Friday, October 19, 2018
New poll indicates strong public support for various provisions of FIRST STEP ACT
I noted in this prior post a poll commissioned by a prosecutor group showing significant opposition to proposals to reduce sentences for serious drug traffickers. But, as detailed in this Reason piece headlined "Poll Shows Wide Support For Criminal Justice Reform Bill In Congress: Prosecutor groups and criminal justice reform advocates are putting out dueling polls on a major bill in Congress," this week brings a new poll with very different results:
A new survey shows wide support among registered voters for provisions in a major criminal justice bill in Congress, in sharp contrast to a survey promoted by a group of federal prosecutors released last week showing opposition to the bill. According to a national survey of 1,234 registered voters conducted online between Oct. 11-12, 82 percent of respondents approved of the specific provisions in the FIRST STEP Act, a prison reform bill that passed the House by a wide bipartisan margin this May.
Additionally, 82 percent supported allowing non-violent offenders to finish their sentences in home confinement in order to ease their integration back into society, and 76 percent of respondents agreed with the FIRST STEP Act's "good behavior" provision that would expand the number of days non-violent offenders can have removed from their sentence. The survey was conducted by In Pursuit Of, LLC, a communications firm connected with the Koch network of conservative advocacy groups, for the organization Freedom Partners....
The Foundation for Safeguarding Justice, a group aligned with the National Association of Assistant U.S. Attorneys (NAAUSA), which represents federal prosecutors, released its own poll last week showing what it says is widespread opposition to reducing federal penalties for drug traffickers....
"We're looking at what this group and what they're putting out and just shaking our heads," says Mark Holden, the chairman of Freedom Partners and general counsel of Koch Industries. "We're not sure how they're coming up with their numbers. The home confinement stuff they're polling on, our polling shows a completely different outcome. There's immense support for all the provisions in the bill, and anyone who says otherwise is obviously motivated by an agenda."
The NAAUSA has consistently opposed efforts to reduce federal mandatory minimum sentencing laws, expand judges' discretion, or in any way reduce the leverage federal prosecutors enjoy over defendants — a result of which is that 97 percent of federal prosecutions end in plea deals.
Of course, the language of the surveys might be the culprit here. The same respondent might, on different days and with no internal contradiction, say when asked that fentanyl dealers deserve harsher sentences and that nonviolent offenders should have better preparation and more opportunities to reintegrate back into society.
Other supporters of the FIRST STEP Act also say they've seen consistent public support for the measures in the bill. "Virtually every poll we've seen shows support for prison reform and sentencing reform," says Jason Pye, vice president of legislative affairs at FreedomWorks, a grassroots conservative advocacy group. "After all, people are seeing the successes of state level efforts."
Thursday, October 18, 2018
Washington Supreme Court declares all juve LWOP cruel punishment and unconstitutional under state constitution
Last week, as noted here, the Washington Supreme Court struck down the state's death penalty based on its arbitrary administration in Washington v. Gregory. Today the same court brings us another big state constitutional opinion in Washington v. Bassett, No. 94556-0 (Wash. Oct. 18, 2018) (available here). The death penalty abolition, interestingly, was unanimous, while this latest opinion divided 5-4. Here is how the majority opinion starts:
At issue here is the constitutionality of sentencing juvenile offenders to life in prison without the possibility of parole or early release. The State appeals a Court of Appeals, Division Two decision holding that the provision of our state's Miller-fix statute that allows 16- and 17-year-olds to be sentenced to life without parole violates the Washington Constitution's ban on cruel punishment. Brian Bassett, recently resentenced to life without parole under the Miller-fix statute, argued at the Court of Appeals that juvenile life without parole is categorically unconstitutional. The court adopted the categorical approach, rather than our traditional Fain proportionality test, and found that sentencing juvenile offenders to life without parole or early release constituted cruel punishment. State v. Bassett, 198 Wn. App. 714, 744, 394 P.3d 430 (2017) (puhlished in part); State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980). We affirm the Court of Appeals' decision and hold that sentencing juvenile offenders to life without parole or early release constitutes cruel punishment and therefore is unconstitutional under article I, section 14 of the Washington Constitution.
Here is how the dissent gets started:
The majority's decision to invalidate a provision of our Miller-fix statute, RCW 10.95.030(3)(a)(ii), and to categorically bar the imposition of a juvenile life without parole (LWOP) sentence purports to rest on article I, section 14 of the Washington State Constitution. However, it offers no basis in state law but is simply a reinterpretation of Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). More precisely, the majority takes Miller's federal constitutional requirement — that a sentencing court consider youth and its attendant characteristics as mitigating factors in exercising sentencing discretion to impose LWOP — and uses it to categorically bar the exercise of such discretion under the state constitution. Not only is this contrary to the holding in Miller itself, which does not categorically bar LWOP sentences for juvenile homicide offenders, it also departs from state precedent rejecting similar constitutional challenges and upholding judicial sentencing discretion.
Remarkable sentencing where district judge decided crooked cops needed more punishment than federal prosecutors sought
This local article from Florida reports on a sentencing in a remarkable federal case under the headline "Ex-Biscayne Park officers get year in prison for roles in framing black teen in crimes." Here are the details from the start of the article:
By helping the feds make a case against a corrupt ex-Biscayne Park police chief, two convicted former officers were hoping to avoid prison time for their roles in framing a black teenager with a string of burglaries. Instead, Charlie Dayoub and Raul Fernandez were handcuffed and led by U.S. Marshals into custody on Tuesday after U.S. District Judge K. Michael Moore sentenced them to the maximum: one year in prison for the false arrests.
As family members cried in disbelief, Moore chastised federal prosecutors for agreeing to recommend eight months of home confinement for Dayoub and one year of probation for Fernandez based on their grand jury testimony and other assistance in helping target former Chief Raimundo Atesiano, who had pressured officers in the mostly white suburban town to pin property crimes on people of color. He pleaded guilty last month. “It would have been a slap on the wrist, and it would have sent entirely the wrong message — particularly to the minority community,” Moore told Assistant U.S. Attorney Harry Wallace. “To think that they can come into court and get a slap on the wrist is insulting to the men and women in law enforcement.”
Moore challenged the prosecutor about his recommendation of leniency for the two defendants, who pleaded guilty in August to depriving a 16-year-old of his civil rights after framing him for four unsolved burglaries in 2013 at the direction of the ex-chief, Atesiano. The misdemeanor conviction carried up to one year in prison, while under the plea agreement prosecutors dropped a more serious civil rights conspiracy charge with a maximum 10-year sentence.
Wallace said his decision allowed the U.S. Attorney’s Office to use testimony by Dayoub and Fernandez to compel Atesiano to plead guilty to the felony civil rights conspiracy. “We were faced with a Hobson’s choice,” Wallace told the judge. But Moore, who accused the prosecutors of “sentencing manipulation,” rejected Wallace’s argument. The judge said had the prosecutors gone to trial against the ex-chief and the two officers, it would have been a “slam dunk.”
The sentencing outcome was a shock to everyone in the courtroom, especially the defendants, who were expecting leniency because the prosecutors joined their defense attorneys in support of no prison time. The reason: The two former Biscayne Park police officers testified before a federal grand jury about how the department’s ex-chief pressured them to arrest people of color and others for crimes they did not commit in the leafy bedroom community north of Miami.
Dayoub, 38, and Fernandez, 62, testified that Atesiano’s goal was to achieve a 100 percent burglary clearance rate, even if it meant pinning unsolved break-ins on people who were innocent victims, according to newly filed court records. Atesiano, 52, and another former Biscayne Park officer, Guillermo Ravelo, 37, already pleaded guilty to conspiring to violate the civil rights of innocent victims by falsely arresting them. Ravelo faces up to 10 years at his sentencing on Thursday, while Atesiano faces similar punishment in November.
UPDATE: This new Justice Department press release discusses the underlying crimes in detail while announcing that today "former Biscayne Park Police Officer Guillermo Ravelo was sentenced to 27 months incarceration for conspiracy to deprive a person of his civil rights and deprivation of civil rights under color of law."
Wednesday, October 17, 2018
"Evidence-Informed Criminal Justice"
The title of this post is the title of this notable new paper by Brandon Garrett now available via SSRN. Here is its abstract:
The American criminal justice system is at a turning point. For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion. Since the 1967 President’s Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches. That report unsuccessfully called for a national research strategy, with an independent national criminal justice research institute, along the lines of the National Institutes of Health. Following the report, police agencies continued to base their practices on conventional wisdom or “tried-and-true” methods. Prosecutors retained broad discretion, relying on their judgment as lawyers and elected officials. Lawmakers enacted new criminal statutes, largely reacting to the politics of crime and not empirical evidence concerning what measures make for effective crime control. Judges interpreted traditional constitutional criminal procedure rules in deference to the exercise of discretion by each of these actors. Very little data existed to test what worked for police or prosecutors, or to protect individual defendants’ rights.
Today, criminal justice actors are embracing more data-driven approaches. This raises new opportunities and challenges. A deep concern is whether the same institutional arrangements that produced mass incarceration will use data collection to maintain the status quo. Important concerns remain with relying on data, selectively produced and used by officials and analyzed in nontransparent ways, without sufficient review by the larger research and policy community. Efforts to evaluate research in a systematic and interdisciplinary fashion in the field of medicine offer useful lessons for criminal justice. This Article explores the opportunities and concerns raised by a law, policy, and research agenda for an evidence-informed criminal justice system.
Justice Department touts record-breaking increases in federal criminal charges
This afternoon I received notice of this new DOJ press release titled "Justice Department Smashes Records for Violent Crime, Gun Crime, Illegal Immigration Prosecutions, Increases Drug and White Collar Prosecutions." Here is the text of the release (with emphasis in original):
Under the leadership of Attorney General Jeff Sessions, the Department of Justice charged the largest number of violent crime and firearm defendants in its history in Fiscal Year (FY) 2018.
“President Donald Trump is a law-and-order President — and this is a law-and-order administration,” said Attorney General Jeff Sessions. “The Department of Justice is breaking law enforcement records and doing so by significant margins. When I took office as Attorney General, I ordered federal prosecutors and agents to take illegal guns off of our streets, to prosecute crimes aggressively, to protect our nation’s borders, and to target white collar fraud. With support from our state and local partners, our federal prosecutors and agents have delivered — and I am grateful to them and the fabulous state and local officers who worked so hard to make these achievements possible. And we are seeing results. Violent crime and homicides, which jumped in 2015 and 2016, both dropped in 2017 and will drop again in 2018. There can be no doubt that good law enforcement policies can make our communities safer.”
According to data from the Executive Office of United States Attorneys (EOUSA), the number of defendants charged with criminal felony offenses increased by nearly 15 percent from more than 71,200 defendants in FY 2017 to more than 81,800 in FY 2018.
In FY 2018, the Justice Department charged the largest number of violent crime defendants since EOUSA started to track this category more than 25 years ago (more than 16,800) — surpassing by nearly 15 percent the previous record set just last year.
In FY 2018, the Justice Department charged more than 15,300 defendants with federal firearms offenses, which is 17 percent more than the previous record.
In FY 2018, over 23,400 defendants were charged with felony illegal re-entry, an increase of more than 38 percent from FY 2017.
In FY 2018, over 23,600 defendants were charged with drug-related offenses, an increase of more than six percent from FY 2017.
Also in FY 2018, the Justice Department increased white-collar prosecutions by more than three percent, charging more than 6,500 defendants.
Finally, in FY 2018, more than 68,400 defendants were charged with misdemeanor illegal entry. This is the highest number of such defendants charged since EOUSA started to track this category and an almost 86 percent increase from the previous year. This total is also more than 4 percent higher than the previous record of over 65,500 defendants set in FY 2013.
Lots of interesting recent reform commentary on lots of different topics
I am in the midst of one of those weeks in which I have too little time to follow the criminal justice news, let alone effectively blog about highlights. Consequently, I am going to start "hump day" today with a (too) quick round up of some interesting commentary I have seen from interesting folks on interesting topics. In alphabetical order by author:
By Erwin Chemerinsky, "The death penalty is now unconstitutional in Washington state. California should be next"
By Seth Ferranti "How Men in Prison Reacted to Brett Kavanaugh's Confirmation"
By Newt Gingrich and Van Jones, "[Ohio] Issue 1 tackles opioid epidemic, puts politics aside"
By Steve Zeidman, "Let more juvie felons out: Raise the Age is only a first step"
Tuesday, October 16, 2018
"'Second Looks, Second Chances': Collaborating with Lifers on a Video about Commutation of LWOP Sentences"
The title of this post is the title of this notable new article authored by Regina Austin now available via SSRN. Here is its abstract:
In Pennsylvania, life means life without the possibility of parole (“LWOP”) or “death by incarceration.” Although executive commutation offers long serving rehabilitated lifers hope of release, in the past 20 years, only 8 commutations have been granted by the state’s governors. This article describes the collaboration between an organization of incarcerated persons serving LWOP and the law-school-based Penn Program on Documentaries and the Law that produced a video supporting increased commutations for Pennsylvania lifers. The article details the methodology of collaborative videomaking employed, the strategic decisions over content that were impacted by the politics of commutation, and the contributions of visual criminology to the video’s portrayal of the lifers who participated in the project.
Monday, October 15, 2018
Federal judge decides Missouri parole practices fail to comply with requirements of Miller and Graham
As reported in this local article, headlined "Missouri violated rights of inmates convicted as juveniles who are serving life without parole, judge says," a federal judge late last week ruled in favor of inmates convicted of murder as juveniles who claimed that Missouri’s parole policies and practices violated their rights in the wake of the Supreme Court's rulings in Miller and Graham. Here are the basics:
A federal judge on Friday said that recent Missouri parole hearings violated the constitutional rights of inmates serving life without parole for offenses they committed when they were juveniles. State officials have 60 days to develop a plan for providing the inmates “a meaningful and realistic opportunity” for parole, U.S. District Judge Nanette K. Laughrey ruled.
The lawsuit was filed by four inmates who are seeking to represent all inmates who were convicted and sentenced to life without parole for an offense that occurred when they were younger than 18. Each of the four inmates was recently denied parole after a hearing, and Laughrey said nearly 85 percent of the class of affected inmates did not receive a parole date after a hearing. The majority were not granted another hearing for the maximum of five years, without an explanation “for the lengthy setback,” she wrote.
In a news release about the ruling Sunday, the Roderick & Solange MacArthur Justice Center of St. Louis, which represents the inmates along with lawyers from Husch Blackwell, said more than 90 inmates are affected.
The parole board’s decision is communicated to inmates on a two-page “barebones, boilerplate form,” with only two available reasons for denying parole: the seriousness of the original offense or that the inmate’s “inability to... remain at liberty without again violating the law,” Laughrey wrote. Even state officials admitted Missouri failed to provide adequate explanation for the decisions, the judge said, and fails to tell inmates what “steps they should to take to become better suited for parole.”
Laughrey wrote that while an adult’s “interest in parole is not constitutionally protected,” a series of U.S. Supreme Court decisions “has held that those who were children at the time of the crimes for which they were convicted may be subject to certain additional protections.”...
Laughrey ruled that the state needs to come up with “revised policies, procedures, and customs” that will “ensure that all Class members are provided a meaningful and realistic opportunity for release based on demonstrated maturity and rehabilitation,” including those who already had unsuccessful hearings.
The full 27-page ruling in Brown v. Percythe, No. 2:17-cv-04082-NKL (W.D. Mo. Oct. 12, 2018), is available at this link.
October 15, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)
Over dissent, SCOTUS refuses to take up Johnson challenge to then-mandatory career-offender guidelines
The Supreme Court had recently relisted a set of cases concerning whether and how the Court's vagueness ruling in Johnson applied to a key provision of the career-offender sentencing guideline when that guideline was still mandatory before the Booker ruling. (Sentencing gurus know that the Justices in Beckles decided that Booker melted away any constitutional vagueness problems when it make the guidelines advisory.) Today, via this new order list, the Court denied cert on all these cases.
I am a bit surprised and a lot disappointed by these cert denials, largely for reasons expressed by Justice Sotomayor in this dissent joined by Justice Ginsburg in Brown v. US, No. 17–9276. Here is how the four-page dissent from the denial of certiorari starts and ends:
Today this Court denies petitioners, and perhaps more than 1,000 like them, a chance to challenge the constitutionality of their sentences. They were sentenced under a then-mandatory provision of the U.S. Sentencing Guidelines, the exact language of which we have recently identified as unconstitutionally vague in another legally binding provision. These petitioners argue that their sentences, too, are unconstitutional. This important question, which has generated divergence among the lower courts, calls out for an answer. Because this Court’s decision to deny certiorari precludes petitioners from obtaining such an answer, I respectfully dissent....
The question for a petitioner like Brown, then, is whether he may rely on the right recognized in Johnson to challenge identical language in the mandatory Guidelines. Three Courts of Appeals have said no. See 868 F.3d 297 (CA4 2017) (case below); Raybon v. United States, 867 F.3d 625 (CA6 2017); United States v. Greer, 881 F.3d 1241 (CA10 2018). One Court of Appeals has said yes. See Cross v. United States, 892 F.3d 288 (CA7 2018). Another has strongly hinted yes in a different posture, after which point the Government dismissed at least one appeal that would have allowed the court to answer the question directly. See Moore v. United States, 871 F.3d 72, 80–84 (CA1 2017); see also United States v. Roy, 282 F. Supp. 3d 421 (Mass. 2017); United States v. Roy, Withdrawal of Appeal in No. 17–2169 (CA1). One other court has concluded that the mandatory Guidelines themselves cannot be challenged for vagueness. See In re Griffin, 823 F.3d 1350, 1354 (CA11 2016).
Regardless of where one stands on the merits of how far Johnson extends, this case presents an important question of federal law that has divided the courts of appeals and in theory could determine the liberty of over 1,000 people. That sounds like the kind of case we ought to hear. See this Court’s Rules 10(a), (c). Because the Court nevertheless declines to do so, I respectfully dissent.
"How Statistics Doomed Washington State’s Death Penalty"
The title of this post is the title of this new commentary at The Atlantic by Garrett Epps. Here is an excerpt (with links from the original):
Last week, the Washington Supreme Court, in a fairly pointed opinion, declared that, at least in its jurisdiction, numbers have real meaning. And to those who have eyes to see, numbers make clear the truth about death-sentencing: It is arbitrary and racist in its application.The court’s decision was based on two studies commissioned by lawyers defending Allen Gregory, who was convicted of rape and murder in Tacoma, Washington, in 2001 and sentenced to death by a jury there. The court appointed a special commissioner to evaluate the reports, hear the state’s response, and file a detailed evaluation. The evidence, the court said, showed that Washington counties with larger black populations had higher rates of death sentences—and that in Washington, “black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.” Thus, the state court concluded, “Washington’s death penalty is administered in an arbitrary and racially biased manner” — and violated the Washington State Constitution’s prohibition on “cruel punishment.”
The court’s opinion is painstaking — almost sarcastic — on one point: “Let there be no doubt — we adhere to our duty to resolve constitutional questions under our own [state] constitution, and accordingly, we resolve this case on adequate and independent state constitutional principles.” “Adequate and independent” are magic words in U.S. constitutional law; they mean that the state court’s opinion is not based on the U.S. Constitution, and its rule will not change if the nine justices in Washington change their view of the federal Eighth Amendment. Whatever the federal constitutionality of the death penalty, Washington state is now out of its misery.Last spring, a conservative federal judge, Jeffrey Sutton of the Sixth Circuit, published 51 Imperfect Solutions: States and the Making of American Constitutional Law, a book urging lawyers and judges to focus less on federal constitutional doctrine and look instead to state constitutions for help with legal puzzles. That’s an idea that originated in the Northwest half-a-century ago, with the jurisprudence of former Oregon Supreme Court Justice Hans Linde. It was a good idea then and it’s a good idea now. State courts can never overrule federal decisions protecting federal constitutional rights; they can, however, interpret their own state constitutions to give more protection than does the federal Constitution. There’s something bracing about this kind of judicial declaration of independence, when it is done properly.
Prior related posts:
- Washington Supreme Court strikes down state's death penalty based on its arbitrary administration
- Eager for a "51 Imperfect Solutions" approach to a new wave of constitutional proportionality litigation (with broadside Harmelin attacks, too)
Sunday, October 14, 2018
Alice Marie Johnson urges Prez Trump to free "thousands more" federal prisoners like her
The now-famous, drug-dealer-serving-LWOP grandmother Alice Marie Johnson, who was granted clemency three months ago by Prez Donald Trump, has authored this lengthy new Fox News opinion piece headlined "President Trump freed me from prison – I’m glad he wants to give other nonviolent offenders their freedom." Here are excerpts:
On June 6, I walked out of prison as a free woman after serving almost 22 years of my life sentence on a first-time nonviolent drug conviction, thanks to a decision by President Trump to commute my sentence to time served. I was thrilled to hear the president say this week that he is looking to give early release to additional nonviolent prisoners like me....
I can never thank the president enough. He heard my voice, gave life to my hope and promise to my future. I am a 63-year-old grandmother who just wants to live in peace and enjoy my family. There is zero chance I will ever break the law again....
Many other nonviolent offenders in federal prisons today are — like me — no danger to society, and I look forward to having President Trump and members of his administration examine their cases. Many of these men and women have spent long years in prison and deserve to receive clemency or a commutation of their sentences from the president.
Freeing these offenders early would be an act of justice and mercy, as granting me my freedom was. And early release would save taxpayers the cost of feeding and housing these people for years after they have paid their debt to society.
When President Obama began granting clemency to nonviolent offenders near the end of his presidency, he gave hope to thousands of people like me. By 2016, I was 20 years into my life sentence.
My path to prison began at a time in my life when I faced some desperate choices. I made a terrible decision to participate in a drug conspiracy — a decision I very much regret.
But during my two decades in prison, I accomplished an extraordinary rehabilitation — writing plays, volunteering in the prison hospice, becoming an ordained minister and mentoring to young women in prison. By 2016 I was a new woman living a new life, even if it was a life I thought was destined to be lived only behind bars.
President Obama’s clemency initiative gave me hope. I had been told not to hope, not to dream, because I would never be set free. As his presidency came to a close, President Obama began releasing hundreds of other nonviolent offenders, and I became sure I would be released as well. My prison warden, captain, case manager and vocational training instructor all recommended I be granted clemency.
Unfortunately, I was left behind. President Obama left office without giving me the chance to start a new life. And I learned that putting your hope in one man is a mistake, because when that hope dies, you think all your hope has to die. When I received the denial letter from the Office of the Pardon Attorney, I was devastated. I don’t know why my request was denied, because no explanation was given. But that decision left me so disappointed.
My petition met all the criteria for clemency. I had reformed my life in prison and I felt it should have been clear to anyone that I would contribute to society if I was released. But President Obama left, President Trump arrived and I was told again to give up hope. I didn’t.
I kept fighting for myself because I know that hearts can change, and no matter what administration is in power, you have to be willing to come to the table, sit down and talk about whether you can find common ground.
Thankfully, Jared Kushner and others working for President Trump have worked to keep clemency and criminal justice reform alive. They can see that not every person who makes a mistake deserves for that mistake to define the rest of their life. They know that hope is important, but it must also be turned into meaningful change....
I did not leave prison bitter. I love America and believe in the inherent goodness of the American people and the possibility of redemption. Now it is President Trump who can make history if he takes the opportunity to go further than any president before him by giving second chances to thousands of people who just need someone to hear them.
The president has a power that the Constitution grants to him alone to both show mercy and deliver justice for people who were given excessively long sentences for crimes involving no violence. The people who deserve to be freed are those who have long since recognized their mistakes and who have rehabilitated themselves during their time in prison.
I will never forget what President Trump did for me. He changed my life and gave me the opportunity to fulfill my potential, and now he has the chance to do the same for thousands more.
I find it interesting and encouraging that Ms. Johnson says there are "thousands more" federal prisoners like her and that she calls upon Prez Trump to "make history" by going "further than any president before" in the use of his clemency powers. To surpass Prez Obama here, Prez Trump would have to grant more than 1700 clemencies, and I know Ms. Johnson is not the only one who would like to see this happen.
"Unstitching Scarlet Letters? Prosecutorial Discretion and Expungement"
In this post last week, I noted a New York Times article headlined "Convicts Seeking to Clear Their Records Find More Prosecutors Willing to Help." A helpful reader made sure I also posted about this article on SSRN with the title of this post authored by Brian Murray. Here is its abstract:
Criminal record history information pejoratively brands those who contact the criminal justice system, whether they were guilty or not. In theory, the remedy of expungement is designed to mitigate the unanticipated, negative effects of a criminal record. But the reality is that prosecutors — driven by a set of incentives that are fundamentally antithetical to expungement — control many of the levers that determine who is able to obtain expungement. The disjunction between the prosecutorial mindset and the minister of justice ideal could not be starker and the consequences can be significant.
Prosecutors, as agents of the state, can either argue forcefully for the retention or deletion of such information, dramatically affecting the situation of an arrestee or ex-offender given the pervasive web of collateral consequences associated with a criminal record. This discretion, as it relates to theories of punishment, prosecutorial discretion overall, the ethical responsibilities of prosecutors to do justice, and public policy interests, has been grossly under-analyzed despite the serious implications it has for the prosecutorial role within the criminal justice system and for reentry efforts.
While many scholars have paid attention to how prosecutorial incentives conflict with the theoretical responsibilities of prosecutors in charging, plea-bargaining, and post-conviction situations involving innocence, none have provided a theoretical framework focused on the role of the prosecutor during expungement. Many of the complicated incentives that undermine holistic prosecution during those earlier phases exist during the expungement process as well. But scholarly responses to those incentives are not adequate given the range of considerations during the expungement phase. As such, this Article argues that scholarly discussions related to prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pre-trial or the questions of factual and legal guilt.
Given that the primary role of the prosecutor is to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of non-conviction and conviction information. In doing so, it hopes to provide a framework for exercising such discretion, and to initiate additional conversation about the role of prosecutors during the phases following arrest and prosecution.
Saturday, October 13, 2018
Some prosecutors and some conservatives push back on momentum for federal criminal justice reforms
As highlighted via recent posts here and here, momentum seems to be picking up again for the passage of a version of the federal FIRST STEP Act that would reform federal prison practices and tweak federal sentencing rules. Perhaps prompted by these realities, a new poll and new letter has emerged to push back on reform efforts.
The poll comes from ORC International and was commissioned by the Foundation for Safeguarding Justice, a group which represents the National Association of Assistant U.S. Attorneys. This press release reports on the heart of the poll:
A new survey of American adults, commissioned by the Foundation for Safeguarding Justice (FSJ), confirms that Americans overwhelmingly oppose sentencing and prison and “reforms” that would reduce federal criminal penalties for drug traffickers and allow the early release of prisoners to “home confinement.” Three out of four Americans surveyed (74 percent) said that they oppose proposals that reduce penalties for criminals involved in the trafficking of heroin, fentanyl, and similar drugs....
Public opposition to criminal leniency is deep across the American population and holds true regardless of race, gender, or party affiliation, the FSJ survey results (detailed below) show. The survey results represent an objective barometer of public opposition to criminal leniency for drug traffickers, in sharp contrast to the skewed results of a recent Kentucky poll touted by criminal leniency advocates....
The survey, conducted from September 13-16, 2018, interviewed 1,004 American adults, and was administered by ORC International, a nationwide polling firm. Full study results and methodology are available here.
Employing similar rhetoric and expressing similar concerns(and citing this poll), an assortment of conservative leaders have sent this letter to Prez Trump urging him to oppose FIRST STEP Act. Here is part of the letter:
Given how momentum for federal reform has built, slowly but surely, over much of 2018, I would be surprised if this new poll and letter significantly changes how important political players' are dancing with the FIRST STEP Act. But they both show that seemingly ever-growing consensus in support of federal reforms does not include everyone, and they also help highlight why even relatively modest reforms like the FIRST STEP Act can be a challenging political lift.
Now, a leniency-industrial complex is urging you to support a bill that would reduce the sentences for federal drug traffickers, and allow large numbers of those same traffickers to “serve” their sentences outside prison in “home confinement.”
Mr. President, don’t do it. Trust your instincts. America seems, to many of us, to be plagued with different applications of justice. The public is losing faith in the rule of law and reforms are needed. But, here [we present] just four of many reasons why you should oppose this emerging new bill....
But this bill is not prison reform — it’s prison release. It’s not sentencing reform — it’s sentencing reductions. Contrary to what jailbreak supporters tell you, these policies are far from popular. Proponents inadvertently acknowledge how unpopular their proposals are by disguising what they’re doing with buzzwords and abstract concepts.
October 13, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (3)
"The Pope and the Capital Juror"
The title of this post is the title of this new essay authored by Aliza Cover now available via SSRN. Here is its abstract:
Counterintuitively, the Pope’s recent announcement that the death penalty is impermissible in all circumstances may make death sentences easier to come by, at least in the short term. The reason for this peculiarity is the “death qualification” of capital jurors — the process of questioning prospective jurors about their views on the death penalty and removing for cause those who are “substantially impaired” in their willingness to consider imposing a death verdict.
This Essay anticipates three problematic consequences of the Pope’s declaration, given a capital punishment system that relies on death-qualified juries. First, prosecutors will likely be able to strike a greater number of death-averse jurors, thereby seating juries tilted in favor of death and obtaining death verdicts with greater ease. Second, with more believing Catholics excluded from jury service, the representativeness — and hence the legitimacy — of capital juries will suffer. Third, if the number of death verdicts rises with the ease of disqualification, one of the key “objective indicators” of “evolving standards of decency” will be skewed, registering more support for the death penalty despite — indeed, because of — societal movement against it. The potential for these unexpected consequences to flow from a major pronouncement against the death penalty highlights how death qualification shapes and distorts the practice of capital punishment in our country.
Friday, October 12, 2018
Highlighting how constitutional problems with death penalty also apply to drug prohibitions
Over at Marijuana Moment, Kyle Jaeger in this post is quick to note interesting implications of key statements by the Washington Supreme Court in its big opinion yesterday striking down the state's death penalty as "unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner." The post is titled "Successful Constitutional Case Against Death Penalty Works For War on Drugs, Too," and here are excerpts:
The movement to restore civil liberties and resolve systemic racial injustices in the criminal justice system scored a major victory on Thursday. And no, this time we’re not talking about ending the war on drugs. Or at least not yet. Washington became the 20th state to abolish the death penalty, with the state Supreme Court ruling that capital punishment is unconstitutional because “it is imposed in an arbitrary and racially biased manner.”
If you’re already seeing parallels to arguments for ending drug prohibition, you’re not alone. Many of the same points the court made in their ruling against the death penalty ring true for the war on drugs, too. For example, the court argued that death sentences have been disproportionately carried out against black defendants, at a rate more than four times higher than it is for white defendants....
Similarly, drug reform advocates have long maintained that prohibition is racially discriminatory given disproportionate rates of enforcement and arrests for drug-related offenses. Black Americans are nearly three times as likely to be arrested for a drug-related crime, compared to white Americans. That’s in spite of the fact that rates of consumption are roughly equal among both groups...
The Washington court said another factor that contributed to their decision concerned “contemporary standards and experience in other states.” “We recognize local, national, and international trends that disfavor capital punishment more broadly. When the death penalty is imposed in an arbitrary and racially biased manner, society’s standards of decency are even more offended.”
The parallel here couldn’t be more clear. If such trends demonstrate a need to review and reform an existing law, the same rationale could theoretically apply to drug prohibition. A majority of states have legalized cannabis for medical or adult-use, and national interest in changing federal marijuana laws has steadily grown in recent years. Beyond marijuana, a broader drug reform push has included calls to abolish mandatory minimum sentences for non-violent drug offenses.
Of course, marijuana is already legal in Washington, and no other states have yet legalized drugs, so this part of the ruling’s applicability to a potential case seeking to strike down broad drug prohibition in the state might not be quite ripe yet. While it’s unclear whether the constitutionality of prohibition could be reasonably challenged on similar legal grounds, the similarities are striking.
The justification for capital punishment was another point of interest for the justices, who noted that the system failed to achieve its “penological goals” of “retribution and deterrence.” For all intents and purposes, drug prohibition too has failed to achieve similar goals. Decades of drug war have not appreciably deterred consumption. From 2001 to 2013, the rate of marijuana use among American adults almost doubled, for instance. The Cato Institute analyzed the impact of the drug war in a 2017 report. It concluded that prohibitionist policies “fail on practically every margin.”...
A last note from the Washington Supreme Court justices: “Under article I, section 14, we hold that Washington’s death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner,” the justices wrote. “Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals.” Now swap “death penalty” with “drug prohibition” in that last quote. Fits like a glove.
Prior related post:
Thursday, October 11, 2018
"Trump Is Mulling Candidates Who Could Replace Jeff Sessions"
The title of this post is the headline of this Wall Street Journal article, which gets started this way:
President Trump is considering as many as five candidates as his new attorney general on the assumption that Jeff Sessions will leave his post later this year, according to White House officials and outside advisers.
The potential candidates include Health and Human Services Secretary Alex Azar, Transportation Department general counsel Steven Bradbury, former Attorney General Bill Barr, Deputy Secretary of State John Sullivan and Janice Rogers Brown, a retired appeals court judge from the District of Columbia Circuit, the people said.
Tennessee Gov grants last-minute reprieve so state can fulfill condemned's request to be executed by electric chair
As reported in this Tennessean article, "three hours before Edmund Zagorski was scheduled to die, Gov. Bill Haslam delayed the inmate's execution so the state could prepare to use the electric chair to kill him." Here is more:
Haslam said a short delay would give the state time to accommodate Zagorski's preference for the electric chair over a controversial lethal injection cocktail. Late Thursday night, the U.S. Supreme Court eliminated two other legal hurdles that might have derailed the execution, making it more likely to move forward soon.
Haslam's temporary reprieve and the high court's decisions came after several days of rapid-fire developments put the state on the defensive and put the timing of Zagorski's execution in question. Haslam's reprieve was for 10 days, but it could take longer for a new execution date to be set by the Tennessee Supreme Court.
The U.S. Supreme Court struck down two stays Thursday night, essentially ending his remaining legal options to avoid execution:
The high court vacated a stay from the 6th Circuit Court of Appeals. The appeals court had planned to weigh whether Zagorski may pursue claims his trial attorneys made errors in representing him.
A majority of justices rejected a request from Zagorski’s attorneys for another stay so the high court could review a constitutional challenge to Tennessee’s lethal injection protocol.
Justices Sonia Sotomayor and Stephen Breyer dissented, saying they would have reviewed the lethal injection protocol. In her dissent, Sotomayor said Tennessee's lethal injection method, which experts say leads to torture, should be scrutinized....
Zagorski sued this week to force the state to use the electric chair for his execution, saying the pain of electrocution would be preferable to the controversial lethal injection. A federal judge issued an order temporarily barring the state from executing him by lethal injection while that suit is pending. The suit could be moot if the state agrees to move forward with the electric chair.
Haslam specifically cited the electric chair suit in his reprieve, suggesting that a delay would give the state time to prepare to execute Zagorski using the electric chair. “I take seriously the responsibility imposed upon the Tennessee Department of Correction and me by law, and given the federal court’s decision to honor Zagorski’s last-minute decision to choose electrocution as the method of execution, this brief reprieve will give all involved the time necessary to carry out the sentence in an orderly and careful manner,” Haslam said in a statement....
The state initially refused Zagorski's request to be executed by the electric chair, saying he was too late and hadn't given two weeks' notice. But District Judge Aleta Trauger at noon Thursday said the state could not use lethal injection until she had considered Zagorski's claim.
Zagorski, 63, faces death for the April 1983 murders of John Dale Dotson and Jimmy Porter. He shot them, slit their throats and stole their money and a truck, prosecutors say. The two men had expected to buy 100 pounds of marijuana from Zagorski.
Verna Wyatt, an advocate with Tennessee Voices for Victims, has been in contact with Dotson’s family as the challenges and uncertainty piled up. “What this process does to the victims’ families is barbaric,” Wyatt said. “Thirty-four years, they don’t get justice and it’s an ongoing reliving of their grief and what happened to their loved one. If they won’t fix this system, it should be abolished. This is not justice on any level. It’s outrageous.”
Justice Sotomayor's dissent on the lethal injection claim is available at this link and it ends this way:
I accordingly would grant Zagorski’s request for a stay and grant certiorari to address what renders a method of execution “available” under Glossip. Capital prisoners are not entitled to pleasant deaths under the Eighth Amendment, but they are entitled to humane deaths. The longer we stand silent amid growing evidence of inhumanity in execution methods like Tennessee’s, the longer we extend our own complicity in state-sponsored brutality. I dissent.
Washington Supreme Court strikes down state's death penalty based on its arbitrary administration
I am on road and so unable to read or comment on this big unanimous opinion. I hope to be able to do so before too long.
UPDATE: Here is how the opinion for the court in Washington v. Gregory starts and ends:
Washington's death penalty laws have been declared unconstitutional not once, not twice, but three times. State v. Baker, 81 Wn.2d 281, 501 P.2d 284 (1972); State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979); State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981). And today, we do so again. None of these prior decisions held that the death penalty is per se unconstitutional, nor do we. The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered. As noted by appellant, the use of the death penalty is unequally applied — sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant. The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution....
Under article I, section 14, we hold that Washington's death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner. Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals. Pursuant to RCW 10.95.090, "if the death penalty established by this chapter is held to be invalid by a final judgment of a court which is binding on all courts in the state, the sentence for aggravated first degree murder ... shall be life imprisonment." All death sentences are hereby converted to life imprisonment.
Prez Trump reiterates support for prison reform and says AG Jeff Sessions "gets overruled by me"
As detailed in this Hill article, headlined "Trump: I'll overrule Sessions on criminal justice reform," Prez Donald Trump stated yet again today his support for significant federal prison and sentencing reform provisions working through Congress. Here are the details:
President Trump on Thursday said he would overrule Attorney General Jeff Sessions if he tries to stymie efforts to overhaul the criminal justice system.
“If he doesn't, then he gets overruled by me,” Trump said when asked during an interview with “Fox & Friends” about Sessions's opposition to the effort.
“There has to be a reform because it's very unfair right now,” the president added. “It's very unfair to African-Americans. It's very unfair to everybody. And it's also very costly.”
Sessions, a law-and-order candidate who became estranged from Trump over the Russia probe, played a role in successfully urging the president to put off action on criminal justice reform before the midterm elections.
Trump's comments come hours before he's scheduled to have lunch with the rapper Kanye West and former NFL star Jim Brown, who are expected to urge Trump to move forward with sentencing and prison reforms. The president heaped praise on West and Brown, saying the support from the rapper caused his approval among African-Americans to shoot up "like 25 percent" because "he's got a big following in the African-American community."
Some of many prior related posts:
- Prez Trump pledges to sign prison reform that will be "best in the world"
- Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
- Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts
- An interesting political pitch for the FIRST STEP Act
- White House emails "startling facts about America’s prison system"
- Could a version of the FIRST STEP Act with sentencing reforms pass the Senate in a matter of weeks?
- FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act
- Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system
- Will Trump White House soon "deploy its assets ... to stump" for federal criminal justice reform? It may be critical.
- Prez Trump reportedly has decided he will not support federal criminal justice bill before mid-term election
- Can Kanye West help jump-start now dormant clemency and criminal justice reform activity in White House?
October 11, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Who Sentences | Permalink | Comments (0)
Wednesday, October 10, 2018
Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
This short piece from The Hill, headlined "McConnell looking at criminal justice reform after midterms," provides an encouraging update on the prospects for federal criminal justice reform after next month's election:
Senate Majority Leader Mitch McConnell (R-Ky.) says he will move a criminal justice reform compromise after the Nov. 6 election if it has 60 votes.
The Senate GOP conference is divided on the package, which merged a House-passed prison-reform bill with bipartisan sentencing reform provisions crafted by the Senate....
“Criminal justice has been much discussed,” McConnell told reporters Wednesday. “What we’ll do after the election is take a whip count and if there are more than 60 senators who want to move forward on that bill, we’ll find time to address it.”
It’s a significant commitment from McConnell who has resisted bringing criminal justice reform legislation up for a vote because it divides his conference.
I blogged here a prior Hill article from a couple of months ago during Senate negotiations over the FIRST STEP Act which indicated that the White House back then had secured "30 to 32 ... 'yes' votes among Republican senators [and hoped] that the number of GOP supporters could eventually grow as many as 40 to 46." That article led me to speculate in August that a version of the FIRST STEP Act could perhaps garner up to 90 votes in the Senate, and I do not think this head-counting is likely to change all that dramatically after the election (though one never knows). Even if "only" 30 GOP Senators favor moving forward on the FIRST STEP Act, that will be more than enough for Senator McConnell to move ahead unless a whole lot of Democratic Senators decide they want to hold out for a more ambitious bill (which I think is unlikely).
In other words, I am starting to think that the prospect of the FIRST STEP Act becoming law before the end of the year might be pretty darn good. I am never inclined to count on Congress on get anything done, but on this front it does seem we are getting closer and closer.
Some of many prior recent related posts:
- House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
- FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
- Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
- Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
- Prez Trump pledges to sign prison reform that will be "best in the world"
- Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
- Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts
- An interesting political pitch for the FIRST STEP Act
- Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018
- FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act
- Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system
- Will Trump White House soon "deploy its assets ... to stump" for federal criminal justice reform? It may be critical.
- Could enhanced FIRST STEP Act get more than 90 votes in the Senate if even brought up for a vote?
October 10, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)
Can Kanye West help jump-start now dormant clemency and criminal justice reform activity in White House?
The question in this title of this post is prompted by this news as reported at Vox: "Kanye West will meet with Trump at the White House to talk prison reform, violence in Chicago." Here is some context:
West is expected to visit Washington on Thursday to meet with President Trump as well as White House senior adviser Jared Kushner, according to the New York Times. The Times reports that West will meet with Kushner first and will then have lunch with Trump. The meeting was confirmed in a statement by White House press secretary Sarah Huckabee Sanders.
West is expected to discuss a number of topics during his visit, including job opportunities for those released from prison, manufacturing jobs in Chicago, and gang violence. Sanders said West — who grew up in Chicago and recently announced plans to move back into the area — will also discuss “what can be done to reduce violence in Chicago,” days after Trump proposed implementing stop-and-frisk policing tactics in the city.
The Thursday meeting won’t be the first between Trump and West; the rapper previously went to Trump Tower in December 2016 to discuss “multicultural issues.” In May, West’s wife, reality TV star and entrepreneur Kim Kardashian West, met with Trump to discuss prison reform and pardoning Alice Marie Johnson, a 63-year-old black woman serving life in federal prison for a first-time drug offense. Trump commuted Johnson’s sentence, and in the months since, Kardashian West has returned to the White House to continue to lobby for prison reform.
Kanye West has become one of the president’s highest-profile celebrity supporters, and he has favorably tweeted about Trump on numerous occasions. Last month, West delivered a pro-Trump speech after a performance on Saturday Night Live. “So many times that I talk to a white person about this, and they say, ‘How could you support Trump? He’s racist.’ Well, if I was concerned about racism,” West said, “I would have moved out of America a long time ago.”...
The meeting also highlights the continued power of celebrities in the Trump era. While other presidents have often brought celebrities to White House — Barack Obama notably invited rappers including J. Cole and Nicki Minaj to discuss criminal justice reform — these gatherings were also accompanied by policy meetings with experts.
President Trump, meanwhile, has almost exclusively relied on celebrity references from figures like Kardashian West and Sylvester Stallone, as well as input from conservative figures like Ted Cruz and outlets like Fox News, to shape his approach to aspects of the justice system like pardons. Policy meetings on prison reform and sentencing, on the other hand, have been largely left to aides and advisers like Kushner. The president has also fiercely criticized celebrities who speak out against his policies, most recently telling reporters that he likes Taylor Swift’s music “25 percent less” after her recent endorsement of Democrats running for office in Tennessee.
Not every celebrity invited to the White House has gone. For example, rapper Meek Mill, who experienced a decade-long saga with the criminal justice system, dropped out of a May discussion on prison reform, telling reporters that the event had become focused on him and Trump rather than policy.
Much of this seems to be the result of how much influence celebrities — or at least celebrities with minimal criticism of Trump himself — appear to hold in the Trump White House when it comes to matters of criminal justice. A September report from USA Today noted that the Trump administration has taken “an often chaotic, ad hoc approach to clemency.” The report added that the president “has granted pardons to people who haven’t applied for them, bypassed the formal Justice Department review process, and focused his pardon power on a handful of politically charged, high-profile cases.” While there have been efforts to create a more disciplined process, it is unclear if the president would respond positively to such a development.
UPDATE: A helpful reader made sure I saw this new Washington Examiner article headlined "Trump says he will release more inmates: 'A lot of people' jailed 'for no reason'." The piece reports on Prez Trump continuing to talk up the prospect of coming (mass?) clemency grants:
President Trump said Tuesday he is "actively looking" for more inmates to release from prison with his clemency powers, saying "a lot" of people are jailed for years without good reason.
Trump told reporters in the Oval Office he was happy he released drug convict Alice Johnson from a life sentence in June, and that he intends to do more. "Alice Johnson is such a great person, such a great case. I'd like to find a lot of people like Alice Johnson. And there are a lot of people that are in a situation like that. And we are actively looking for those situations," he said.
Trump said Johnson "is a terrific woman. I've been watching her a lot and what a great spokesman she is for that situation. And that's covering a lot of people. There are a lot of people like that, that will unfortunately be locked up for many, many years, and there's no reason for it."
"We are looking for — we are actively looking for other situations exactly like that," he said.
A few of many recent related posts about recent Trumpian clemency activity:
- Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!
- Prez Trump reportedly "obsessed" with pardons and "may sign a dozen or more in the next two months"
- "Kim Kardashian West pushes White House for more drug sentence commutations"
- Prez Trump now says he is looking at "3,000 names" for possible clemency and will seek more
- "Trump asks for clemency names and lists promptly arrive at White House"
- Former US Pardon Attorney explains why "Trump’s pardons are really not out of the ordinary"
- Another notable report on clemency suggesting Prez Trump will be "pardoning a lot of people — pardons that even Obama wouldn’t do"
- "N.F.L. Players to Trump: Here’s Whom You Should Pardon"
- "The Quest to Get a Pardon in the Trump Era: ‘It’s Who You Know’"
- "Setting the Record Straight: The Pardon Power is Part of the Rule of Law"
- "Pardon System Needs Fixing, Advocates Say, but They Cringe at Trump’s Approach"
- Will Prez Trump deliver on all the clemency "tidal wave" of hopefulness he has engendered?
"Reconceptualizing Criminal Justice Reform For Offenders With Serious Mental Illness"
The title of this post is the title of this notable new paper authored by E. Lea Johnston and available via SSRN. Here is its abstract:
Roughly 14% of male inmates and 31% of female inmates suffer from one or more serious mental illnesses, such as schizophrenia, bipolar disorder, and major depressive disorder. Policymakers and the public widely ascribe the overrepresentation of offenders with serious mental illness in the justice system to the “criminalization” of the symptoms of this afflicted population. The criminalization theory posits that the criminal justice system has served as the primary agent of social control over symptomatic individuals since the closure of state psychiatric hospitals in the 1950s and the tightening of civil commitment laws. The theory identifies untreated mental illness as the origin of individuals’ criminal justice involvement and mental health treatment as the clear solution to breaking their cycle of recidivism. This article evaluates the three main bodies of evidence offered in support of the criminalization theory: individuals’ movement from psychiatric hospitals to jails and prisons (“transinstitutionalization”), the heightened policing of individuals with serious mental illness, and the science linking mental illness and crime. This evaluation reveals that the criminalization theory — the understanding that animates most current policies aimed at offenders with serious mental illness—largely rests on intuitive assumptions that are often unverified and sometimes false.
A growing body of behavioral sciences literature constructs an alternative account of the relationship between mental illness and crime. Coined the “normalization theory,” it relies upon decades of research that demonstrate that clinical factors, such as diagnosis and treatment history, are not predictive of criminal activity. Instead, the same risks and needs that motivate individuals without mental illness also drive those with mental disorders to commit crimes. These “criminogenic risks” include, among others, substance abuse, employment instability, family problems, and poorly structured leisure time. Behavioral science researchers reject the premise that individuals with serious mental illness are overrepresented in the justice system because these individuals’ illnesses directly lead to criminal behavior. Instead, they theorize that serious mental illnesses fuel the greater accumulation and concentration of typical criminogenic risk factors. This recognition holds dramatic potential for the redesign of criminal justice programs. Programs that target the criminal behavior of offenders with mental illness should principally focus on addressing criminogenic risk factors that can be mitigated. Officials should also address mental health needs, but only to the extent necessary to facilitate a better criminogenic risk profile and fulfill constitutional obligations. Moreover, correctional experience suggests that institutions should allocate scarce programmatic resources according to offenders’ risk of reoffending and potential to achieve programmatic goals. These insights, which federal agencies are beginning to recognize, hold radical implications for the redesign — and possibly the existence — of jail diversion, mental health courts, specialized probation and parole, and reentry programs for offenders with serious mental illness.
Tuesday, October 09, 2018
Justice Kavanaugh joins the ACCA fray in his first set of SCOTUS arguments
As noted in this prior post, a new Supreme Court, due to the addition of new Justice Brett Kavanaugh, got started working this morning by hearing two cases concerning the application of the Armed Career Criminal Act. Via SCOTUSblog, I see the oral argument transcript in Stokeling v. United States is available on at this link and the transcript in United States v. Stitt is at this link. Helpfully, this additional post from SCOTUSblog provides these highlights:
In Stokeling v. United States, about whether a state robbery offense that includes “as an element” the common-law requirement of overcoming “victim resistance” is categorically a “violent felony” under the ACCA.
This argument has some moments that even young spectators seem to enjoy, such as when Roberts describes having his law clerks try to pull a dollar bill out of his hand while he held tight. (This was in response to an argument in the petitioner’s merits brief that “robbery can … occur where the offender does no more than grab cash from someone’s closed fist, tearing the bill without touching the person.”)
“It tears easily if you go like this,” Roberts says to Brenda Bryn, the lawyer for petitioner Denard Stokeling, motioning as if to tear a bill in half. “But if you’re really tugging on it … it requires a lot of force, more than you might think.”
Justice Sonia Sotomayor asks about whether a “ordinary pinch” can involve sufficient force to break the law. And to demonstrate, she pinches her neighbor on her right, Justice Neil Gorsuch. At that moment, he is lifting his coffee mug for a sip, and his wide-eyed reaction to being pinched suggests a mix of bemusement and mild alarm.
Whenever a justice asks a question, Kavanaugh looks down the bench at his colleague. He sometimes dons his reading glasses, and he jots notes. We cannot see whether he has his trademark Sharpie marker.
At 10:25 a.m., Kavanaugh has his first question, asking Bryn about her arguments relating to a 2010 Supreme Court ACCA decision, Curtis Johnson v. United States. “In Curtis Johnson, you rely heavily on the general statements of the court, but the application of those general statements was to something very specific: Battery and a mere tap on the shoulder,” Kavanaugh says to Bryn. “And all Curtis Johnson seemed to hold was that that was excluded. So why don’t we follow what Curtis Johnson seemed to do in applying those general statements to the specific statute at issue here and why wouldn’t that then encompass the Florida statute, which requires more than, say, a tap on the shoulder?”
In the second argument, for the consolidated cases of United States v. Stitt and United States v. Sims, the question is whether burglary of “a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as ‘burglary’” under the ACCA. Kennedy apparently decides that one hour of argument about the ACCA is enough, and he slips out at the break between the two arguments.
The Stitt and Sims argument will lead to questions about cars with mattresses, homeless people living in their cars in New York and Washington, and unoccupied recreational vehicles and campers.
Alito tells Erica Ross, an assistant to the solicitor general arguing that burglary of an unoccupied mobile structure should count as a strike under the ACCA, that the court has “made one royal mess” of its interpretations of the federal statute. Ross says that is something the court may need to think about in “some case,” but “I apologize … for continuing to bring us back to this case.” This simple point really tickles Justice Clarence Thomas for some reason, and he laughs heartily for several seconds.
Kavanaugh asks more questions in this second argument, though he also loses a couple of what I call “faceoffs” — when two justices battle for the floor, continuing to speak until one relents. He defers to Justice Ruth Bader Ginsburg at one point, and to Kagan at another. (Although the rule of thumb is that a junior justice ought to defer to a senior colleague in such situations, that rule is not always observed.)
Kavanaugh will have several extended colloquies, appearing more at ease with each one. Several times, Jeffrey Fisher of Stanford Law School, the court-appointed lawyer for the respondents in the second case, begins his answer by saying, “Well, Justice Kavanaugh, …” It is in those tiny moments that the reality sinks in that Brett Kavanaugh of Maryland is now an associate justice of the Supreme Court of the United States.
Despite fear-mongering opposition ads, drug sentencing and prison reform initiative polling strong in Ohio
I have blogged here and elsewhere about the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio. Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1. The Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1.
I have not previously noted here the notable fear-mongering about Issue 1 that has emerged in recent months focused particularly on its effort to reduce drug possession offenses to misdemeanors and to allow prisoners to earn more time off their prison sentences. In late August, Ohio Supreme Court Chief Justice Maureen O'Connor wrote a public letter warning of “catastrophic consequences" for Ohio if Issue 1 passes, and last week Gubernatorial candidate Mike DeWine began running a campaign ad involving local sheriffs stating "If you’re not scared [by Issue 1], you should be." Lots of other judges and prosecutors and law enforcement official have used similar language their advocacy against Issue 1.
But, perhaps signalling just how strong the public supports significant drug sentencing and prison reform, the first big public poll on Issue 1 was released today and it shows the initiative with a nearly 18 point lead. Here is a basic report on this poll:
A criminal justice reform question on the Ohio statewide ballot has support from nearly 48 percent of likely voters while 30.5 percent oppose it and 21.7 percent aren’t sure how they’ll vote on the matter, according to a new poll released Tuesday by Baldwin Wallace University Community Research Institute....
The Baldwin Wallace poll, which was conducted Sept. 28 to Oct. 8, shows DeWine has 39.7 percent, Cordray 37.1 percent, Libertarian Travis Irvine has 4.3 percent, Ohio Green Party candidate Constance Gadell-Newton has 3.4 percent and 15.4 percent of voters are undecided. The poll has a margin of error of plus or minus 3.5 percent.
Notably, the full poll results indicate women voters favor Issue 1 by a 22 point margin (49 to 27) and Democrats favor Issue 1 by a 35 point margin (57 to 22). Assuming this poll numbers are solid, this results suggest to be that Issue 1 is quickly likely to pass if it turns out that women and/or Democrats end up being those especially motivated to show up to vote this November.
Prior related posts:
- Interesting and intricate Ohio drug sentencing initiative poised to qualify for November 2018 ballot
- Ohio gubernatorial candidate talking up criminal justice reform while advocating for state constitutional drug sentencing initiative
- Events and resources covering Ohio sentencing and prison reform ballot initiative known now as Issue 1
- Excited to hear Shon Hopwood speak about earned prison credit as Ohio considers ballot initiative known now as Issue 1
UPDATE: Another (smaller) poll was released on October 10 concerning Issue 1, and it showed a much closer contest. This press article provides these details:
Ohio voters support a constitutional amendment to reduce penalties for some drug crimes and make other criminal justice reforms, according to a new poll released on the first day of early voting.
Issue 1 has the support of 43 percent of likely midterm voters surveyed in a Suffolk University/Enquirer poll; 38 percent oppose the measure. Nearly one in five said they had not yet decided how to vote....
The poll surveyed 500 likely Ohio voters by landline and cell phone from Oct. 4 to 8. The poll has a margin of error of 4.4 percentage points....
Issue 1 backers didn’t intend for the measure to become partisan but it has become a dividing line in the race for governor. Democrat Rich Cordray supports it as a way to reduce overcrowded prisons and funnel more money toward drug addiction treatment. His Republican opponent, Ohio Attorney General Mike DeWine, has said Issue 1 will allow drug dealers to avoid prison time and lead to more drug overdose deaths.
Among likely Cordray voters, 53 percent said they also support Issue 1 compared to only 33 percent of DeWine voters.
Justice Sotomayor issues cert statement discussing "deeply troubling concern" with solitary confinement
The Supreme Court's order list this morning includes no cert grants, but does have an interesting eight-page statement by Justice Sotomayor starting this way:
A punishment need not leave physical scars to be cruel and unusual. See Trop v. Dulles, 356 U.S. 86, 101 (1958). As far back as 1890, this Court expressed concerns about the mental anguish caused by solitary confinement. These petitions address one aspect of what a prisoner subjected to solitary confinement may experience: the denial of even a moment in daylight for months or years. Although I agree with the Court’s decision not to grant certiorari in these cases because of arguments unmade and facts underdeveloped below, I write because the issue raises deeply troubling concern.
UPDATE: Amy Howe provides this helpful context and summary of this case via this post at SCOTUSblog:
The justices announced today that they will not hear the cases of three Colorado inmates who argue that holding them in solitary confinement, without any access to the outdoors or concerns about security, violates the Constitution’s ban on cruel and unusual punishment. Two of the inmates, Jonathan Apodaca and Joshua Vigil, didn’t go outdoors for more than 11 months, while the third inmate, Donnie Lowe, didn’t have outdoor recreation for several years. Prison officials argued that they could not be sued because it was not clearly established -- the standard to overcome the general presumption that government officials are immune from lawsuits -- that their solitary-confinement policy was unconstitutional. The U.S. Court of Appeals for the 10th Circuit agreed, and the inmates asked the Supreme Court to weigh in. Justice Stephen Breyer has expressed concern about holding inmates in solitary confinement before: Last year he dissented from the Supreme Court’s announcement that it would not block the execution of a Texas death-row inmate who had been held in solitary confinement for 20 years. And now-retired Justice Anthony Kennedy suggested in 2015 that extended periods of solitary confinement might violate the Eighth Amendment’s bar on cruel and unusual punishment. But there were apparently not four votes to take up the issue now.
In an eight-page opinion regarding the court’s decision to deny review, Justice Sonia Sotomayor suggested that the justices might have rejected these cases because the lower courts had not focused on whether Colorado had valid security reasons for its solitary-confinement policy. But Sotomayor then went on to express “grave misgivings” about solitary confinement, noting that as many as 100,000 inmates (including many who are not on death row) are held in cells alone. And she pointed out that Donnie Lowe -- who was held in solitary confinement for 11 years while serving time for second-degree burglary and smuggling contraband into prison -- died earlier this year: “While we do not know what caused his death,” she concluded, “we do know that solitary confinement imprints on those that it clutches a wide range of psychological scars.” She ended her opinion with a plea to courts and prison officials to “remain alert to the clear constitutional problems raised by keeping prisoners like Apodaca, Vigil, and Lowe in ‘near-total isolation’ from the living world, in what comes perilously close to a penal tomb.”
On eve of execution, Tennessee Supreme Court rejects challenge to state's execution protocol
As reported in this legal news story, "Tennessee’s execution method is not cruel and unusual, the state supreme court ruled Monday, three days before the state’s next execution, because inmates challenging its three-drug lethal injection protocol did not present a viable alternative." Here is more on the ruling and a link to the full opinion:
Twenty-seven death-row inmates claimed the execution protocol violates the Eight Amendment because midazolam, a sedative, does not counteract the burning and suffocating effects of the next two drugs: vecuronium bromide, a paralytic, and potassium chloride to stop the heart.
But in the 4-to-1 ruling Monday, Chief Justice Jeffrey Bivins wrote: “(T)he Plaintiffs failed to carry their burden to establish that Tennessee’s current three-drug lethal injection protocol constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution or article 1, section 16 of the Tennessee Constitution. As a result, we need not address the Plaintiffs’ claim that the three-drug protocol creates a demonstrated risk of severe pain.”
That burden, Bivins said, included offering a viable alternative, as laid out by the U.S. Supreme Court in Glossip v. Gross (2015), which unsuccessfully challenged Oklahoma’s virtually identical execution protocol.
The Tennessee inmates said at trial that the state could execute them through Tennessee’s other execution protocol: one lethal dose of pentobarbital. Texas and Georgia executed people that way this year.
But the Tennessee Supreme Court disagreed and sided with the state, which said it could not obtain pentobarbital. Many pharmaceutical companies refuse to provide the drug for executions. Bivins also ruled that the court could not “establish new law” by accepting the inmates’ argument that Tennessee secrecy laws involving death penalty protocols affected their ability to argue their case.
Tennessee is scheduled to execute Edmund Zagorski on Thursday, October 11.
Monday, October 08, 2018
Highlighting efforts by some prosecutors to help with expungements
Today's New York Times has this notable new article under the headline "Convicts Seeking to Clear Their Records Find More Prosecutors Willing to Help." Here are excerpts:
[A]lthough law enforcement officials have traditionally opposed [broadened expungement and sealing laws] for an array of reasons — including accountability, a belief that records are vital to public safety, and unstinting support for crime victims — a growing number of them have begun to recognize that criminal records can be enduring obstacles to self-sufficiency and even help trap people in cycles of crime. Increasingly, they are overtly endorsing mercy through record suppression.
“It’s just a matter of trying to remove obstacles that would make it more difficult for someone to become a productive member of the community,” said Terry Curry, the elected prosecutor in Marion County, which includes Indianapolis and has a population approaching 1 million residents. “If an individual has stayed out of the criminal justice system, then why should they continue to have that stain forever?”
Though in most places the paperwork burden for expungements has fallen on private lawyers and nonprofit legal clinics, South Florida prosecutors now routinely hold events intended to help people wipe away records of arrests but not convictions. A district attorney in rural Louisiana leads information sessions about expungements for some felony convictions after a 10-year waiting period; a Vermont prosecutor recently held a record-clearing clinic; and the authorities near Fort Bragg, N.C., attracted about 500 people to an expungement event last year. Last month, the Brooklyn district attorney promoted “Begin Again” events, where, one advertisement said, people were invited to “clear your record of a misdemeanor marijuana conviction or warrant.”
But there is still a national patchwork of policies and terminologies, from destroying records to sealing them to simply noting that a conviction is effectively vacated. States have imposed various waiting periods, conditions and fees. Some places have made their processes deliberately simple, while others have complicated approaches that may require legal assistance or court hearings.
The proliferation of new laws, and newfound enthusiasm on the part of some prosecutors, has hardly erased all doubts about the wisdom of suppressing records. Many prosecutors, especially in rural areas, remain skeptical of any action to show mercy for a person’s past, and some judges engage in measured resistance, holding hearings more to complain about an expungement law than to weigh an application’s merits. “You have prosecutors and judges who just think it’s wrong: ‘You’ve caused trouble in this county, you’re a wrongdoer and you shouldn’t get a blank slate,’” said Bernice Corley, the executive director of the Indiana Public Defender Council.
But Margaret Love, the executive director of the Collateral Consequences Resource Center and a former United States pardon attorney, said that clemency and expungements are part of the criminal justice process for a reason. “It ought to be something that prosecutors welcome and use to their advantage to create criminal justice success stories, to advertise criminal justice success stories,” she said.
The nuanced approach in Indiana, where officials hoped that expungements would improve people’s job prospects, is increasingly seen as a model. Under its so-called Second Chance law, the state has a tiered system in which the offense, and the outcome of the case, determines the waiting period and the exact relief. Indiana does not destroy records, but can limit access to them and mark them as expunged, and crime victims are permitted to express their views before any decision is made. “Indiana should be the worst place in America to commit a serious crime and the best place, once you’ve done your time, to get a second chance,” Gov. Mike Pence, now the vice president, said when he signed the records measure into law in 2013.
I am glad to see this topic garner the attention of the Times, though I am a bit disappointed not to see any mention of the particularly notable marijuana-reform developments on this front. Specifically, as I discussed briefly in this recent paper for the Federal Sentencing Reporter, a number of prosecutors in California began taking proactive steps to clear prior marijuana convictions after the state enacted marijuana legalization in 2016.
First cases for a new SCOTUS: two more efforts to sort out ACCA uncertainty with old criminal history
A new Supreme Court, due to the addition of new Justice Brett Kavanaugh, will get to work on old convictions by considering Tuesday morning the latest possible twists in an ever-twisting jurisprudence concerning the application of the Armed Career Criminal Act. The latest ACCA fun comes in the form of oral arguments in Stokeling v. United States and United States v. Stitt. Here are the basics on these cases via SCOTUSblog coverage:
Stokeling Issue: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.
Stitt Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).
Sunday, October 07, 2018
I just noticed this recent paper on SSRN that had a title too good not to blog. The paper is authored by Ying Hu, and here is its abstract:
When a robot harms humans, are there any grounds for holding it criminally liable for its misconduct? Yes, provided that the robot is capable of making, acting on, and communicating the reasons behind its moral decisions. If such a robot fails to observe the minimum moral standards that society requires of it, labeling it as a criminal can effectively fulfill criminal law’s function of censuring wrongful conduct and alleviating the emotional harm that may be inflicted on human victims.
Imposing criminal liability on robots does not absolve robot manufacturers, trainers, or owners of their individual criminal liability. The former is not rendered redundant by the latter. It is possible that no human is sufficiently at fault in causing a robot to commit a particular morally wrongful action. Additionally, imposing criminal liability on robots might sometimes have significant instrumental value, such as helping to identify culpable individuals and serving as a self-policing device for individuals who interact with robots. Finally, treating robots that satisfy the above-mentioned conditions as moral agents appears much more plausible if we adopt a less human-centric account of moral agency.
The article does not discuss sentencing until its very end, but this paragraph covers robot punishment possibilities:
Assuming we can punish robots, a new question naturally follows: how should a robot be punished? In this regard, a range of measures might be taken to secure that the robot commit fewer offenses in the future. These include:
a. physically destroying the robot (the robot equivalent of a “death sentence”);
b. destroying or re-write the moral algorithms of the robot (the robot equivalent of a “hospital order”);
c. preventing the robot from being put to use (the robot equivalent of a “prison sentence”); and/or
d. ordering fines to be paid out of the insurance fund (the robot equivalent of a “fine”).
In addition, the unlawful incident can be used to design a training module to teach other smart robots the correct course of action in that scenario.
You be the Illinois judge: what sentence for Jason Van Dyke after second-degree murder conviction in slaying of Laquan McDonald?
Though somewhat eclipsed by Supreme Court confirmation controversies, a high-profile criminal case culminated with a murder conviction on Friday when a jury found Chicago police Officer Jason Van Dyke guilty Friday of second-degree murder in the 2014 shooting of 17-year-old Laquan McDonald. This CNN article about the verdict details that Van Dyke was also "found guilty of 16 counts of aggravated battery with a firearm [but] found not guilty of official misconduct." And this AP piece, headlined "With conviction, Van Dyke likely avoided decades behind bars," highlights some of the sentencing realities that attend this verdict:
Jurors convicted Chicago police Officer Jason Van Dyke for murder and aggravated battery in the slaying Laquan McDonald, the black teenager who was shot 16 times as he walked away carrying a knife on Oct. 20, 2014. But a legal expert explained that the 40-year-old Van Dyke is likely looking at less than 10 years in prison for killing the teen rather than many decades because jurors opted to convict him of second- and not first-degree murder.
After less than two full days deliberating on three weeks of testimony, jurors returned Friday with 17 guilty verdicts and one acquittal. By far the most serious charge Van Dyke faced originally was first-degree murder. But Judge Vincent Gaughan told jurors before they started deliberations that they had the option of replacing first-degree murder with second-degree murder.
First-degree required a finding that Van Dyke's use of deadly force wasn't justified — that it was both unnecessary and unreasonable. But Gaughan said jurors could find that Van Dyke truly believed his life was in jeopardy but that that belief wasn't reasonable. That's the criteria for second-degree murder.
The jury also found Van Dyke guilty of all 16 counts of aggravated battery with a firearm. Each count corresponded to every bullet Van Dyke shot into McDonald. They acquitted him on the least serious charge, official misconduct....
First-degree murder carries a maximum sentence of life imprisonment. And with enhancements for having used a gun, Van Dyke would have faced a mandatory minimum of 45 years, according to Chicago defense attorney Steve Greenberg, who has defended clients at more than 100 murder trials. Such a sentence, at Van Dyke's age, could have amounted to life. The punishment for second-degree murder is no less than four years but no more than 20 years behind bars.
Jurors weren't told anything about the range of punishments for each charge. The judge did tell them that whether one charge might carry a greater or lesser sentence shouldn't factor at all into their decisions.
Each count of aggravated battery carries a mandatory minimum six years and a maximum of 30 years in prison. If Van Dyke had to serve six for each of the 16 counts — and do so one sentence after another - that would add up to 96 years. But Greenberg said judges almost always order defendants to serve such sentences simultaneously. So, if Van Dyke gets the minimum for each count, he'd serve six years for all the battery convictions.
Another possibility is that the defense will ask, under complicated legal rules, for the judge to merge the crimes for which Van Dyke is convicted for sentencing purposes since they were all tied to a single event, Greenberg said. That could mean Van Dyke is effectively sentenced only for second-degree murder, with its lower four-year mandatory minimum.
For a man convicted with no previous criminal record, Greenberg said the mandatory minimum is his best guess for a sentence handed down on Van Dyke. "I would be shocked if he got a day over the four or six years," Greenberg said.
Greenberg said prison conditions for an officer, like Van Dyke, could be rougher than for average convicts. As a white officer convicted of killing a young African-American, prison authorities are likely to conclude he has to be kept away from other prisoners for his own safety. "He will probably be in a cell by himself," Greenberg said. "It will be very hard time." That may have already started. At prosecutors' request, Van Dyke's bond was revoked minutes after the verdicts were announced and Judge Gaughan ordered he be held in jail pending sentencing. He stood up from the defense table, then put his arms behind his back as two deputies led him away.
I am not an expert on Illinois sentencing law, but presuming this article has the law corrected, I am struck that the mandatory minimum prison term for second-degree murder in the state is 50% less than mandatory minimum for aggravated battery with a firearm. It is also notable and telling that if the sentencing judge here were permitted and inclined to run the various sentences consecutively rather than concurrently, the defendant here would be facing 100 years in prison as the applicable mandatory minimum. But if the crimes are found to be "merged" under Illinois law, four years could become the minimum and 20 years the max.
Friday, October 05, 2018
So how might recent events impact Judge Kavanaugh's views on criminal cases?
I have been thinking about the question in the title of this post for the last few weeks. Today seems like the right time to encourage readers to weigh in given this morning's Senate vote suggesting that we will soon be using the label "Justice" rather than "Judge" in front of Brett Kavanaugh's name.
I have been blogging in various ways ever since Justice Anthony Kennedy announced his retirement (see posts below) that the next Justice could be a critical vote on a lot of criminal justice issues. The optimist in me wants to believe that the last few weeks have given Judge Kavanaugh an even deeper appreciation for the rights of accused individuals (as noted in post below, he has already expressed concern about sentencing based on acquitted conduct). This new Crime Report piece, headlined "Would a Resentful Justice Kavanaugh Derail Juvenile Justice Reform?," highlights how one can readily take a negative view on the consequences of the events of recent weeks on coming SCOTUS jurisprudence. Here are excerpts from the Crime Report piece:
The furor over Supreme Court nominee Brett Kavanaugh’s alleged sexual misconduct as a 17-year-old raises questions about how he would rule on key juvenile justice cases if he is confirmed by the Senate, a John Jay College conference was told Thursday. “I bet you [Kavanaugh] is going to be pretty pissed off about how we all tried to derail his nomination with something he did when he was 17,” said Elton Anglada, president of the Juvenile Defender Association of Pennsylvania.
Anglada said that if Kavanaugh were asked to rule in cases that required the Court to re-examine previous rulings establishing that youths under 18 could not be held legally responsible for criminal acts, based on scientific findings about adolescent brain development, he might be tempted to turn his current critics’ words against them....
“These [juvenile justice] cases are going to go back up to the Supreme Court,” Anglada predicted. “And I think about myself standing in front of Kavanaugh three or four years from now arguing that you shouldn’t revisit Graham, Miller and Roper and my client should be treated differently because he’s a juvenile, and we don’t want to hold a juvenile responsible for his entire life for something he did 35 years ago. “Say that to Brett Kavanaugh with a straight face and see what answer you get.”
I am not inclined to believe Chief Justice Roberts or Justice Gorsuch is eager to revisit Graham, Miller and Roper, so I am not sure a future Justice Kavanaugh is the only key vote in future Eighth Amendment juvenile justice cases. But even if there are not five votes to reconsider Graham, Miller and Roper, there are a host of on-going uncertainties about the reach and application of these cases and their possible future expansion. Again, I kind of want to believe that the events of the last few weeks might make actually make a fair-minded person even more open-minded about the idea that we should not "hold a juvenile responsible for his entire life for something he did 35 years ago," but I may be fooling myself here and elsewhere.
So, dear readers, thoughts on the question in the title of this post (on the juvenile justice issue or any others covered in prior posts linked below)?
A few prior posts with thoughts on sentencing jurisprudence in a post-Justice Kennedy Court:
- Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more
- With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers
- Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely?
- DC Circuit Judge Brett Kavanaugh nominated by Prez Trump to replace Justice Kennedy
- Quick and helpful look at some of Judge Brett Kavanaugh's criminal justice work
- Could Judge Brett Kavanaugh, as a SCOTUS Justice, encourage his colleagues to take up acquitted conduct sentencing?
- An (overly) optimistic account of how new Justices could disrupt federal sentencing based on uncharged and acquitted conduct
- Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation."
- After 40+ years as a senator, Orrin Hatch now expresses concerns about acquitted conduct to promote Judge Kavanaugh's elevation
Thursday, October 04, 2018
En banc Eleventh Circuit finds way to uphold key clause of § 924(c) mandatory-minimum statute against vagueness challenge
If you cannot get enough of debates over federal statutory interpretation and modern "crime-of-violence" vagueness jurisprudence, the Eleventh Circuit today has delivered for you over 150 pages of excitement in the form of an en banc ruling in Ovalles v. US, No. 17-10172 (11th Cir. Oct. 4, 2018) (available here). Here is part of the start of the majority opinion:
The question before us is whether one of the key provisions of an important federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague. As relevant to our purposes, § 924(c) makes it a federal offense — punishable by a term of imprisonment ranging from five years to life — for any person to use, carry, or possess a firearm in connection with a “crime of violence.” 18 U.S.C. § 924(c)(1)(A). The provision challenged here — § 924(c)(3)’s “residual clause” — defines the term “crime of violence” to mean a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Id. § 924(c)(3)(B).
This case is in some respects a successor to Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in which the Supreme Court invalidated similarly-worded residual clauses on vagueness grounds. In the wake of those decisions, all here seem to agree that if § 924(c)(3)’s residual clause is interpreted to require determination of the crime-of-violence issue using what (in court-speak) has come be called the “categorical approach,” the clause is doomed.... In both Johnson and Dimaya, the Court concluded that application of a standard that requires a reviewing court “to ‘imagine’ an ‘idealized ordinary case of the crime’” rendered the challenged clauses impermissibly vague. Dimaya, 138 S. Ct. at 1214 (quoting Johnson, 135 S. Ct. at 2557–58).
On the flip side, Johnson and Dimaya also make clear — and it is common ground here — that if § 924(c)(3)’s residual clause is instead interpreted to incorporate what we’ll call a “conduct-based approach” to the crime-of-violence determination, then the provision is not unconstitutionally vague. As its name suggests, the conduct-based approach, in stark contrast to the categorical, focuses not on formal legal definitions and hypothetical “ordinary case[s],” but rather on the real-world facts of the defendant’s offense — i.e., how the defendant actually went about committing the crime in question....
The obvious (and decisive) question, then: Which is it here — categorical or conduct-based? Because we find ourselves at this fork in the interpretive road — the categorical approach imperiling § 924(c)(3)’s residual clause, a conduct-based reading saving it—we invoke the canon of “constitutional doubt.” Pursuant to that “elementary rule,” the Supreme Court has long held, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.” Hooper v. California, 155 U.S. 648, 657 (1895)....
Joining the Second Circuit, which recently came to the same conclusion, see United States v. Barrett, __ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018), we find that § 924(c)(3)(B) can be read to embody the conduct-based approach — and therefore, under the constitutional-doubt canon, that it must be. Accordingly, we hold that § 924(c)(3)(B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant’s offense.
The rest of the majority opinion runs less than 50 pages, followed by more than 100 pages of concurrences and dissents that cannot be readily summarized. But Judge William Pryor's concurrence, which garners a number of addition votes, gets off to this start which I really appreciate and applaud:
How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It’s nuts. And Congress needs to act to end this ongoing judicial charade.
I join the majority opinion in full, but I write separately to explain why our resolution of this appeal forecasts how Congress should address the vexing issue of how to punish violent recidivists under laws like the Armed Career Criminal Act: by restoring the traditional role of the jury. The caselaw about how to punish recidivists has confounded the federal courts for decades and has made the resolution of this appeal tricky, but our decision also suggests a way out of the mess. Although our decision involves a contemporaneous crime and not a prior conviction, our conclusion that a jury may make findings about a defendant’s violent conduct applies with equal force to recidivist statutes. Indeed, the modern abandonment of the jury’s traditional role of making findings about prior convictions has created more problems than it has solved.
October 4, 2018 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (5)
Massive new report on the state of federal criminal defense by Ad Hoc Committee to Review the Criminal Justice Act
Released today is this 300+-page report that should be of interest to anyone who follows the federal criminal justice system. The report is titled simply 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act, and here are some excerpts from the report's executive summary:
This Committee was tasked to study one of the most fundamental of rights in America, the right of an accused person to legal counsel. Enshrined in the Constitution under the Sixth Amendment, the right to assistance of counsel is a pillar of our adversarial system of justice and our government....
Chief Justice of the United States John G. Roberts, Jr. tasked this Committee with studying the current quality of public defense in federal courts nationwide provided under the auspices of the Criminal Justice Act — groundbreaking legislation passed in 1963 and expanded in 1970. That the United States has a fully developed system of public defense at the federal level is evidence of considerable progress in making the Sixth Amendment right to counsel real in practice.... While it has been decades since people charged with crimes — in many cases facing life-altering punishments — faced prosecutor, judge and jury alone, representation by a skilled and devoted advocate with sufficient resources to mount a vigorous defense is far from guaranteed. Indeed, the quality of defense appears to be highly uneven across the country and from case to case within districts.
Fully 90 percent of defendants in federal court cannot afford to hire their own attorney. Justice in their cases, and indeed the future course of their lives, depends on the quality of the system that provides lawyers to represent them. The subject of the Committee’s Report is the examination of that system’s successes and failures, as well as a course of action for improving it....
It was only in studying the federal defender system as a whole and hearing from witnesses across the country that the members of this Committee have come to the unanimous conclusion that despite the best efforts of all parties involved in delivering effective representation under the Sixth Amendment, the current structure for providing public defense results in disparities in the quality of representation that have serious consequences for some defendants. The Committee hopes its report illuminates the scope and nature of these problems and underlying structural flaws from which they arise — and makes a persuasive case for meaningful change.
Third Circuit going en banc to reconsider reach and application of Eighth Amendment to lengthy juvenile term-of-years sentence
In this post back in April, I noted the remarkable Third Circuit panel opinion in US v. Grant, No. 16-3820 (3d CIr. April 9, 2018) (available here), addressing the application of Eighth Amendment limits on juvenile sentences. The panel opinion in Grant is technically no longer law as of today thanks to this order by the Third Circuit:
A majority of the active judges having voted for rehearing en banc in the above captioned cases, it is ordered that the government’s petition for rehearing is GRANTED. The Clerk of this Court shall list the case for rehearing en banc on February 20, 2019. The opinion and judgment entered April 9, 2018 are hereby vacated.
In short form, defendant Corey Grant in the early 1990 was initially sentenced to LWOP for crimes committed when he was 16-years old. After Graham and Miller, he was resentenced to a 65-year federal prison term. The panel opinion found this term unconstitutional and suggested that "lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform." The full Third Circuit is apparently no so keen on this approach, and it will thus address this matter anew in the coming year.
October 4, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)
Excited to hear Shon Hopwood speak about earned prison credit as Ohio considers ballot initiative known now as Issue 1
For months I have been flagged here and elsewhere the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio. Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1. With early voting in Ohio now just days away, the new Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has its latest Issue 1 program taking place today.
Specifically, at the College of Law at 12noon, is the second of our five public panels under the title Ballot Insights. (Registration for these panels is available at this link, where you can also find more details on the focus for each of the panels.) Today's panel is focused on the Issue 1 provisions expanding "earned time credit" for Ohio prisoners to reduce their sentences through rehabilitative programming, and we have the pleasure of hosting Shon Hopwood as one of the panelists.
In addition to the panels, DEPC has also created a Resources Page for Issue 1, which includes links to the ballot language, position statements from various groups and select media coverage. DEPC is also building out a Commentary Page on Issue 1 for publishing original commentary that the Center has solicited.
Prior related posts:
- Interesting and intricate Ohio drug sentencing initiative poised to qualify for November 2018 ballot
- Ohio gubernatorial candidate talking up criminal justice reform while advocating for state constitutional drug sentencing initiative
- Events and resources covering Ohio sentencing and prison reform ballot initiative known now as Issue 1
Wednesday, October 03, 2018
Attorney General Jeff Sessions boasts about federal prosecutors now "running up the score against the criminals"
As of September 27, 2018, the federal prison population was reported at 181,726, the lowest level in more than a dozen years. But this new speech that Attorney General Jeff Sessions delivered today in Utah suggests it may be only a matter of time before this population is heading up again. Here is an excerpt that leads me to this view:
Forging new relationships with local prosecutors and building on existing relationships will ensure that the most violent offenders are prosecuted in the most appropriate jurisdiction. Our goal is not to fill up the courts or fill up the prisons. Our goal is to reduce crime, just as President Trump directed us to do. Our goal is to make every community safer — especially the most vulnerable....
Our prosecutors in Utah are running up the score against the criminals. They charged 29 percent more defendants in 2017 than they did in 2014. That includes 64 percent more drug trafficking defendants, 44 percent more violent crime defendants, and 40 percent more illegal re-entries....
In 2018, the Department of Justice prosecuted more violent criminals than in any year on record. At the same time, we charged the highest number of federal firearm defendants in history. Fully 41 percent more gun defendants were prosecuted in fiscal year 2017 than they were just five years before.
This past year we broke our own record — and it wasn’t even close. Over the last fiscal year — October 1 of 2017 up to September 30, 2018 — the Department of Justice brought charges against 15 percent more violent crime defendants than we did in the previous, record-breaking year. That’s 20 percent more violent crime defendants than we charged in fiscal 2016.
We also charged nearly 20 percent more firearm defendants than we did in 2017 and 30 percent more than we charged in 2016. We’ve been so tough on illegal guns that we’re actually getting attacked in the press for it — if you can believe that.
Here’s what the critics don’t understand: we are going after violent felons. We are targeting the most dangerous people in the most violent areas who have guns....
Law enforcement pays dividends — because when we have safer streets, businesses are more likely to invest and create jobs, property values go up, and the people we serve are more likely to flourish. And so we are going to keep up this pace. We are going to keep supporting Utah’s state and local police. We’re going to keep arming them with the tools, resources, and expertise that they need to protect the people of this city and this state.
A publisher's request for submissions from formerly and currently incarcerated individuals
This webpage provides this basic information about an interesting new project: "The New Press, a public interest book publisher, and the Center for American Progress (CAP), a public policy think tank, request submission of essays for consideration to be included for publication in a book featuring criminal justice reform ideas from formerly and currently incarcerated individuals." This document provides these additional details:
The book has the working title of What We Know and is expected to be edited by Daryl Atkinson and Vivian Nixon, both formerly incarcerated individuals now leading criminal legal reform organizations. They are also members of the steering committee of the Formerly Incarcerated Convicted People’s Family Movement (FICPFM), a national effort to bring the voices of formerly incarcerated people and their families to the justice reform table.
Essays may be from 2500-5000 words and should be focused on a specific, serious, welldefined suggestion for how to improve a particular aspect of any part of our current system, from police encounters and arrests, to sentencing, incarceration, and re-entry. Essays should contain elements of the author’s personal story in service of illuminating the suggested reform. Thoughtful, original ideas that are not already widely in circulation and under discussion are especially welcome.
The top 12-20 essays will be published in the finished book, and the authors will receive $500 each. Authors of the top 50 essays that were not selected for publication will also receive $50 each. Co-authored pieces will be considered; additional payment for additional authors will be at the discretion of The New Press and CAP. The New Press, CAP, and the editors retain full and final authority over the selection of the pieces that are published and/or receive a financial award.
The New Press, CAP, and the editors reserve the right to reject or select essays for any reason allowed under law. However, essays will be selected based on the following:
I. Policy Recommendation: Applicants should clearly identify a specific issue or problem within the criminal justice system and propose a well-developed, targeted policy solution to address it.
II. Concept: Applicants are encouraged to propose new and progressive ideas for improving the criminal justice system. Policy proposals should be informed by lived experiences with the justice system.
III. Feasibility & Impact: Proposed reforms should be realistic and actionable, with the potential to create meaningful change within the criminal justice system.
IV. Readability: Successful essays will be engaging and combine narrative storytelling from the author’s own experience or knowledge, which illustrates a specific problem, with an original, constructive idea for how the problem might reasonably be remedied.
Tuesday, October 02, 2018
"Sentencing Reform: Fixing Root Problems"
The title of this post is the title of this new paper now available via SSRN authored by Peter Joy and Rodney Uphoff. Here is its abstract:
In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence.
In practice, however, too many criminal defendants receive lackluster representation, and few ever actually exercise their right to trial. Instead, our current criminal justice system is plea-bargain-driven, and the vast majority of state and federal criminal offenders plead guilty — approximately 97% of federal cases and 94% of state cases are resolved by guilty pleas rather than trials. Commenting on the prevalence of negotiated guilty pleas, the U.S. Supreme Court has stated that “plea bargaining is . . . not some adjunct to the criminal justice system; it is the criminal justice system.”
Why, then, are criminal defense lawyers able to persuade the vast majority of their clients to plead guilty, even those who are actually innocent? Put simply, it is because our system punishes so severely those who go to trial and lose. If we are serious about both minimizing the conviction of the innocent and sentencing reform, we must address this reality. This essay, therefore, focuses on two pernicious features of our current criminal justice system — misuse of plea bargaining and misuse of informants — that explain why so few criminal defendants exercise their right to trial. We conclude with proposals that might ameliorate those features of our system.
Challenging issues for SCOTUS in criminal cases that may impact only a few persons ever and the entire structure of government always
On the second oral argument day of the new Supreme Court Term, criminal law issues are front and center. Here is SCOTUSblog's overview via this round-up post:
Today the eight-justice court will tackle two more cases. The first is Gundy v. United States, in which the justices will consider whether a provision of the federal sex-offender act violates the nondelegation doctrine. Mila Sohoni previewed the case for this blog. Kathryn Adamson and Sarah Evans provide a preview at Cornell Law School’s Legal Information Institute, while Matthew Cavedon and Jonathan Skrmetti look at the case for the Federalist Society Review. Today’s second case is Madison v. Alabama, an Eighth Amendment challenge to the execution of a death-row inmate who has dementia and cannot remember his crime. This blog’s preview, which first appeared at Howe on the Court, came from Amy Howe. Lauren Devendorf and Luis Lozada preview the case for Cornell. Subscript Law’s graphic explainer is here. Tucker Higgins reports on the case for CNBC.
As the title of this post suggests, I think the Madison capital case is likely to impact only a few persons ever: only a few dozen of murderers are these days subject to real execution dates each year and only a very few of those persons are likely to able to make a credible claim of incompetence to seek to prevent the carrying out of a death sentence. The jurisprudential and philosophical issues in Madison still are, of course, very important and lots of SCOTUS cases may end up impacting only a few persons. But I cannot help but note what seems to me to be relatively small stakes in Madison.
I stress the limits of Madison in part because, as my post title suggests, I think the Gundy case could be the sleeper case of the Term because a major ruling on the nondelegation doctrine could radically reshape the entire modern administrative state. In this post last month, the original commentary of Wayne Logan concerning Gundy highlighted that SCOTUS has "not invalidated a congressional delegation in over eighty years ..., [and] the issue [taken up in Gundy could be] clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies."
Prior related preview posts:
- SCOTUS preview guest post: "Strange Bedfellows at the Supreme Court"
- Another effective preview of coming SCOTUS review of SORNA delegation in Gundy
- Previewing the two capital punishment administration cases before SCOTUS this fall
- Previewing SCOTUS consideration of capital competency (and making a case for abolition)
UPDATE via SCOTUSblog: The transcript of oral argument in Gundy v. United States is available on the Supreme Court website; the transcript in Madison v. Alabama is also available; and authored by Amy Howe here, "Argument analysis: A narrow victory possible for death-row inmate with dementia?"
October 2, 2018 in Collateral consequences, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (10)
New "Square One Project" already producing terrific paper on re-imagining criminal justice policy
This posting from the Laura and John Arnold Foundation (LJAF) describes a notable new criminal justice reform effort that formally launched a few weeks ago:
The Square One Project, a three-year initiative to rethink justice policies from top to bottom, launched [on September 20] at D.C.’s National Press Club. Square One brings together a diverse cross-section of academics, policymakers, and community organizers to re-examine traditional responses to crime and envision a new paradigm that can address systemic inequalities such as poverty and racial discrimination. The Columbia University Justice Lab, John D. and Catherine T. MacArthur Foundation, and Laura and John Arnold Foundation (LJAF) support the project.
Square One seeks to reform a criminal justice system in urgent need of change . Over the last four decades, the number of people in America’s prisons and jails has increased 500 percent. Prisons are overcrowded, states struggle to fund basic services, and racial inequities inherent in the system have devastated communities. “The project asks: If we set aside the traditional response to crime, and ask first whether other responses might be more effective — if we begin at ‘square one’ — how would criminal justice policy be different?” said Kelli Rhee, President and CEO of LJAF.
The initiative consists of three core components: an executive session focusing on justice policy; roundtables in cities across the country; and a comprehensive community engagement and communications strategy. In the executive session, about 30 leading experts, practitioners, and scholars will meet twice a year to develop and refine proposals. “This format will test and push participants to challenge their own thinking and consider new options,” said Bruce Western, co-director of the Columbia University Justice Lab. “These frank, off-the-record discussions will ultimately yield fresh discourse and new research among academics, policymakers, practitioners, and communities.”
Roundtable sessions will invite broader engagement with community members and a variety of stakeholder groups, tackling a single, complex policy challenge. The first Square One roundtable is scheduled for Oct. 11-13 in Durham, N.C., in partnership with North Carolina Central University. The discussions, held at the NCCU School of Law, will be live-streamed.
As shown in this page at Square One's website, the executive session part of the project is already producing some very interesting papers by some very interesting people:
Bruce Western, The Challenge of Criminal Justice Reform
Arthur Rizer, A Call for a Revised Set of Values in Criminal Justice
Though I am not sure if additional papers will be emerging from the Square One executive sessions or the roundtables, I am sure folks interested in thinking deeply about the present and future of criminal justice policies and practices in the United States should be watching what this project continued to produce.
Monday, October 01, 2018
A bunch of Dimaya GVRs and a hundreds of criminal case cert denials in first SCOTUS order list of October Term 2018
As noted in this post a few weeks ago, law professor Rory Little had this great lengthy post at SCOTUSblog previewing the criminal side of the Supreme Court's docket under the heading "Criminal cases in the October 2018 term: A law professor’s dream." But as the Court's term officially gets started today, this first SCOTUS order list may seem a bit like a criminal defense lawyer's nightmare because of the extraordinary number of criminal cases in which cert is denied. Of course, every first order list to start every new Term includes a huge number of denials of cert in all the criminal cases that stack up over the summer break. But it still is a bit startling to scroll through page after page after page after page of what all appear to be criminal cases in which cert has been denied this morning.
That all said, the SCOTUS order list does include a bunch of GVRs based on the vagueness ruling in Sessions v. Dimaya, most of which appear to involve criminal cases. I have not been able to follow all the Dimaya fall-out as closely as some true experts, but I suspect that these GVRs are noteworthy not only because they come amidst a sea of cert denials. Also, there might well be some significant criminal case relists hiding in the certiorari carnage that today's order list reflects. So criminal justice fans and sentencing fans may still be able to find a SCOTUS silver lining in today's order list. And, of course, on so many fronts, SCOTUS activity is just getting heated up.
Thursday, September 27, 2018
Dare I create an open thread for comments on a (sure-to-be-historic) day of overload?
I am likely not to have any time for blogging over the next couple of days because of this exciting event taking place in my building that my Drug Enforcement and Policy Center is helping to host:
"From Punishment to Public Health: Embracing Evidence-Based Solutions to End the Overdose Crisis" (September 27-28 in Columbus, OH): This conference aims to explore the impact of criminal justice laws and policies in compounding drug use harms, including overdose deaths, and offer an alternative framework for addressing problematic drug use and drug-related fatalities that is rooted in evidence, compassion, and the principles of harm reduction. More details about and registration for this event are available here and here.
Fortunately nothing else significant is happening in the legal world today (joking, of course).
I presume I will get (too many) news alerts on my phone about anything consequential that happens during the latest round of Kavanaugh hearings or during the planned meeting between Prez Trump and Deputy AG Rod Rosenstein. But, at the risk of creating an extra place for people to say silly things on the internet, I figured it might make sense to create an open thread here for any thoughtful comments on any of the day's sure-to-be-historic events.
I have not blogged much about the SCOTUS confirmation mess because the story is a bit off-topic and covered aplenty elsewhere. But perhaps sentencing fans and readers have (respectful) "hot takes" on what we have seen so far or concerning what is in store int he coming hours and days. If so, feel free to share.
Wednesday, September 26, 2018
Interesting look at data collection and use in prosecutorial decision-making
The folks at the Urban Institute have this interesting new issue brief titled "Collecting and Using Data for Prosecutorial Decisionmaking: Findings from 2018 National Survey of State Prosecutors’ Offices." Here is how it starts and concludes:
Prosecutorial data collection, data use, and data-driven decisionmaking are subjects of emerging interest among prosecutors, other criminal justice stakeholders, advocates, and policymakers. How much data are prosecutors collecting? How are they using data (if at all), and how has that helped decisionmaking? What resources and infrastructure do prosecutors use, and what barriers prevent effective uses of data? In early 2018, the Urban Institute surveyed prosecutors’ offices across the country to seek answers to these questions. Elected prosecutors and staff members responded from 158 offices representing jurisdictions of all sizes, from sparsely populated rural parts of the country to urban areas with more than a million residents....
Across the country, prosecutors and other criminal justice system stakeholders are grappling with how to best use data to improve outcomes. The findings presented here demonstrate that many prosecutors’ offices collect and use data throughout the case decisionmaking process, from screening to sentencing. And, many respondents express interest in and a desire to learn more about data collection and how it can be used to improve prosecutorial practices. Some offices have implemented innovative, data-driven initiatives to better manage their offices and address system-wide trends such as rising crime rates. Nevertheless, significant barriers stand in the way of broader collection and use of data. A lack of resources and concerns about data accuracy inhibit offices who want to pursue data collection from doing so. Further investigation into these barriers, as well as the development of innovative solutions to address them, will help expand the practice of data-driven decisionmaking in interested offices.
The analyses presented here demonstrate a relationship between data collection and use. Offices that want to realize the benefits associated with data use must begin by collecting relevant metrics. By increasing data collection efforts, and later using that data in decisionmaking, prosecutors’ offices can better identify and respond to trends, demonstrate their successes, and link their decisions to safety and justice goals.
"Will Florida’s Ex-Felons Finally Regain the Right to Vote?"
The question in the title of this post is the headline of this New York Times magazine article, which is worth reading in full. Here is a taste:
In 2015, [Neil] Volz happened on a meeting at Florida Gulf Coast University, where a small group of students and community activists were listening to an African-American law-school graduate named Desmond Meade. He was talking about his years-long crusade to restore voting rights to people who had committed felonies, as he had. The issue affected Volz, who knew he was barred from voting, as is automatically the case in Florida for anyone with a felony conviction. Meade was president of the Florida Rights Restoration Coalition, an organization founded by the Florida A.C.L.U. for former felons, or, as he and others prefer to call themselves, “returning citizens.” Meade was in the midst of trying to collect the 766,200 signatures required to place an initiative on the ballot to amend Florida’s Constitution, which denies former felons the right to vote. Volz stayed after the meeting to talk to Meade. “We chatted for a long time, and by the end, I wanted to help,” he said.
Across the country, more than six million people have lost the right to vote because of their criminal records. More than 1.5 million of them live in Florida, a higher number than in any other state. The proposed ballot initiative would automatically restore the right to vote to people with a felony conviction who have completed their sentences. (The initiative makes two exceptions: no voting rights for people convicted of murder or sex offenses.) At the beginning of this year, with the signatures gathered, the state certified the initiative, called Amendment 4, for the November ballot.
Like any change to Florida’s Constitution, Amendment 4 needs 60 percent of the vote to pass. In the summer of 2017, after Volz spent more than a year volunteering, Meade offered him the paid position of political director. He hoped that Volz, with his experience as a Republican operative, could help frame the restoration of voting rights in terms that appealed to a wide constituency — Republicans and independents as well as people of color and white liberals. “It’s everybody that can’t vote,” Meade likes to say. “I’m fighting just as hard, if not more, for that guy that wanted to vote for Donald Trump than a guy who wishes to vote for Hillary Clinton or Barack Obama.”
September 26, 2018 in Collateral consequences, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)
Another effective preview of coming SCOTUS review of SORNA delegation in Gundy
I was so very pleased to publish this post last week the original commentary of Wayne Logan concerning Gundy v. United States, the soon-to-be-heard Supreme Court case about the administration of the federal Sex Offender Registration and Notification Act (SORNA). I now see that SCOTUSblog here has up its Gundy preview authored by Mila Sohoni and titled "Argument preview: Justices face nondelegation challenge to federal sex-offender registration law." I recommend the piece in full, and here is how it gets started and ends:
Over 12 years ago, Congress enacted the Sex Offender Registration and Notification Act. One provision of SORNA created a requirement that a convicted sex offender register with every jurisdiction in which he resides, works or studies, as well as in the jurisdiction in which he was convicted. Another part of SORNA, its criminal enforcement provision, made it a crime for a convicted sex offender subject to the registration requirement to fail to register or to keep his registration information updated if he travels across state lines. But what about sex offenders convicted before SORNA’s enactment? SORNA did not itself specify whether pre-SORNA offenders were required to register. It instead authorized the attorney general of the United States to “specify the applicability” of SORNA’s registration requirement to “sex offenders convicted before” the date of SORNA’s enactment, and “to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply” with the registration requirement.
In subsequent years, defendants charged under SORNA contended that the act and its enforcement scheme violated a panoply of constitutional rules....
How the Supreme Court chooses to decide this case could have potentially sweeping implications on several scores. The government notes that since SORNA was enacted, 4,000 sex offenders have been convicted of “federal sex-offender registry violations,” and “many of those offenders who failed to register would go free” if the court were to invalidate the delegation in SORNA. In addition, as Gundy notes, there are “hundreds of thousands” of pre-SORNA offenders now covered by the attorney general’s guidelines — as many people, he points out, as live in Wyoming — and the court’s decision will determine whether or not they will face criminal liability for failure to comply with SORNA’s registration requirements going forward.
Beyond the law of sex-offender registration, the approach the court takes in Gundy could have repercussions across the law of the administrative state. Broad delegations of authority to the executive branch form the foundation of modern regulatory government. But given Ginsburg’s dissenting vote in Reynolds, Justice Clarence Thomas’ recent opinions on nondelegation and administrative power, and Justice Neil Gorsuch’s dissent from denial of rehearing en banc in a U.S. Court of Appeals for the 10th Circuit case involving SORNA, there is a real possibility that the Gundycourt will issue a ruling that revives the nondelegation doctrine from its 80-year slumber. If the justices ultimately do find that SORNA’s delegation does something more than just “sail close to the wind,” then we can confidently expect to see a string of challenges attacking the exercise of federal administrative power in areas ranging from environmental law to immigration law to food-and-drug law to the law of tariffs and trade. Cass Sunstein famously wrote that nondelegation doctrine has had only “one good year”; when the justices issue their ruling in Gundy, we will discover whether it will finally have a second.
Prior related post:
Tuesday, September 25, 2018
"Safe Injection Sites and the Federal 'Crack House' Statute"
Alex Kreit, who I am lucky to have time to hang out with this semester as he serves as the first Visiting Professor at The Ohio State University's new Drug Enforcement and Policy Center, has this new paper now posted on SSRN that has the same title as the title of this post. Here its abstract:
Safe injection sites have become the next battlefield in the conflict between state and federal drug laws. A safe injection site is a place where injection drug users can self-administer drugs in a controlled environment under medical supervision. They have been operating in other countries, including Canada, for decades and a wealth of evidence suggests that they can help to reduce overdose deaths. To date, however, no U.S. city or state has sanctioned a safe injection site. Until recently, safe injection sites were politically untenable, seen as a form of surrender in the war on drugs. This dynamic has changed over the past few years as prominent politicians from both parties have called for an end to the drug war and the opioid epidemic has grown increasingly dire.
Efforts to start a safe injection site are currently underway in at least 13 cities and states. Four cities — New York, Philadelphia, San Francisco, and Seattle — have gone so far as to announce plans to open an injection site. There is just one small problem. They appear to violate the federal “crack house” statute, which makes it a crime to maintain a drug involved premises. The Department of Justice has not yet taken a formal position on safe injection sites. But in a New York Times editorial, Deputy Attorney General Rod Rosenstein threatened that “cities and states should expect the Department of Justice to meet the opening of any injection site with swift and aggressive action.”
Surprisingly, this looming conflict has gone almost entirely overlooked by legal academics. Meanwhile, the public debate has assumed that the status of safe injection sites under federal law is clear. In this article, I argue that assumption is wrong. Despite the crack house statute, an obscure provision of the federal Controlled Substances Act (CSA) might allow states and localities to establish government-run safe injection sites. Buried in the CSA is a statute that immunizes state and local officials who violate federal drug laws in the course of “the enforcement of any law or municipal ordinance relating to controlled substances.” This provision was almost surely intended to protect state and local police officers who possess and distribute drugs in connection with undercover operations. But, I argue, the text of the immunity provision and the little caselaw that exists interpreting it suggests it could shield government-run safe injection sites from federal interference.
Monday, September 24, 2018
The latest controversy over a lenient sentence involving sexual assault comes from Alaska
This lengthy new Washington Post article provides a detailed review of a lenient Alaska sentencing causing a stir. The article is headlined "A man accused of kidnapping and masturbating on a woman got a ‘pass.’ Now people want the judge and prosecutor out." Here are excerpts:
Hours after Elizabeth Williams learned last week that Justin Schneider wouldn’t spend a day in jail, she turned to Facebook to channel her outrage.
The Anchorage social worker didn’t know Schneider, 34, before he was arrested in August 2017 after police said he offered a woman a ride from a gas station, stopped on the side of a road and asked her to step out under the pretense of loading items into the car, then choked her until she lost consciousness and masturbated on her. Nor did Williams know the victim in the case, identified only as a 25-year-old Native woman who called police after the assault.
What she was familiar with was how the case ended: Schneider pleaded guilty to one count of second-degree felony assault in exchange for the dismissal of his other assault, kidnapping and harassment charges. He was sentenced Wednesday to two years in prison, the maximum for that charge, with one year suspended.
However, Schneider was given credit for a year under house arrest, meaning he would not serve additional time in prison. He will instead be required to continue wearing an ankle monitor and participate in a treatment program. “I was just absolutely appalled,” she told The Washington Post.
Soon afterward, Williams learned that Alaska voters were slated to decide whether the judge in the case should be retained on the Anchorage Superior Court in the November elections. And so, Thursday morning, Williams started a Facebook page: “NO retention for Judge Michael Corey,” she named it....
Many in the group also directed their anger at Anchorage Assistant District Attorney Andrew Grannik, the prosecutor in the case, who said he had made the plea deal because Schneider had no prior criminal record and seemed amenable to rehabilitation, according to the Alaska Star.
Grannik said in court that he had “reasonable expectations” that Schneider would not offend again. “But I would like the gentleman to be on notice that that is his one pass. It’s not really a pass, but given the conduct, one might consider that it is,” Grannik said then.
On social media, people seized on the “one pass” comment and demanded that Grannik be given the boot along with the judge.
Meanwhile, Alaska state officials have acknowledged the outrage but said that, while Schneider’s conduct was “very disturbing,” Corey and Grannik were constrained by sentencing laws. “Both the governor and the attorney general think what occurred in this case was unacceptable in terms of the current state of the law,” said Cori Mills, a senior assistant attorney general in the Alaska Department of Law. “The law needs to be changed.”
Under Alaska statute, the definition of sexual contact encompasses only direct physical contact with genitals, buttocks, female breasts or the anus — not semen. In other words, despite the accusation that Schneider ejaculated on the woman, he could be charged only with harassment in the first degree, which is not a sex offense, according to state Deputy Attorney General Rob Henderson.
He reiterated what the Alaska Criminal Division director stated Friday, in the face of strong backlash over the sentence: State officials had feared that the kidnapping charge, the most serious of the counts, could not have been proved beyond a reasonable doubt if the case had gone to trial because Schneider’s victim had willingly entered his vehicle.
Given that, Henderson said, the prosecution would have been left to pursue lesser charges that, even if they had resulted in convictions, would not have forced Schneider to enter sex offender treatment. “Because the state realized there was a need for sex offender treatment, the only way to obtain that requirement was to get him to agree to it" in a plea deal, Henderson said. “When you have sex offender treatment, you have to have some type of leverage or incentive to compel the person to complete the treatment.”...
In the wake of the case, Alaska Gov. Bill Walker (I) said he planned to propose legislation that would make “causing unwanted contact with semen” a sex offense. If successful, the penalty for a first-time offense would carry jail time of two to 12 years and require registering as a sex offender. However, the Alaska legislature does not convene until January, so any fix to the loophole would be months away at the earliest.
Williams, who started the Facebook page calling for the judge’s ouster, said she agreed with the proposed loophole fix and understood the sentencing constraints the judge and prosecutor were under. However, she wished that the judge had sentenced Schneider to some jail time — or that the case had been taken to trial, even if it meant risking that Schneider would be acquitted of all charges...
The Alaska Star reported that Schneider’s victim was not at the hearing and had, according to police, been traumatized “to the point where she couldn’t hardly speak” after the assault. Details about the case were graphic enough that some local news outlets placed editor’s notes at the tops of their stories warning readers.
The victim “said she could not fight him off, he was too heavy and had her down being choked to death,” Anchorage police Detective Brett Sarber wrote in a criminal complaint obtained by KTVA News last year. “[She] said she lost consciousness, thinking she was going to die.” When she regained consciousness, the man zipped up his pants, gave her a tissue and “told her that he wasn’t really going to kill her, that he needed her to believe she was going to die so that he could be sexually fulfilled,” Sarber wrote in the complaint.
Friday, September 21, 2018
Why is the Sessions' DOJ now taking death penalty off the table for Donald Fell after so much cost and agony for victims?
The question in the title of this post emerges from this notable federal capital news, headlined "Accused killer Donald Fell to take plea deal, avoid death penalty," emerging from Vermont in a long-running multiple murder case. Here are the basics:
Nearly 20 years after he allegedly kidnapped and murdered a Vermont grandmother, accused killer Donald Fell is changing his plea and will avoid the death penalty.
Terry King, 53, was arriving for work at the Rutland Price Chopper in 2000 when police say Donald Fell and Robert Lee carjacked her, drove her to New York and killed her on the side of the road.
Fell was convicted and sentenced to death in 2005. But his federal conviction was overturned due to juror misconduct and a new death penalty trial was set to begin.
But now there is a plea deal that takes the death penalty off the table. Court documents show Fell will plead guilty to four federal crimes, including carjacking and kidnapping with death resulting. In exchange, he will spend the rest of his life in prison without the possibility of parole. A judge must still accept the agreement.
Fell's alleged accomplice, Robert Lee, never stood trial. He killed himself in prison. Fell and Lee were accused of two other murders that night. Police say before kidnapping Terry King, the men murdered Fell's mother, Debra, and her friend, Charles Conway in Rutland. But those killings took a back seat to King's murder because the feds were charging the men in that case since they brought King across state lines. The feds also had the death penalty to bargain with. The state of Vermont does not have a death penalty.
As highlighted via prior posts below, Fell's legal team has been making an aggressive case against his continued capital prosecution. But I sincerely doubt federal prosecutors found any of their claims compelling or really worried that federal judges would. So I am inclined to assume that federal prosecutors just concluded, presumably with the blessing of Attorney General Jeff Sessions, that throwing more federal taxpayer dollars after the pursuit of federal death sentence was just not a good investment of limited resources (perhaps especially because the feds have not executed anyone in over 15 years).
That all said, I still find this decision especially striking because the victims here are vocally against this plea resolution. This local article, headlined "Victim's family says justice not served with Fell plea deal," explains the family's reaction while also suggesting federal prosecutors had to work had to talk them into being content with this resolution:
The family of Terry King says justice is not being served. That's their response to news a plea deal has been reached with King's accused killer, Donald Fell. The deal means Fell will avoid the death penalty. "I mean they beat her to death. Beat her to death while she prayed for her life. And yet he is allowed to live? What justice is that?" demanded Barbara Tuttle, Terry King's sister.
Tuttle is talking about Donald Fell, the man accused of the brutal murder of Terry King. The North Clarendon grandmother was kidnapped on her way to work back in 2000. "It is a total embarrassment for the U.S. government as far as I am concerned, a total embarrassment," Tuttle said. And King's sister says she speaks for the entire family....
"If you are going to have the death penalty, then enforce it. If you are not going to use it, then why is the law there? Why all these appeals over and over and over again? Eighteen years of this," Tuttle said.
Tuttle says her family has known a plea deal was in the works for several weeks. Under the deal, Fell will plead guilty to four federal crimes including carjacking and kidnapping with death resulting. Tuttle says her family was convinced by prosecutors it was the best way to go to avoid another lengthy trial and appeal process. "I would just as soon go to court all over again if I knew that he would come out with the death penalty. And it was actually be enforced and we wouldn't have to go through 18 more years of appeals," she said. "It is ridiculous."
Tuttle says at least she won't have to keep being reminded of the case once Fell is sentenced to life without parole. She hopes if any good can come of the story, maybe it can lead to changes in the system. "They are always talking about criminal justice reform. Let me tell you, this is a perfect example of why our system is broken," she said....
It is important to note that a federal judge still needs to approve this deal. The case goes back to court Sept. 28.
I doubt the family member speaking here would be content with abolition of the death penalty as a way to fix this part of a broken capital criminal justice system. But I find it so telling that the "tough-and-tougher" federal administration that Prez Trump advocates and that AG Sessions seeks to implement ultimately gave up here on what should not be a uniquely hard capital prosecution. Another notable data point to support the view that the long-running litigation war against the death penalty is ever closer to a complete victory.
Prior related posts:
- Vermont killer makes broadside constitutional attack on federal death penalty prior to capital retrial
- Federal District Judge says federal death penalty "operates in an arbitrary manner" but still rejects broadside constitutional challenge
- Notable federal capital defendant claims his killing age (20) should make him ineligible for death penalty
So much great content and commentary at "The Appeal"
I noted in this post a few months ago a "renamed, revamped, and relaunched criminal justice publication: The Appeal" with a commitment to "focus on the most significant drivers of mass incarceration, which occur at the state and local level." The Appeal is now in the a habit of producing so much good original content, I cannot keep up with it all, and so I thought it worthwhile here to highlight just some of the content over just the last few weeks that should be of interest to sentencing fans:
"The Incalculable Costs Of Mass Incarceration" by John Pfaff
Podcast on "Justice In America Episode 9: How Democrats And Republicans Created Mass Incarceration" by Josie Duffy Rice and Clint Smith
"Safe Injection Sites Are On The Way. But Will Prosecutions Follow?" by Maura Ewing
Thursday, September 20, 2018
"Will Bill Cosby’s Trip From America’s Dad to Sex Offender End in Prison?"
The title of this post is the headline of this lengthy New York Times review of the high-profile sentencing set to take place at the start of next week. The article includes some original analysis of Pennsylvania sentencing outcomes, and here are some excepts that should be of interest to sentencing fans:
When Bill Cosby arrives at the Montgomery County Courthouse next week to be sentenced for sexual assault, he will find out whether prison is the final stop on his descent from beloved entertainer to disgraced felon. But the judge making that decision, Steven T. O’Neill, will confront his own personal pressures, weighty expectations and knotty legal challenges. Chief among them: What to do with an 81-year-old sex offender who could become one of the most famous Americans ever to enter a cell?
At a time when the country is finally reckoning with a culture of predatory sexual abuse by powerful men, Judge O’Neill is likely to survey a courtroom in Norristown, Pa., that is filled with many of the dozens of women who say Mr. Cosby drugged and assaulted not just Andrea Constand, but them, too. A large number of these women expect a long prison sentence, one that will put an exclamation mark on the first major conviction of the #MeToo era.
“My wound was greatly healed by the guilty verdict in the spring,” said Lili Bernard, an actress who says that Mr. Cosby drugged and raped her in the early 1990s. “But to see him in handcuffs, that would be like, ‘Wow.’ We, the victims, deserve that.”
Prosecutors have said they will push for the maximum 30-year prison term: 10 years on each of three counts of aggravated indecent assault. But Mr. Cosby’s lawyers are sure to fight that, depicting him as a frail old man with failing vision, incapable of assaulting another woman or surviving a long sentence.
And Judge O’Neill will have to consider state guidelines that recommend, but do not mandate, appropriate sentence ranges. A New York Times analysis of Pennsylvania court data for the past five years found that offenders convicted of crimes similar to Mr. Cosby’s often did not receive the maximum penalty, but were more typically given sentences of two to five years....
Mr. Cosby’s spokesman, Andrew Wyatt, confirmed that Mr. Cosby would appeal his conviction, but declined to specify on what grounds.... Mr. Wyatt said Mr. Cosby would ask to remain free on bail, post-sentencing, while he pursues his appeal, a process that could take years. If Judge O’Neill were to allow that, he would surely face criticism from the many female accusers looking to find closure in the case.
“We will all feel very let down by that,” said Victoria Valentino, a former model for Playboy who says Mr. Cosby drugged and raped her in Los Angeles in 1969....
Testimony concerning prior alleged crimes is only allowed in Pennsylvania, as in other states, if, among other conditions, it demonstrates a signature pattern of abuse. But its inclusion is extremely rare, and Judge O’Neill never explained why he allowed the five additional women to testify in the trial this year after allowing only one additional accuser to speak at Mr. Cosby’s first trial in 2017. That ended in a mistrial after the jury failed to reach a verdict. “The No. 1 issue is definitely that big change, of letting in those additional complainants in the case,” said Shan Wu, a former sex-crimes prosecutor in Washington. “I am sure that Cosby’s team are licking their chops.”
Experts say judges are often more lenient about bail in cases where the appeal issues are viewed as strong. “When someone has a legitimate issue,” said Brian Jacobs, a former federal prosecutor in New York who has studied the topic, “and there’s an argument that certain evidence should not have been allowed that could reduce the chance of a conviction at retrial, then there is an interest in allowing that person to stay out on bail.”
Mr. Cosby, who has denied sexually abusing any of the women, is currently free on $1 million bail, though he is confined to his suburban Philadelphia home and has to wear a GPS monitoring device. After Mr. Cosby’s conviction, prosecutors had immediately asked for his bail to be revoked, but Judge O’Neill said he did not view Mr. Cosby as a flight risk, one of the criteria weighed in such a decision. Legal experts said it was generally uncommon in Pennsylvania for offenders to be allowed to remain free on bail, pending appeal, after a judge had sentenced them to incarceration.
Mr. Cosby was convicted on these three counts: penetration with lack of consent, penetration of the victim while she was unconscious, and penetration after administering an intoxicant. The New York Times reviewed state sentencing data for 121 cases over the past five years in which the most serious conviction was for at least one of those three counts. Mr. Cosby is far older than all of the others convicted. Their median age was 36, though in a few cases, the offender was in his late 60s.
A vast majority of the offenders also received fewer than 10 years, with a median sentence of two to five. But there were several cases in which judges gave maximum sentences of 20 years or more to offenders who had been convicted on multiple counts of aggravated indecent assault, or a single count in tandem with other, lesser crimes.
In some of those cases, the judge eschewed a common practice of making multiple sentences concurrent and instead ruled that they be served consecutively. In another case, the person qualified for a more severe sentence because he was viewed as a repeat offender under Pennsylvania’s sex offender laws.
Mr. Cosby had never before been convicted of a crime, and his team is expected to argue that his three counts should be merged into a single count, a decision that would mean that he would face a prison term of no more than 10 years.
Prosecutors have asked that an unspecified number of women who have accused Mr. Cosby of sexually assaulting them be allowed to testify at the sentencing hearing, a move that one of Mr. Cosby’s lawyers, Joseph P. Greene Jr., is trying to block. But Ms. Constand will certainly be allowed to speak at the hearing, as will Mr. Cosby, if he so chooses. The person being sentenced usually has the last word.
Mr. Jacobs, the former federal prosecutor, said that even if none of the other women were allowed to speak, he had to believe that the number of accusers who say Mr. Cosby preyed on them for decades would be an important factor in Judge O’Neill’s thinking. One purpose of sentencing in such a high-profile case can be to send a message that might deter others, he said. “The judge would have to be conscious of the fact that this is one of the earliest sentences in the Me Too era,” Mr. Jacobs said.
Judge O’Neill declined to comment for this article. But Dennis McAndrews, a Pennsylvania lawyer who has known the judge since they attended Villanova University School of Law together, said he did not expect Judge O’Neill to have any problem navigating the maze of factors in this sentencing. “He has been a judge for 14 years,” Mr. McAndrews said, “and in terms of experience and temperament, he has got all the tools necessary to assimilate and synthesize every piece of information that will come before him.”
Prior related posts:
- You be the state judge: what sentence for Bill Cosby for conviction on three counts of aggravated indecent assault?
- "Why Bill Cosby may not spend any time in prison"
- "Are Elderly Criminals Punished Differently Than Younger Offenders?"