could today consider requiring limited jury trials to aid the resolution of any major factual disputes that have major guideline sentencing consequences.  Notably, in other high-profile settings, especially with respect to the death penalty and fraud sentencings and collateral consequences, SDNY federal district judges have been willing to test the reach and limits of thier judicial authority to move the law forward as they see fit.  If these judges really lament the vanishing criminal trial so much, they can and should be more aggressively exploring just what they might be able to do about this problem.

August 9, 2016 in Blakely Commentary and News, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Monday, August 08, 2016

Great coverage and analysis of Prez Obama's recent clemency work at Pardon Power

Regular readers and/or hard-core clemency fans know that P.S. Ruckman over at the Pardon Power blog is a must-read whenever President Obama's gets his clemency pen out. Here are just some of many recent posts discussing the historic number of commutations that Prez Obama issued last week (basics here), and responding to some notable recent criticisms of what the Prez is up to:

August 8, 2016 in Clemency and Pardons, Data on sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Broad perspectives on the narrowness of recent federal clemency and sentencing reform efforts

Two of my favorite lawprof colleagues, Erik Luna and Mark Olser, remind me why they are among my favorites through this new Cato commentary titled "Mercy in the Age of Mandatory Minimums." Here are excertps:

Recently, we stood in a backyard eating barbecue with a man named Weldon Angelos.  He was only a few weeks out of federal prison, having been freed some four decades early from a 55-year sentence for selling a small amount of marijuana while possessing firearms.  Weldon was not among the 562 inmates whose sentences were commuted by President Obama, including Wednesday’s historic grant of commutation for 214 nonviolent prisoners. Instead, Weldon’s release was made possible through a negotiated motion by the government that, alas, cannot be replicated in other cases.

For a dozen years, Weldon had been the poster boy of criminal justice reform for liberals and conservatives alike. His liberation is cause for celebration for those who believed the punishment did not fit the crime.  Nonetheless, the Angelos case remains a cautionary tale about both the inherent ruthlessness of “mandatory minimum” terms of imprisonment and the ineffectiveness of the Obama administration’s clemency initiative.

Mandatory minimum laws bar the consideration of facts upon which a sentencing judge would normally rely.  In Weldon’s case, the law compelled a 55-year sentence.  It didn’t matter that Weldon was a first-time offender with no adult record or that he was the father of three young children.  Nor did it matter that he never brandished or used the firearms and never caused or threatened any violence or injury....

Most of all, it did not matter that the sentencing judge — a conservative Bush appointee known for being tough on crime — believed that the punishment was “unjust, cruel, and irrational.”  Ultimately, the judge was bound not only by the mandatory minimum statute but also the Supreme Court’s jurisprudence, which largely acquiesces to prosecutors’ charging decisions while providing almost no check on excessive prison terms.

Absent a doctrinal reversal by the Supreme Court (don’t hold your breath), any meaningful safeguard against misapplication of mandatory minimums will have to come in the form of legislation from Congress or from the president through the application of the clemency power.  As for the former, lawmakers are considering several [reform] bills... [that] are entirely laudable, but they are also quite modest.  Indeed, the Senate bill passed in April expands some mandatory minimum provisions and adds a couple of new ones to the federal code....

The positive aspects of the reform bills should be supported all the same.  Sadly, legislative efforts appear to be mired in an intramural fight among Republicans, as well as hindered by Democratic intransigence toward another worthy reform, namely, a requirement that law enforcement prove a culpable mental state rather than holding defendants strictly liable.  Until lawmakers can agree on a means to prevent draconian sentences, clemency will remain the only remedy for such miscarriages of justice.

Unfortunately, the federal clemency system is also dysfunctional.  Weldon’s petition for clemency was filed in November 2012 — and it then sat, unresolved one way or another, for three-and-a-half years.  The support for the petition was unprecedented, spanning activists, academics and experts from every political camp imaginable.  While Weldon is not wealthy and could not afford high-priced lobbyists or attorneys, the facts of his case drove the story onto the pages of leading news outlets.  Yet nothing happened.  Even when the Obama administration launched the “Clemency Project 2014” and Weldon’s case was accepted into that program, he languished in prison as the petition slogged through the seven vertical levels of review any successful clemency case must navigate.

Clemency is meant for cases like Weldon’s, where the requirements of the law exceed the imperatives of justice.  The fact that a case like his cannot receive clemency from an administration dedicated to expanding the use of this presidential prerogative lays bare the root problem we face — too much process and bureaucracy coursing through a Department of Justice that bears a built-in conflict of interest....

It was thrilling to see Weldon free, eating off of a paper plate in the light of a Utah evening.  He is just one of many, though, and systemic reform of both mandatory minimums and the clemency process should be an imperative for this and the next administration.

August 8, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Clemency and Pardons, Criminal justice in the Obama Administration, Examples of "over-punishment", Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, August 07, 2016

Two midsummer New York Times editorials lamenting federal sentencing nightmares

In Act 1 of Scene 1 of The Bard's famous summer comedy, Lysalnder notes that "The course of true love never did run smooth."  And in Act 4 of Scene 1 of his play set in a watery city, Portia explains that "The quality of mercy is not strained."  These two literary references came to mind after I saw these two New York Times editorials, which might be headlined "The course of sentencing reform has not run smooth" and "The Justice Department has strained to show quality mercy."  Here are the editorial's true headlines and key passages:

"Holding Sentencing Reform Hostage"

An opportunity to pass the most significant federal criminal justice reform in a generation may be slipping away — despite the tireless efforts of many top Republicans and Democrats in Congress, as well as a rare exhortation from President Obama during last month’s State of the Union address....

The sentencing reform legislation is not perfect, but it represents remarkable progress in what is often a harsh, oversimplified debate about crime and punishment in America.  It should not be weakened, either by narrowing its reach or by sneaking in an unrelated mens rea provision.

Throughout all of this, red and blue states around the country continue to take big, bold steps to reduce state prison populations by shortening sentences and giving inmates returning to society a real chance to succeed.  Congress should be racing to catch up. 

"Mercy Is Far Too Slow at the Justice Department"

The country needs a variety of mechanisms for reducing unreasonably long sentences.  And the Justice Department, which has considerable latitude in these matters, needs to do more within the course of its regular operations to deal with the legacy of sentencing policies that have been recognized as destructively unfair....

The Sentencing Reform Act of 1984 authorizes the bureau to ask a federal judge to reduce an inmate’s sentence when there are “extraordinary and compelling” reasons for doing so.

That provision is typically used for elderly or gravely ill inmates. But the bureau has the ability to define the term as it sees fit, which means that the program could cover people who were unfairly sentenced as well. The agency has, however, done virtually nothing on this front.  The Justice Department’s Office of the Inspector General was sharply critical of the bureau in a 2013 report, noting that the agency did not “have clear standards on when compassionate release is warranted,” which led to ad hoc decisions.

The United States Sentencing Commission took up this issue in April, when it broadened compassionate-release criteria.  Under the amended policy, federal inmates may be eligible for compassionate release for reasons of age, medical condition, family circumstances or “other extraordinary and compelling reasons.”  The commission also urged the prison bureau to take cases back to court when the defendant meets the criteria laid out in the new policy.

A more broadly conceived compassionate-release mechanism would not by itself cure the problem of unfair sentencing.  But the Justice Department should be using every tool it has to mitigate unfair sentences.  A system that funnels this problem to the president’s office is not enough.

August 7, 2016 in Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Saturday, August 06, 2016

Interesting results from survey of crime victims suggests they support "smart on crime" reforms

This Washington Post article, headlined "Even violent crime victims say our prisons are making crime worse," reports on this results of an interesing survey of crime victims.  Here are excerpts:

A first-of-its-kind national survey finds that victims of crime say they want to see shorter prison sentences, less spending on prisons and a greater focus on the rehabilitation of criminals.  The survey, conducted in April and released Thursday by the Alliance for Safety and Justice, a criminal justice reform group, polled the attitudes and beliefs of more 800 crime victims pooled from a nationally representative sample of over 3,000 respondents....

 "Perhaps to the surprise of some, the National Survey on Victims’ Views found that the overwhelming majority of crime victims believe that the criminal justice system relies too heavily on incarceration, and strongly prefer investments in treatment and prevention to more spending on prisons and jails," according to the report.

By two-to-one, victims said the criminal justice system should focus more on rehabilitating people who commit crimes, as opposed to punishing them.  By similar margins, the victims preferred shorter prison sentences over keeping criminals incarcerated "as long as possible."...

More recent surveys have uncovered overwhelming support for eliminating mandatory minimum sentencing requirements for federal crimes.  But congressional efforts to implement policies like these have often been stymied by "tough-on-crime" senators, including Chuck Grassley (R-Iowa) and Dianne Feinstein (D-Calif.), who are skeptical of many reform efforts. They often cite the experiences of crime victims and their families in their arguments against reform.  For instance, in 2009 Feinstein and Republican Sen. Jon Kyl argued in an op-ed that "for too long, our court system has tilted in favor of accused criminals and has proven appallingly indifferent to the suffering of crime victims." In 2014, Grassley argued on the Senate floor that "lower mandatory minimum sentences mean increased crime and increased victims.  Why would we vote to increase crime and create more crime victims?"

But the new survey suggests that crime victims' interests don't always align with those of the tough-on-crime lawmakers who invoke their names. The survey suggests this may be because many crime victims don't see prison as an effective tool for reducing the crime rate and preventing others from being victimized.

In the survey, 52 percent of victims said that prison makes people more likely to commit crimes again. Only 19 percent said that prison helps rehabilitate people into better citizens.  This skepticism of prisons is in line with most social science research, which has generally shown that mass incarceration causes more crime than it prevents, that institutionalizing young offenders makes them more likely to commit crime as adults, and that spending time in prison teaches people how to be better criminals....

The survey report quotes Judy Martin, an Ohio woman whose son was shot and killed in a parking lot.  "The way our criminal justice system is set up currently doesn’t allow for redemption," Martin says.  "We must treat each other, even those among us who have made serious mistakes, with more humanity.  It’s the only way forward." 

The full report, which is titled "Crime Survivors Speak," is available at this link.

August 6, 2016 in Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, August 04, 2016

After inquiries by members of Congress, Oregon US Attorney agrees to drop federal marijuana charges against Native American teen

I reported in this post last week about the suprising federal prosecution in Oregon of Devontre Thomas, 19-years-old Native American subject earlier this year to a one-count federal misdemeanor charge for possessing "about a gram" of marijuana.  The press coverage of this case prompted members of Congress from Oregon, as reported in this local piece, to inquire about this prosecution:

Three members of Oregon's congressional delegation are demanding U.S. Attorney for Oregon Billy Williams explain why his office is prosecuting a Native American teenager for allegedly possessing a gram of marijuana.  In letter [sent August 4, 2016], U.S. Sen. Ron Wyden, Sen. Jeff Merkley and Rep. Earl Blumenauer, all Oregon Democrats, ask Williams to give them a full list of the marijuana crimes his office has pursued since 2014, when Oregon voters legalized recreational cannabis.

"Marijuana possession charges have declined in Oregon over the past few years, and we hope to see that trend continue," the delegation writes. "We hope that your office continues this focus on dangerous criminal activity, rather than pursuing crimes involving a substance legal in Oregon."

Now, and surely not coincidentally, this piece from Marijuanapolitics.com reports in its headline that federal prosecutors are "to Drop Charges Against Oregon Teen Devontre Thomas." Here are the latest details:

Even those that don’t support legalizing cannabis were hard pressed to support the federal government threatening Oregon teen Devontre Thomas with a year long prison term over about a gram of marijuana.  Drug War reform advocates and concerned citizens across the nation were frankly appalled of such a harsh sentence facing a nonviolent teenager in a state that had legalized cannabis with over 56% of the vote in 2014.

Thomas’ attorney, Ruben Iniguez worked tirelessly for his client and he left me a message stating that the charges would be dismissed in 60 days so long as Thomas stayed out of trouble and stayed employed and/or in school, conditions he was confident the teen would fulfill.  Iniguez thanked advocates for reaching out and offering to help with Thomas’ case.

August 4, 2016 in Drug Offense Sentencing, Examples of "over-punishment", Pot Prohibition Issues, Who Sentences? | Permalink | Comments (6)

State public defender, lamenting funding issues, appoints Mizzou Gov to represent indigent defendant

As reported in this local article, headlined "Missouri's head public defender assigns case to Gov. Nixon, cites overburdened staff," Missouri's head public defender as ordered the state's Governor to put his mouth where his money isn't. Here are the details and context:

Fed up with what he says is the governor’s failure to properly fund his overwhelmed office, the state’s lead public defender ordered Gov. Jay Nixon this week to represent a poor person in Cole County this month. Michael Barrett said he was using a provision of state law that allows him in extraordinary circumstances to delegate legal representation “to any member of the state bar of Missouri.” He’s starting with the state’s highest-profile lawyer: Nixon.

Barrett says the governor has repeatedly declined to give the public defender system the money it requests and is withholding promised funding increases this year. “Providing counsel to poor people who face incarceration is the obligation of the state. It’s not fair to go after private attorneys who are trying to pay the rent when they had nothing to do with contributing to this,” Barrett said in an interview Wednesday.

Barrett never exercised this power before because he thought it was wrong to place the burden of public cases on private attorneys “who have in no way contributed to the current crisis,” he wrote in a letter to the governor dated Tuesday. “However, given the extraordinary circumstances that compel me to entertain any and all avenues for relief, it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique position to address it,” Barrett wrote, referring to Nixon, a Democrat who was a four-term attorney general before becoming governor.

Studies have found that the Missouri Public Defender System lacks the resources or staff to serve the state’s neediest. The system has struggled with high caseloads, high turnover, low salaries and tired, overworked attorneys for years. The Missouri constitution allows the director of the public defender system to assign cases to any lawyer in the state, regardless of whether the lawyer is a public defender, Barrett said.

Just this June, the legislature granted the public defender system a $4.5 million increase, which would’ve helped in hiring 10 more employees and some private attorneys on a contractual basis. The office currently employs more than 370 attorneys. Officials with the public defender’s office had asked for a $23.1 million boost, while Nixon recommended a $1 million increase.

Last month, Barrett and the Missouri State Public Defender Commission filed a lawsuit claiming that Nixon withheld $3.5 million of that $4.5 million increase. Barrett claims Nixon is targeting the public defender system for budget cuts while leaving more money for other programs he likes. Nixon’s office could not be immediately reached for comment Wednesday night.

A 2014 study found that the state’s public defender system needs almost 270 more attorneys to meet its current case volume, which fluctuates between 70,000 and 100,000 cases every year. In 2009, Missouri’s was the second-lowest-funded public defender system in the country. Now, Barrett says that he has even fewer lawyers than when that study was done. He’s lost 30 lawyers because he doesn’t have the money to hire replacements as employees leave for private law firms. Meanwhile, the system’s caseload has gone up 12 percent over the past year to about 82,000 cases, Barrett said. Each of his lawyers has to handle 125 to more than 200 cases at a time.

The full letter that the state public defender wrote to Gov Nixon when appointing him is available at this link.

August 4, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, August 03, 2016

Prez Obama commutes 214 more federal sentences

Commutations_chart_0As reported here by Politico, "President Barack Obama commuted the sentences of 214 people on Wednesday, bringing his total number of commutations to 562." Here is more about this latest encouraging clemency news, with some political context:

The president's biggest batch of commutations comes as Donald Trump touts a "law and order" message. But for advocates of sentencing reform, it's a sign that the administration isn't letting up on the 2014 Justice Department initiative to ease punishments for low-level drug offenders who received long sentences due to mandatory minimums. It includes 67 people who had been facing life sentences.

Obama has granted more commutations than his nine most recent predecessors combined, White House Counsel Neil Eggleston noted in a blog post on Wednesday.  However, he added, “Our work is far from finished. I expect the President will continue to grant clemency in a historic and inspiring fashion.”

While criminal justice reform advocates have cheered the intention behind the initiative, they’ve complained that the pace of commutations has failed to meet expectations and that the process appears arbitrary. Eggleston promised to speed things up this spring, noting new resources for the Pardon Attorney, and in April, Deputy Attorney General Sally Yates wrote to a consortium of defense attorneys helping prisoners to submit applications, urging them to get applications in by May....

This latest batch of commutations comes at a politically sensitive time, just two weeks after Trump stressed a “law and order theme” at the Republican National Convention, with warnings of danger in the streets fueled by attacks on police in Dallas and Baton Rouge.... The focus on policing issues has drawn public attention away from the broader criminal justice reform agenda. Though there is bipartisan support for changes that would reduce mass incarceration, and the House is expected to vote on sentencing reform when it returns in September, advocates acknowledge that prospects for full passage before the election look grim.

The chart reprinted above comes from the White House blog posting by Eggleston, which also includes these statements of note:

Today began like any other for 214 federal inmates across the country, but ultimately became a day I am confident they will never forget. This morning, these individuals received a message from the President: your application for clemency has been granted.

This news likely carries special weight to the 67 individuals serving life sentences – almost all for nonviolent drug crimes – who, up until today, could only imagine what it might be like to once again attend a loved one’s birthday party, walk their child to school, or simply go to the grocery store. All of the individuals receiving commutation today, incarcerated under outdated and unduly harsh sentencing laws, embody the President’s belief that “America is a nation of second chances.”...

To date, President Obama has granted 562 commutations: more commutations than the previous nine presidents combined and more commutations than any individual president in nearly a century. Of those, 197 individuals were serving life sentences. And, today’s 214 grants of commutation also represent the most grants in a single day since at least 1900.....

In each of these cases, the President examines the application on its individual merits. As a result, the relief afforded is tailored specifically to each applicant’s case. While some commutation recipients will begin to process out of federal custody immediately, others will serve more time.

For some, the President believes that the applicant’s successful re-entry will be aided with additional drug treatment, and the President has conditioned those commutations on an applicant’s seeking that treatment. For others, the President has commuted their sentences to a significantly reduced term so they are consistent with present-day sentencing policies. While these term reductions will require applicants to serve additional time, it will also allow applicants to continue their rehabilitation by completing educational and self-improvement programming and to participate in drug or other counseling services. Underlying all the President’s commutation decisions is the belief that these deserving individuals should be given the tools to succeed in their second chance.

The individual nature of the clemency process underscores both its incredible power to change a person’s life, but also its inherent shortcoming as a tool for broader sentencing reform. That is why action from Congress is so important. While we continue to work to act on as many clemency applications as possible, only legislation can bring about lasting change to the federal system. It is critical that both the House and the Senate continue to work on a bipartisan basis to get a criminal justice reform bill to the President's desk.

August 3, 2016 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

"It's Silicon Valley vs. law enforcement on California death penalty"

The title of this post is the title of this local press report on the alignment of various participants in the debate over the future of the death penalty in California, where voters will be considering reform initiatives this fall.  Here are the details:

Two competing November ballot measures that aim to abolish or expedite California’s long-dormant death penalty each raised more than $3 million through the first half of the year, according to state campaign finance records, and largely drew their funding from a narrow group of major donors: Silicon Valley executives and law enforcement unions.

Proposition 62, which would replace capital punishment with life imprisonment without the possibility of parole, led its rival campaign with nearly $4.1 million raised through June 30, filings show. Proponents argue that executions are costly, inhumane and bound to kill wrongly convicted people.

The dozen top contributors, each of whom gave at least $50,000, are nearly all affiliated with the technology industry in the Bay Area. They include Salesforce CEO Marc Benioff, venture capitalist John O’Farrell, and data management company Integrated Archive Systems, which was founded by major Democratic donor Amy Rao. Netflix CEO Reed Hastings and Nicholas McKeown, a professor of electrical engineering and computer science at Stanford University who has started several technology companies, have each given $1 million to the effort so far. Laurene Powell Jobs, widow of Apple co-founder Steve Jobs, and Y Combinator CEO Paul Graham both put in $500,000.

Supporters of Proposition 66, an initiative to speed up the death penalty by putting the California Supreme Court in charge of a revised appeals process with strict time limits, raised almost $3.5 million through June 30, according to financial records. It currently can take decades for a death row inmate to exhaust their appeals, though California has not executed anyone since 2006 because of legal challenges to its lethal drug cocktail.

Nearly 80 law enforcement groups have given to the campaign, led by the California Correctional Peace Officers Association with $325,000, the Peace Officers Research Association of California with $305,000, the California Association of Highway Patrolmen with $250,000 and the Los Angeles Police Protective League with $225,000. Among the largest contributors, twenty of whom have donated more than $50,000 to the campaign, are a handful of individuals, including former Los Angeles Mayor Richard J. Riordan, Orange County businessman Henry T. Nicholas III, and A. Jerrold Perenchio, the former CEO of Univision....

California voters last weighed in on capital punishment in 2012, when another initiative to repeal the death penalty narrowly failed. A January Field Poll showed an even split, with 48 percent of respondents supporting speeding up the process and 47 percent favoring abolishing it. If both Proposition 62 and Proposition 66 pass in November, whichever has a higher number of votes will become law.

Prior related posts:

August 3, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Does the weather and MLB baseball impact federal sentencing outcomes more than racial factors?

The seemingly somewhat kooky question in the title of this post is prompted by this seemingly somewhat kooky empirical paper now available via SSRN and authored by a group of data researchers and titled "Events Unrelated to Crime Predict Criminal Sentence Length." Here is the paper's abstract (with a key sentence emphasized to explain my post title query):

In United States District Courts for federal criminal cases, prison sentence length guidelines are established by the severity of the crime and the criminal history of the defendant.  In this paper, we investigate the sentence length determined by the trial judge, relative to this sentencing guideline.  Our goal is to create a prediction model of sentencing length and include events unrelated to crime, namely weather and sports outcomes, to determine if these unrelated events are predictive of sentencing decisions and evaluate the importance weights of these unrelated events in explaining rulings.

We find that while several appropriate features predict sentence length, such as details of the crime committed, other features seemingly unrelated, including daily temperature, baseball game scores, and location of trial, are predictive as well.  Unrelated events were, surprisingly, more predictive than race, which did not predict sentencing length relative to the guidelines.  This is consistent with recent research on racial disparities in sentencing that highlights the role of prosecutors in making charges that influence the maximum and minimum recommended sentence.  Finally, we attribute the predictive importance of date to the 2005 U.S. Supreme Court case, United States v. Booker, after which sentence length more frequently fell near the guideline minimum and the range of minimum and maximum sentences became more extreme.

Based on a quick scan of the paper, I came to the conclusion that one would need to have a pretty sophisticated understanding of both federal sentencing patterns and empirical methods to assess the soundness of the analysis here.  Still, the paper's penultimate paragraph reinforces that this analysis led to some notable conclusions (with my emphasis again added):

A justice system reasonably aspires to be consistent in the application of law across cases and to account for the particulars of a case. Our goal was to create a prediction model of criminal sentence lengths that accounts for non-judicial factors such as weather and sports events among the feature set. The feature weights offer a natural metric to evaluate the importance of these features unrelated to crime relative to case-specific factors. Using a Random Forest, we found several expected crime related features appearing within the top 10% most important features. However, we also found defendant characteristics (unrelated to the crime), sport game outcomes, weather, and location features all predictive of sentence length as well, and these features were, surprisingly, more predictive than the defendant’s race. Further investigating this predictive ability would be of interest to those studying the criminal justice system.

August 3, 2016 in Booker in district courts, Data on sentencing, Detailed sentencing data, Offense Characteristics, Who Sentences? | Permalink | Comments (1)

Tuesday, August 02, 2016

In wake of Hurst, Delaware Supreme Court declares state's death penalty unconstitutional

The post-Hurst hydra took an especially big bite out the the death penalty in the First State this afternoon: as reported in this local article, via "a landmark decision, the Delaware Supreme Court has ruled that the state's death penalty statute is unconstitutional." Here are the basics:

A 148-page opinion released Tuesday afternoon said that the current law is a violation of the Sixth Amendment role of the jury. The decision of whether and how to reinstate the death penalty should now be left to the General Assembly, the opinion said.

The question before the top state court arose after the U.S. Supreme Court found in January that Florida's death penalty law was unconstitutional because it gave judges – not juries – the final say to impose a death sentence. Delaware and Alabama are the only other states that allow judges to override a jury's recommendation of life....

The last execution in the state was in 2012, when Shannon Johnson, 28, was killed by lethal injection. All pending capital murder trials and executions for the 14 men on death row are currently on hold while the court considered the constitutionality issue.

The full 148-page opinion in Rauf v. Delaware is available at this link.  A brief per curiam summary kicks off the opinion, starting this way:

The State has charged the Defendant, Benjamin Rauf with one count of First Degree Intentional Murder, one count of First Degree Felony Murder, Possession of a Firearm During those Felonies, and First Degree Robbery.  The State has expressed its intention to seek the death penalty if Rauf is convicted on either of the First Degree Murder counts.  On January 12, 2016, the United States Supreme Court held in Hurst v. Florida that Florida‘s capital sentencing scheme was unconstitutional because "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death."  On January 25, 2016, the Superior Court certified five questions of law to this Court for disposition in accordance with Supreme Court Rule 41.  On January 28, 2016, this Court accepted revised versions of the questions certified by the Superior Court and designated Rauf as the appellant and the State as the appellee.

In this case, we are asked to address important questions regarding the constitutionality of our state‘s death penalty statute. The Superior Court believed that Hurst reflected an evolution of the law that raised serious questions about the continuing validity of Delaware‘s death penalty statute.  Specifically, Hurst prompted the question of whether our death penalty statute sufficiently respects a defendant‘s Sixth Amendment right to trial by jury.

Because answering the certified questions requires us to interpret not simply the Sixth Amendment itself, but the complex body of case law interpreting it, we have a diversity of views on exactly why the answers to the questions are what we have found them to be.  But that diversity of views is outweighed by the majority‘s collective view that Delaware‘s current death penalty statute violates the Sixth Amendment role of the jury as set forth in Hurst.  We also have a shared belief that the importance of the subject to our state and our fellow citizens, reflected in the excellent briefs and arguments of the parties, makes it useful for all the Justices to bring our various perspectives to bear on these difficult questions.

August 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Monday, August 01, 2016

Quickly responding to (nonexistant?) problem, NY Gov bars paroled sex offenders from playing Pokemon Go

Pokemon1n-5-webAs reported in this New York Daily News article, headlined "Cuomo orders Pokémon Go prohibition for sex offenders on parole," the chief executive of a state has decided he must chiefly concern himself with who plays with a new video game.  Here are the details (with one seemingly important fact from the story highlighted):

For sex offenders in New York, it will be Pokémon No Go. Gov. Cuomo Sunday ordered that the state make it a condition of parole for sex offenders that they stay away from Pokémon Go and similar interactive games, the Daily News has learned.

The state Department of Corrections and Community Supervision is barring all registered sex offenders under supervision from downloading, accessing, or playing such Internet gaming activities, under the directive.

Roughly 3,000 predators currently on state parole will be immediately impacted, state officials said.  The state will also be sending guidance to the counties around the state that supervise another 5,000 lower level convicted sex offenders urging them to adopt the new policy.

"Protecting New York's children is priority number one and, as technology evolves, we must ensure these advances don't become new avenues for dangerous predators to prey on new victims," Cuomo said.  "These actions will provide safeguards for the players of these augmented reality games and help take one more tool away from those seeking to do harm to our children."

The Pokémon Go app sends players on a hunt to catch digital Pokémon characters.  If a sex offender is caught playing the game in New York, it would be a violation of the terms of their parole and they could be returned to prison, a Cuomo aide said.

Cuomo also sent a letter to software developer Niantic Inc. to request assistance in keeping Pokémon Go out of the hands of sex predators. "The State has taken action to prohibit sex offenders from using this game, but we need your assistance to make certain that sex offenders will not continue to use Pokémon GO by technologically barring their use," Cuomo wrote in the letter. "Working together, we can ensure that this danger today does not escalate into a tragedy tomorrow."

The governor also directed the Department of Criminal Justice Services to provide Niantic with the most recent version of the state's sex offender registry in the hopes the company will use the list to keep people from having access to the app. The Department of Criminal Justice Services will also contact Apple and Google "to inform them of these public safety concerns and work with them to enhance user safety," Cuomo said.

The order and letter came two days after state Sens. Jeffrey Klein and Diane Savino released a report titled "Protecting Our Children: How Pokémon Go and Augmented Reality Games Expose Children To Sex Offenders." After sending staffers over a two-week period to more than 100 homes of level-2 and level-3 sex offenders in the city, the senators found that characters generated by the Pokémon Go app appeared 57% of the time. That figure rose to 73% when related items like PokeStops and Pokémon gyms are factored in, the report showed. The two senators called for passage of legislation that would keep young children and other players at least 100 feet away from a convicted sex offender's home.

Officials have also expressed concern that a feature of Pokémon Go called a "lure" can make it easier for sex predators to tempt potential victims to come to their homes. Savino on Friday said there's no evidence to any kids were sexually abused after being lured by the Pokémon app.

In light of the last line I have highlighted above, suppose New Yorkers should be grateful that state officials have been so quick to deal with the problem of "Poke Perves" even before such a problem even exists.  Sigh.

August 1, 2016 in Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11)

Sunday, July 31, 2016

Reviewing disconcerting realities when kids are put on sex offender registries

Eric Berkowitz has this notable New York Times commentary, headlined "Punishment That Doesn’t Fit the Crime," about juveniles and sex offender registries. Here are excerpts:

When Matthew Grottalio was 10 years old, he and his older brother initiated a touching “game” with their 8-year-old sister. “None of us knew what we were doing,” he said, and he soon forgot about the episode.  But later that year, 1998, his sister’s teacher found out and notified the authorities.  Just weeks after Matthew’s 11th birthday, police officers handcuffed him outside his fifth-grade classroom.

Matthew and his parents agreed to a guilty plea in exchange for two years of probation, which he spent in a foster home. (His brother also pleaded guilty.)  When he returned to his family, they were stunned to learn that he was listed on the Texas sex offender registry website, and would be for 10 years.  He was just 13 years old.  Neighbors threw a Molotov cocktail at his house and shot and killed his family’s dog.  Local newspapers listed him by name along with adult sex offender “monsters” in the area.

He soon “hated life, hated everybody.”  Their sons’ ordeals shattered their parents’ marriage of two decades. Matthew dropped out of high school, ran away, was homeless for two years, sank into drugs and served time for burglary and parole violations.  His decade on the registry had ended by 2011, but internet searches continued to show him on the list — and still do.  Even worse, his parole included restrictions suitable to a serial child rapist.  He was barred from any unsupervised and unapproved contacts with people under 17, and from any contact with his sister, who was by then an adult. (She says she never considered him a threat.)  He also was barred from contact with the children of the woman he married in 2013. Even contact with the baby the couple had together was in limbo until he passed a sex offender evaluation....

Mr. Grottalio’s story is not unusual. In about 40 states, juveniles are listed on sex offender registries, often for their entire lives.  In about 19 states, there is no minimum registration age.  Prepubescent children are listed along with violent adult sex criminals.  While precise data is unavailable, it appears that as many as 24,000 of the nation’s more than 800,000 registered sex offenders are juveniles, and about 16 percent of that population are younger than 12 years old.  More than one-third are 12 to 14....

In her career as a criminal defense lawyer for juveniles and a researcher on juvenile sex offenders, Nicole Pittman, now a vice president at Impact Justice, defended or reviewed about 2,000 juvenile sex cases.  Most involved what she called “normative” sexual behavior and “experimentation.”  Nevertheless, on many sex offender websites, there are juveniles’ photos, names and addresses, and even maps to their homes....

2006, about 32 states had sex offender laws registering juveniles.  That year, the federal Adam Walsh Child Protection and Safety Act mandated, for the first time, that certain youths 14 and over be registered in the state where the violation occurred. (Once that happens, the person also goes on the national registry.) The law also said that offenses such as indecent exposure and public urination had to be included. At least six states now require juveniles to be on the register for life.  Given that state and federal laws have grown into an often conflicting tangle of requirements and penalties, there can be no end to some kids’ ordeals....

The expansion of sex offender laws to include juveniles was based on the assumption that kids who sexually transgress cannot be reformed.  However, research has shown this assumption to be false. Only 1 percent to 7 percent of children who commit sexual offenses will do it again — much lower than the 13 percent recidivism rates for adult sexual offenders.

The policy seems to succeed only in making life difficult for offenders, subjecting them to harassment and isolation. Of the more than 500 youth sex offenders whose cases Ms. Pittman examined, about 100 had attempted suicide.... Knowing this, prosecutors like Vicki Seidl, the senior lawyer in the juvenile division of the Kent County district attorney’s office in Michigan, now push for pleas that keep youths off registries.  Other prosecutors are following suit.

But that alone will not solve the problem.  Juveniles, particularly ones under 14, need to be off the registries entirely. In 2011, the Department of Justice relaxed the requirement for registering juveniles, but legislators still fear that they’ll be accused of being “soft” on sex crimes.

July 31, 2016 in Collateral consequences, Data on sentencing, Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)