Saturday, May 27, 2017

"What will happen to Pennsylvania's death penalty?"

The title of this post is the headline of this lengthy local article. Here are excerpts:

Five times a year, Pennsylvania corrections officials meet inside a white block masonry field house on the grounds of the prison near Penn State, and carry out a mock execution. They escort the “inmate” to the execution chamber. They strap that person onto the gurney. And then they simulate injecting a lethal dose of drugs into his body.

They perform this drill even though capital punishment in the commonwealth remains indefinitely on hold while government officials await a report, now years in the making, analyzing capital punishment’s history, effectiveness and cost in Pennsylvania.

The death sentence imposed last month on Eric Frein, the Poconos survivalist who killed a State Police trooper and injured another in September 2014, has reignited questions – and in some cases, criticism – about why the state has taken so long to decide whether to continue or stop, once and for all, executing criminals....

And state Sen. Scott Wagner, a York County Republican hoping to unseat the governor next year, has signaled it’s an issue he’ll press on the campaign trail. “I can assure you, when I’m governor, within the first 48 hours, I’ll be up there reversing that moratorium,” Wagner said in an interview Friday....

In Pennsylvania, ... Wolf, a Democrat, [imposed] a moratorium on the death penalty after taking office in early 2015. He argued the state should await the results of a long-awaited report by the Pennsylvania Task Force and Advisory Committee on Capital Punishment before putting any more criminals to death. The report is expected to analyze more than a dozen factors involving the death penalty, such as cost, bias and effectiveness.

Wolf’s decision has drawn backlash from organizations like the Pennsylvania District Attorneys Association, which in 2015 called it “a misuse of [the governor’s] power” that ignores the law. The study itself has also come under fire, particularly for how long it’s taking to complete: It was ordered up by the state Senate in 2011 and was supposed to be completed by 2013....

Meanwhile, tax dollars still go toward keeping prisoners on death row. Each of the state’s 165 death row inmates — from Frein, who was sentenced last month, to Henry Fahy, who has been awaiting his punishment since November 1983 — cost Pennsylvania $10,000 more a year to house than a convict sentenced to life in prison. This does not account for the additional legal fees associated with capital cases: Some estimate prosecuting and litigating a capital murder case can cost up to $3 million more than a non-capital murder case....

“We have spent billions of dollars having a death penalty – including maintaining a death facility – and we have not executed someone who did not ask to be executed” since 1962, Sen. Daylin Leach, a Montgomery County Democrat and one of four members of a Senate task force awaiting the report, said last week. Leach is an unapologetic opponent of the death penalty. He has introduced bills to abolish it since 2009, arguing that it is “immoral and barbaric,” and calling the cost of capital punishment “troubling” – including the cost of maintaining the execution complex.

May 27, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Friday, May 26, 2017

Full Senate confirms Donald Trump's first circuit pick, Judge Amul Thapar, to Sixth Circuit

As Politico reports here, the "Senate voted 52-44 on Thursday to install Thapar, a favorite of Senate Majority Leader Mitch McConnell (R-Ky.), at the Cincinnati-based 6th U.S. Circuit Court of Appeals."  Here is more about this confirmation and additional judicial confirmation battles on the horizon:

The confirmation marked the first judicial nominee aside from now-Justice Neil Gorsuch to the Supreme Court for Trump, who came into office with an usually higher number of judicial vacancies....

In addition to Thapar, Trump has nominated 10 prospective judges to the lower courts. Two in particular could trigger a partisan battle over the so-called blue slip rule — a long-standing custom of the Senate Judiciary Committee that says the panel will not advance a judicial nominee without the consent of both the candidates’ home-state senators.

The committee’s chairman, Sen. Chuck Grassley (R-Iowa), said recently that the blue slip rule would be much stricter for district court judges that cover just a single state, rather than the more powerful circuit court nominees that span a broader region.  And other Republicans agree, despite comments earlier this month that signaled the GOP would stand by that tradition.  “I like the blue slip tradition as it pertains to district court judges, but I never thought it applies to circuit court,” said Sen. Jeff Flake (R-Ariz.), a member of the Judiciary Committee.

Democrats have already started fighting back, arguing that the Judiciary Committee strictly abided by the blue slip rule under President Barack Obama and that Trump should be treated the same way.  Under Obama, 17 judicial nominees — 11 for the district court and six for the circuit courts — never advanced because a blue slip wasn’t returned. One of the unreturned blue slips was for the vacant 6th Circuit seat that will be filled by Thapar after his confirmation on Thursday....

Thapar, like Gorsuch before him, was drawn from a list of potential Supreme Court nominees released by Trump during his campaign with input from the conservative Federalist Society and Heritage Foundation.

As I noted in this post when Judge Thapar was nominated earlier this year, I have come to know Judge Thapar personally and I think very highly of him (in part because he asked me to file an amicus brief in one of his highest-profile sentencing cases).  I am already excited to see his coming opinions in criminal justices cases for the Sixth Circuit.  And Judge Thapar's nomination and reasonably smooth confirmation now perhaps serves to make him a front-runner for any coming Supreme Court opening. 

May 26, 2017 in Who Sentences? | Permalink | Comments (3)

Thursday, May 25, 2017

"Capital Punishment and the Courts"

The title of this post is the title of this commentary/book review authored by Jonathan Mitchell and available via SSRN. Here is the abstract:

In Courting Death, Professors Carol Steiker and Jordan Steiker present a thoughtful and trenchant critique of the Supreme Court’s capital-punishment jurisprudence.  They present data and anecdotes showing that capital punishment today is no less “arbitrary” than it was before the Supreme Court started regulating capital punishment in 1972 — leaving us with a regime that imposes costly, arcane, and highly technical rules on capital-punishment jurisdictions without any payoff in reducing arbitrary decisionmaking.  The Steikers also observe that many of these court-created doctrines suffer from vagueness and indeterminacy.  And they even suggest that the Supreme Court’s efforts to restrict the death penalty have had the paradoxical effect of strengthening and entrenching the institution of capital punishment.

Yet the pathologies with the Court’s capital-punishment doctrines go even beyond what the Steikers have identified.  The Court’s “proportionality” doctrine, for example, rests on a non sequitur: That capital punishment is rarely applied to juveniles or people with mental disabilities does not indicate that a national consensus exists against any use of capital punishment in those situations.  It is also wrong for the Court to infer “evolving standards of decency” from a state’s decision to establish minimum age or IQ thresholds for the death penalty.  Governments often choose to legislate by rule for reasons that have nothing to do with standards of decency.  Finally, the Court’s “proportionality” doctrine creates perverse incentives for prosecutors and elected officials, because it threatens to eliminate capital punishment across the board — or at least as applied to specified categories of offenders — unless the government produces enough executions to defeat a claim that a death sentence is no longer consistent with “evolving standards of decency.”  The Steikers are right to criticize the Court’s efforts to regulate capital punishment, but the problems go beyond what they identify in their thorough and comprehensive book.

May 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Deep dive into the deep challenges of sentencing different types of child sex offenders

The Shreveport Times has this detailed five-part series, called Sinister Web, which looks into the modern digital world of child pornography. One article in the series examines case-processing and sentencing issues and challenges in this sad space under the headlined "Different outcomes for child rapists, child pornographers."  Here are excerpts:

Prosecutors face specific challenges when handling contact child sexual abuse cases, which often result in less prison time for those who sexually assault children than for those who possessed or distributed child pornography via the internet.

The conviction rate in U.S. child pornography possession cases is 97 percent, according to the Crimes Against Children Research Center and the Bureau of Justice Statistics. The conviction rate is much lower for offenders who commit hands-on sex crimes against children: 46 percent....

Experts cite multiple reasons for the disparities in sentencing and conviction rates.  One is that young children often are difficult witnesses because they include "fantastical" elements in their testimonies or they cannot give detailed, accurate information to investigators, said Dr. Sharon Cooper. Cooper, a forensic pediatrician who has provided expert testimony in more than 300 cases involving internet and child sexual abuse crimes, also said that forensic interviews of children may not show any physical evidence of abuse, as many children wait years to disclose.

But child sexual abuse images “speak for themselves,” said Lt. Chad Gremillion, a detective with the special victims unit of the Louisiana State Police. “You can’t deny what they are, what the focal point is, the abuse of a video where a four-year-old is being forced to provide oral sex to a male in a home,” Gremillion said.

The need for child victims of sexual abuse to testify at trial also is an issue.  Defense attorneys surveyed by The Times said they often encourage clients to plead guilty to reduced charges to avoid a trial and in exchange for less prison time. Prosecutors and victims’ families often accept those pleas to prevent further trauma to the children involved, said Caddo Parish Assistant District Attorney Monique Metoyer.  Many young children simply are not emotionally equipped to testify in an open courtroom, Metoyer said.... Another difficulty in prosecuting child sexual abuse cases is that victims often know their abusers.  

Another way some say the law is outdated: Those who upload child sexual abuse images to the internet, where they can be accessed by anyone in the world, can be charged under federal law with transporting materials across state lines — even though all they did was click a button on a home computer, said Katherine Gilmer, also a Shreveport defense attorney.  

As happened with Jesse Ward, the police officer who was caught after sharing a single image depicting child sexual abuse with an online undercover agent.  Law enforcement officers also found "more than ten electronic images" of child pornography on a computer hard drive in his home in McDuffie County, Georgia, according to court documents.  Ward initially was charged with three counts: possession, receipt and transportation of child pornography. Two of Ward's charges — receipt and possession of child pornography — were dropped upon the conviction of the third, more serious charge, transporting child pornography.  The transportation charge applied because he had uploaded the image to a network from which users in other states could download it — thus crossing state lines, a distinction that gained his crime federal status.  Ward was sentenced to 20 years.

But those who possess, and do not share, child sexual abuse images also often face stiffer sentences than those who commit contact crimes against children.  Melville resident Russell Guillory was sentenced to 10 years in prison in 2016 for possessing child pornography. The Lafayette man's collection included 75 videos and six images of child sexual abuse — including images depicting penetration of a 2-year-old child.

A judge, in imposing sentence, said that the materials were “especially heinous” and that the “very young children” in the materials “were not in a position of sufficient strength to resist the sexual abuse,” according to court documents. In a letter to the Times, written in April, Guillory said his sentence did not match his crime.  “Even good people make mistakes, but mistakes should never make a person,” Guillory wrote.  “We all have moments of weakness and make mistakes.”...

Unlike many contact sex crimes, child pornography possession and distribution charges carry mandatory minimum sentences, while judges in child sexual contact crimes have more discretion at sentencing. Child pornography crimes carry a mandatory five to 20 years of prison time....

Peter Flowers, a defense attorney in Shreveport, said the law has not been updated to reflect changes brought by the internet and digital photography. He voiced frustration with how the criminal justice system handles those convicted of child pornography offenses, especially because of what he termed “outdated” enhancements. “It used to be that if you amassed 500 pictures, you really had to work hard. Now, it’s just pressing a button. It’s not the same thing,” he said.

Flowers also said undercover stings — in which agents pose online as underage children and then arrest adults who initiate sexual conversations — catch only the “low-hanging fruit.”

“There are some serious child pornographers out in the deep, dark web, and that’s where the real danger is,” he said. “The real deal is much deeper.”

Regardless of prison time, all sex crimes in Louisiana require sex offender registration, which can provide a degree of closure for child victims and their families or destroy an offender’s life forever, depending on whom you talk to. Flowers said registration is a “very serious thing” and “not just about having a sign put in your yard or having a strip across your driver’s license.”  Offenders can’t pick their own children up from school.  Those who live within 1,000 feet of a school, church or a park must sell their homes and move, Flowers said....

Law enforcement officers, for the most part, expressed little sympathy for those convicted of possessing or distributing child pornography.... Corey Bourgeois, lead investigator at the Louisiana Attorney General’s cyber crime lab in Baton Rouge, said the state sentencing guidelines fit the crimes. “You know how you got that image?  Somebody was abused to get that image,” he said.  Metoyer said those who access child sexual abuse images chose to do so. “Even though we’re looking at images of children and you may not see the children in the room with you, these are real children,” Metoyer said.  “This has impacted them for the rest of their lives.”

May 25, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14)

"The portal itself is like a video game for criminal justice nerds."

The title of this post is a sentence that got me (too) excited about this new criminal justice resource called "Measure for Justice."  The sentence is found in this Marshall Project article, fully headlined "The New Tool That Could Revolutionize How We Measure Justice: A small nonprofit gathers criminal justice statistics, one county at a time." Here are excerpts from the article describing what is revolutionary about Measures for Justice:

The enormity of the country’s criminal justice system — 15,000 state and local courts, 18,000 local law enforcement agencies, more than two million prisoners — looks even more daunting when you consider how little we know about what is actually going on in there. Want to know who we prosecute and why? Good luck. Curious about how many people are charged with misdemeanors each year? Can’t tell you. How about how many people reoffend after prison? We don’t really know that, either.

In an age when everything is measured — when data determines the television we watch, the clothes we buy and the posts we see on Facebook — the justice system is a disturbing exception. Agencies exist in silos, and their data stays with them. Instead, we make policy based on anecdote, heavily filtered through a political lens.

This week the nonprofit Measures for Justice is launching an online tool meant to shine a high beam into these dark corners. It is gathering numbers from key criminal justice players — prosecutors offices, public defenders, courts, probation departments — in each of America’s more than 3,000 counties. Staffers clean the data, assemble it in an apples-to-apples format, use it to answer a standard set of basic questions, and make the results free and easy to access and understand.

It’s the kind of task you’d expect a federal agency like the Bureau of Justice Statistics, which has an average annual budget of $97 million, to take on. Instead, the 22 people at Measures for Justice’s Rochester, N.Y., offices are doing the work themselves on an annual budget of $4.6 million, donated mostly from foundations. So far they’ve tackled six states: Washington, Utah, Wisconsin, Pennsylvania, North Carolina and Florida, gathering most of the numbers one county at a time. Together, these make up 10 percent of the nation’s counties. The team chose those six states for their geographical diversity and — to ease the data gathering in the project’s early phases — because they had unified statewide court databases. The hope is to complete 15 more states by 2020, while updating the statistics from the first six states every two years.

“We’re giving people data they’ve never had access to before,” says Amy Bach, the founder and executive director of Measures for Justice. “We’re telling them stories about their communities and their counties that they’ve never heard before.” The project, which has as its motto “you can’t change what you can’t see,” centers on 32 “core measures”: yardsticks to determine how well local criminal justice systems are working. How often do people plead guilty without a lawyer? How often do prosecutors dismiss charges? How long do people have to wait for a court hearing? Users can also slice the answers to these questions in different ways, using “companion measures” such as race and political affiliation.

The portal itself is like a video game for criminal justice nerds. Users can compare counties, click on interactive maps and bar charts, and layer one data point upon another. The interface is clean and easy to use, if a little wonky. (The organization wants to present data in context, so each infographic is followed by a screen full of fine print and footnotes.) It’s meant for everyone — not just professors and policy wonks.

May 25, 2017 in Data on sentencing, Detailed sentencing data, Who Sentences? | Permalink | Comments (0)

Wednesday, May 24, 2017

American Law Institute officially approves revised Model Penal Code: Sentencing provisions

This afternoon I received an email with this exciting news: "Members of the American Law Institute (ALI) voted at their 2017 Annual Meeting in Philadelphia on Wednesday, May 24th to approve the Proposed Final Draft of the Model Penal Code: Sentencing." Here is the context via the email of what I think is a very big deal after a very long process:

Under Reporter Kevin R. Reitz (Co-Director of the Robina Institute of Criminal Law and Criminal Justice and James Annenberg La Vea Land Grant Chair in Criminal Procedure Law at the University of Minnesota Law School), and Associate Reporter Cecelia M. Klingele (Associate Professor of Law, University of Wisconsin, Madison), the project reexamines the sentencing provisions of the 1962 Model Penal Code in light of the many changes in sentencing philosophy and practice that have taken place since its original publication.

The Model Penal Code: Sentencing project provides guidance on some of the most important issues that courts, corrections systems, and policymakers are facing today, including the general purposes of the sentencing system; rules governing sentence severity — including sentences of incarceration, community supervision, and economic penalties; the elimination of mandatory minimum penalties; mechanisms for combating racial and ethnic disparities in punishment; instruments of prison population control; victims’ rights in the sentencing process; the sentencing of juvenile offenders in adult courts; the creation of judicial powers to review many collateral consequences of conviction; and many issues having to do with judicial sentencing discretion, sentencing commissions, sentencing guidelines, and appellate sentence review.

“As a matter of recent history in this country, we’re at quite an important moment, where the conversation and political attitudes towards criminal justice policy and sentencing policy have been shifting dramatically at the state level,” said Professor Reitz.  “Despite current uncertainties in the federal government, legislators, policymakers, and lawmakers in state and local criminal justice systems are searching for workable solutions to problems of mass punitiveness that have grown since the 1970s.  This moment in history is particularly fortuitous for the Model Penal Code because we are arriving at the point of completion just as this new or changed nationwide debate is occurring. For lawmakers, judges, and corrections leaders, we can provide the tools they will need to create important and lasting sentencing reforms in their jurisdictions.”

May 24, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

"Ambition and Fruition in Federal Criminal Law: A Case Study"

The title of this post is the title of this interesting and timely new paper by Lauren Ouziel now available via SSRN. Here is the abstract:

This Article explores a recurrent puzzle in federal criminal law: why do the outcomes of a law — who ultimately gets prosecuted, and for what conduct — diverge, sometimes markedly, from lawmakers’ and enforcers’ aims?  This disconnect between law’s ambition and fruition is particularly salient in federal drug enforcement, which has focused on capturing the most high-value offenders — large scale traffickers, violent dealers, and the worst recidivists — yet has imprisoned large numbers of offenders outside these categories.  In this respect, federal drug enforcement is a case study in the ambition/fruition divide.

Among the divide’s contributing factors, I focus here on organizational dynamics in enforcement: the pressures and incentives among and within the organizations that collectively comprise the federal drug enforcement enterprise.  These pressures and incentives operate along three vectors: between the enforcers and the enforced; across and within federal enforcement institutions; and between federal and local enforcers.  Together, they create a system that stymies focus on the most culpable even as it makes apprehending them a principal aim.  This insight carries important implications for reform, both within drug enforcement and outside it.  Changing who, and how many, we prosecute requires attention not only to laws, but also the lower-visibility spaces in which enforcement patterns take root.  In the new political landscape, these lower-visibility spaces are federal criminal justice reform’s next frontier.

May 24, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, May 23, 2017

"How Far Can Jeff Sessions Take His Crime War?"

The question in the title of this post is the headline of this astute New Republic piece by David Dagan that provides lots of useful context, old and new, for the work and rhetoric coming from AG Jeff Sessions and Prez Donald Trump.  Here are some extended excerpts (with emphasis in the original):

In fact, the last two years have seen worrying increases in the nation’s violent-crime rate, and some American cities have developed a full-blown homicide crisis.  That is a serious problem anybody who cares about criminal justice should be watching closely.  But it does not justify the Sessions-Trump imagery of marauding gangsters terrorizing an entire nation.  Overall, the United States today remains a much safer country than it was 30 years ago.

So the attorney general of 2017 faces a dramatically different climate than the unknown Alabama prosecutor of 1982. Even conservatives are now leading criminal-justice-reform efforts in several red states.  But reformers must keep their guard up.  Because for Sessions, crime is an inherently polarizing issue — and that’s the best news for Republicans who want to crack down.  “We should relish the fact that there will be opposition,” Sessions wrote back in 1982. “We want opposition because it defines who we are and who they are. The bigger the confrontation, the clearer the definition.”...

Sentences will get longer as a result of the May 10 charging memorandum.  But the order may have a greater effect that isn’t so obvious: It may result in not only longer sentences, but more cases being brought, period.  In the last five years of the Obama administration, the number of defendants charged in federal cases plummeted from about 103,000 to about 77,500, the lowest number since 1998.  A number of factors drove that decline, including a hiring freeze that reduced DOJ’s bandwidth.  But John Walsh, who served as U.S. Attorney for Colorado in the Obama administration, says Holder’s policy requiring prosecutors to justify the use of mandatory minimum sentences was also a contributing factor: The rule forced prosecutors to hone in on the worst offenders.  That is now history....

Fortunately, the federal government has limited influence over the calamity of mass incarceration.  The feds do operate the nation’s largest prison system, but that still accounts for only 10.5 percent of people incarcerated in the U.S.  Otherwise, it’s up to the states (with roughly 1.2 million prisoners) and counties (roughly 600,000 jail inmates.)

The only way that Sessions and Trump can really change a political culture that has moved away from the tough-on-crime consensus of the 1980s and 1990s is to lead a public law and order crusade.  The campaign started it, but there’s a long way to go — and a lot of fear-mongering to do — to shift the tide.  Democrats now largely condemn the prison policies they once went along with.  Republicans are more circumspect, but the conservative movement for prison reform has achieved impressive incarceration reductions in some bright-red states.

Despite fears that state and local politicians would be scared off by the tough talk coming out of Washington, the momentum for reform has continued through the beginning of the Trump presidency. “So far, we haven’t seen much of an impact at all,” said Adam Gelb, who runs a unit of the Pew Charitable Trusts that advises states on criminal-justice reform.  “States have built up a strong head of steam, with broad support across the political spectrum for policies that work better and cost less.”

The kinds of states you’d imagine getting behind Sessions’s new “law and order” campaign are actually among those getting behind progressive reforms.  Louisiana is on track to pass a plan that could cut its prison population 10 percent over a decade — probably not enough to shed its status as the nation’s leading per-capita jailer, but significant progress nonetheless.  Utah approved a big juvenile-justice reform in April.  The same month, North Dakota legislators voted to favor probation over prison for low-level felonies, among other changes.  Most surprising, Alabama is poised to restore voting rights for thousands of felons.

The America of 2017 is much less hospitable to a crime war than the America of 1982.  The fact that, despite recent increases, crime remains way down makes it harder to stir up panic than it was back in the 1980s and 1990s.  The rural dimension of the opioid epidemic has contributed to a new understanding of drugs as a problem of public health. Years of activism and aggressive reporting on the ravages of mass incarceration are also beginning to register in the public conscience, especially among millennials to whom the excesses of the past look simply bizarre....

But as Sessions realized years ago, the mix of race, drugs, and crime is a powerful force in American politics.  The fact that Sessions’s sentencing memo was met with deafening silence from Republican members of Congress suggests that spines on Capitol Hill remain as gelatinous on this issue as any other involving the administration.  The onus is not entirely on conservatives, though.  Liberals should do more than simply bat down Sessions’s inaccurate portrayal of the whole country as being in the grips of a violent-crime meltdown.  They should emphasize that the recent uptick in violence is worrying, that some American cities are indeed having a crisis-level problem — and that Sessions has absolutely no idea what to do about this.

We know much more than we used to about fighting crime.  Prisons surely play a role, but we’ve long ago reached the point of diminishing returns from warehousing people.  If Donald Trump cares about Chicago as much as he tweets about it, liberals should argue, then rather than blowing the city off, he would deploy federal money to support policing and violence-prevention programs that work, there and in other high-homicide towns.

If reformers play their cards right, Sessions may ultimately find that the crime war whose terms he understood so well as a young man has been redefined in ways he can no longer grasp.

May 23, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3)

Monday, May 22, 2017

"Sentencing Synthetic Cannabinoid Offenders: 'No Cognizable Basis'"

The title of this post is the title of this short notable piece by Brad Gershel now available via SSRN. Here is the abstract:

Application of the United States Sentencing Commission Guidelines (“Guidelines”) to smokable synthetic cannabinoids (“SSC”) produces distinct but familiar inequities in the criminal justice system.  Calling to mind the crack-to-cocaine disparity that belied the rights of countless defendants, the federal government has yet to rectify a Guidelines rule that was promulgated without scientific basis or empirical support.  As prosecutions for SSC accelerate — and in the absence of swift and meaningful reform — federal courts will continue to sentence defendants via a base-offense range that was never justified.

May 22, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

California struggles over whether all sex offenders can be excluded from Prop 57 parole reforms aimed at non-violent offenders

This new Los Angeles Times article, headlined "Debate over sex offenders moves to court as California undertakes prison parole overhaul," provides an updated on the legal and policy issues surrounding sex offenders in the wake of a California ballot initiative intended to help non-violent offenders get an earlier chance for parole. Here are excerpts:

Los Angeles-based nonprofit is claiming California prison officials have undermined last fall’s ballot measure to overhaul the state’s parole process by excluding sex offenders from consideration for early release. The Alliance for Constitutional Sex Offense Laws, which advocates for the rights of those convicted of sex crimes and their families, says the exemption — written into newly released guidelines to implement Proposition 57 — “impermissibly restricts and impairs the scope” of the initiative.

Those regulations were released in March and won initial approval from state regulators a month later. But the original ballot measure did not exclude inmates convicted of sex crimes from the chance of getting an earlier hearing before the state parole board.

The group filed the lawsuit in late April against the state Department of Corrections and Rehabilitation and its director, Scott Kernan. It argues the new rules are unconstitutional and it asks a judge to order corrections officials to withdraw and repeal them, according to the complaint filed in Sacramento County.

“We want the benefits of Proposition 57 to be provided to people who have been convicted of ‘non-violent’ sex offenses,” said attorney Janice Bellucci, who is representing the alliance and an inmate who brought the case forward. “It is a basic rule of law that regulations cannot be broader than the law that they are implementing.”...

Debate over the treatment of sex offenders under Proposition 57 has simmered since last fall’s campaign season. But at that point, the outcry came from law enforcement officials and prosecutors who argued they did not want to see the ballot measure’s benefits extended to rapists and child molesters.

The sweeping initiative, approved by 65% of voters, gave new power to the State Board of Parole Hearings to grant early release to prisoners whose primary sentences are for crimes not designated as “violent” under California law. It also provided new ways for all inmates to earn time credits toward their sentences for good behavior and for enrolling in certain career, rehabilitation and education programs.

Opponents of Proposition 57 warned that the list of crimes under the violent felony penal code was short and porous, inspiring efforts in the Legislature this session to expand the definition of what constitutes a violent crime under state law. In his January budget proposal, Gov. Jerry Brown attempted to address those concerns, directing the state corrections department to exclude all sex offenders from early parole consideration. The department’s new parole guidelines are expected to receive final approval in the fall after a public comment period. Changes to how inmates can earn credits, which can help reduce their sentences, are already underway, while the new parole eligibility requirements won’t take effect until July.

But the advocacy group that filed the lawsuit wants the state agency to revise its rules. It contends that there was plenty of public debate over sex offenders during the Proposition 57 campaign — and that even then, voters passed the measure.... The lawsuit alleges the new exclusion applies to a whole class of nonviolent offenders, including people charged with crimes where there was no sexual contact with a victim.

As of Dec. 31, the number of inmates in California prisons who would have to register as sex offenders upon release stood at 22,455, less than 20% of the population housed at state prisons. Nearly 18,000 were designated as “violent” offenders, while more than 4,521 were considered “nonviolent,” according to state corrections officials.

Bellucci said those cases could include a diverse group of offenders. In theory, she said, the new regulations could unfairly penalize an 18-year-old convicted of public indecency for streaking in high school, or a 16-year-old sentenced for child pornography after distributing nude photos of herself. “Anybody who has been convicted of a violent offense, like rape, Prop. 57 doesn’t apply to them,” Bellucci said. “We are talking about nonviolent offenses, which includes these non-contact offenses.”

I would be shocked to learn that California has any teenage streakers or sexters imprisoned for lengthy periods now hoping to get early parole. I suspect the more realistic example of the sex offender who might claim to be non-violent and seek early parole are California variations on offenders like Jared Fogle or Anthony Weiner, i.e., older men involved with child pornography or perhaps other kinds of sexual activity with underage persons.  It will be interesting to see if the California courts allow of prohibit these kinds of offenders from being excluded from the reforms of Prop 57.

May 22, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Sunday, May 21, 2017

"Fighting Fines & Fees: Borrowing from Consumer Law to Combat Criminal Justice Debt Abuses"

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

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem.  On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees.  The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in jail merely because they are unable to afford bail.

Criminal justice debt, also known as legal financial obligations (LFOs), impacts not only those incarcerated but also millions of others who receive economic sanctions for low-level offenses, including misdemeanors and ordinance violations. LFOs, which include bail, fines, and fees, are imposed at every stage in the justice process, including pre-conviction, sentencing, incarceration, and post-release supervision.

For those who are unable to pay criminal justice debt, “poverty penalties” are often added in the form of charges for interest, payment plans, late payments, and collection.  As incarceration rates and local budgetary concerns have increased, so too has the imposition of LFOs. Moreover, while authorities are trying to reduce incarceration, criminal justice debt may become an even greater concern, as one popular alternative is decriminalization and the imposition of monetary charges.

Often the financial charges are unrelated to the traditional notions of punishment or protection of public safety and instead, reflect a desire to maximize revenue collection. Many municipalities outsource services to private probation companies and collectors, which are often unsupervised and use collection procedures not authorized for private parties.  Moreover, new technologies allow for additional collection abuses.

To date, states and municipalities have been ineffective in preventing abuses associated with criminal justice debt. Relying on the approach used for consumer debt collection, I propose a federal solution.  The Fair Debt Collection Practices Act (FDCPA) and the Consumer Financial Protection Bureau (CFPB) provide the foundation for a federal framework for addressing problems with the collection of consumer debts. I contend that the justifications that supported the federal statutory and administrative solution for consumer debts are at least as significant, if not greater, for a similar framework to combat abusive criminal justice debt practices.

Not only do individuals with criminal justice debt encounter the same abuses and consequences that consumer debtors face — including harassment, negative credit reports, and the adverse impact on financing and employment prospects — but they also face denial of welfare benefits, suspension of driver’s’ licenses, arrest, and incarceration.  In practice, the imposition of criminal justice debt reflects actual discrimination and creates distrust in the system. Accordingly, I advocate the adoption of a federal act and the use of the DOJ to coordinate enforcement and outreach activities to attack abuses in the collection of criminal justice debt.

May 21, 2017 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Reactions to Sessions Memo on DOJ charging/sentencing policies keep on coming

I highlighted in this post and this post some of the early reactions to the new charging and sentencing memorandum released earlier this month by Attorney General Jeff Sessions (basics here). Reactions in various forms and formats just keep on coming, so here I will highlight a few more from various authors and outlets that struck me as worth noting:

From CNN here, "State AGs to Sessions: Rescind criminal charging guidance"

From Crime & Consequences here, "Restoration of Honesty: Jeff Sessions' Charging Instructions"

From The Crime Report here, "Memo to Sessions: Why Treatment for Drug Addiction Makes More Sense Than Prison"

From The Federalist here, "Sessions Has Neither The Authority Nor The Evidence To Pursue A New Drug War"

From Law360 here, "Sessions Memo Could Create Friction In Plea Negotiations"

From the New York Daily News here, "The true toughness Jeff Sessions must show"

From the New York Law Journal here, "The Sessions Memo: Back to the Past?"

Prior recent related posts: 

UPDATE: A helpful reader pointed out this Washington Post commentary from a former US Attorney headlined "Jeff Sessions to federal prosecutors: I don’t trust you." It starts this way:

Last week Attorney General Jeff Sessions announced policy changes directing federal prosecutors to charge people suspected of crime with the “most serious, readily provable offense” available in every federal case.  In doing so, he promised that prosecutors would be “un-handcuffed and not micromanaged from Washington.”

That justification is laughable.  In actuality, the announcement demonstrates a stunning lack of faith in the decisions of line-level prosecutors.  It imposes — rather than removes — the handcuffs for prosecutors, returning us to the policy of the 1990s and 2000s, when incarceration and corrections spending spiked without a measurable impact on drug use or public safety.

May 21, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, May 19, 2017

US Commission on Civil Rights conducting big hearing on collateral consequences

As detailed in this official meeting notice, the United States Commission on Civil Rights is having a big public "briefing" focused on "Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities." The event in DC begins at 9:30 am and will be live-streamed at this link. Here is the scheduled run-down of the panels and speakers:

Panel One: Overview of Collateral Consequences of Incarceration:

National experts provide an overview of the long-lasting effects of incarceration after a prison sentence has ended. Panelists will discuss how these continuing barriers impact recidivism and particular communities. Speakers’ Remarks:

  • Margaret Love, Executive Director, Collateral Consequences Resource Center
  • Vikrant Reddy, Senior Research Fellow, Charles Koch Institute
  • Traci Burch, Associate Professor of Political Science, Northwestern University
  • John Malcolm, Vice President of the Institute for Constitutional Government, Heritage Foundation
  • Naomi Goldberg, Policy and Research Director, Movement Advancement Project

Panel Two: Access to Civil Participation after Incarceration:

National experts and professors discuss the barriers to civil participation following incarceration, specifically focusing on the right to vote and jury participation. Speakers’ Remarks:

  • Marc Mauer, Executive Director, The Sentencing Project
  • Hans von Spakovsky, Senior Legal Fellow, Meese Center for Legal and Judicial Studies, Heritage Foundation
  • James Binnall, Assistant Professor of Law, Criminology, and Criminal Justice, California State University at Long Beach
  • Anna Roberts, Assistant Professor, Seattle University School of Law and Faculty Fellow, Fred T. Korematsu Center for Law and Equality

Panel Three: Access to Self-Sufficiency and Meeting Basic Needs:

National experts discuss the barriers to self-sufficiency and meeting basic needs after incarceration. Panelists will focus on employment, housing and access to public benefits. Speakers’ Remarks:

  • Maurice Emsellem, Program Director, National Employment Law Project
  • Kate Walz, Director of Housing Justice, Sargent Shriver National Center on Poverty Law
  • Amy Hirsch, Managing Attorney, North Philadelphia Law Center; Welfare, Aging and Disabilities Units, Community Legal Services
  • Marc Levin, Director, Center for Effective Justice; Texas Public Policy Foundation; Right on Crime

May 19, 2017 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Thursday, May 18, 2017

Highlighting sentencing reform's momentum in the states despite prosecutorial change of course by US Attorney General

The New York Times has this extended new article detailing recent state sentencing reform realities that stand in contrast to the decision last week by Attorney General Sessions to promulgate tougher charging and sentencing guidelines.  The article is headlined "States Trim Penalties and Prison Rolls, Even as Sessions Gets Tough," and here are excerpts:

Louisiana has the nation’s highest incarceration rate.  But this week, Gov. John Bel Edwards struck a deal to reduce sentences and the prison population, saving millions annually. If lawmakers approve the changes, Louisiana will be following more than 30 states, including Georgia, Texas and South Carolina, that have already limited sentences, expanded alternatives to incarceration such as drug treatment, or otherwise reduced the reach and cost of the criminal justice system.  Many of those states say they have saved money while crime rates have stayed low.

In Washington, though, the nation’s top law enforcement officer, Attorney General Jeff Sessions, has charted the opposite course.  He announced last week that federal prosecutors should aim to put more people in prison for longer periods, adopting the sort of mass-incarceration strategy that helped flood prisons during the war on drugs in the 1980s and 1990s.  His move — which he said would promote consistency and respect for the law — alarmed critics who feared that the Trump administration was embracing failed, even racist, policies.

Even more, Mr. Sessions’s approach conflicted with one of the few major points of bipartisan national agreement over the past decade, that criminal justice could be more effective by becoming less punitive to low-level offenders, treating root causes of crime like drug addiction, and reserving more resources to go after serious, violent criminals.

But if Mr. Sessions’s appointment has dampened the hopes of those wishing for congressional action to reduce incarceration, advocates say it has had little effect on state efforts. “There was a lot of speculation that with the rhetoric from the presidential campaign, there would be a drop in momentum, but we haven’t seen that,” said Marc A. Levin, the policy director for Right on Crime, a group at the fore of conservative efforts to reduce incarceration rates.  “There have been so many successes in the last several years, particularly in conservative states, that it continues to fuel other states to act,” Mr. Levin said.

The consensus began with a cold, objective judgment that taxpayers were not getting a good return on investment for money spent on prisons.  Bloated corrections budgets took money that could be spent on schools, roads or tax breaks, while many of those who went through the prison system went on to offend again.  Among Republicans and Democrats alike, concern also grew that too many nonviolent criminals who were no threat to society were being imprisoned and given little chance to reform and re-enter mainstream society....

It has not hurt that early adopters included tough-on-crime red states like Texas, which began passing major criminal justice revisions in 2003.  “It was a Nixon-goes-to-China thing, and was really helpful in letting other states know, ‘The water is warm; you can do this,’” Mr. Ring said.  In contrast, he added, Mr. Sessions’s directive flies in the face of state-level successes. “We’re going to double down on an approach everybody else has walked away from,” is how Mr. Ring characterized it.

So far this year, Michigan and Georgia, which previously rewrote their criminal justice laws, have already approved a new round of changes.  In Oklahoma, where Mr. Trump handily carried every county in November, another vote was also popular: Residents approved by a 16 percentage point margin a ballot proposal calling on legislators to curb prison rolls and downgrade numerous drug and property crimes to misdemeanors from felonies.

“Basically, in Oklahoma we’re just warehousing people in prison, and we’re not trying to rehabilitate anybody because of budget constraints,” said Bobby Cleveland, a Republican state representative who is chairman of the Public Safety Committee. Oklahoma has the nation’s No. 2 incarceration rate. The state is now considering how to heed the voters’ advice, including debating major criminal justice changes. The effort faces opposition from district attorneys who have slowed some pieces of legislation, but the proposals have the firm backing of Gov. Mary Fallin, a Republican. Supporters acknowledge that it may take a few tries to succeed. “Texas didn’t do it in one year, either,” Representative Cleveland said.

Louisiana is also moving toward change. On Tuesday, Governor Edwards, a Democrat who has made reducing the prison population a centerpiece of his administration, announced that he had reached an agreement with the state’s politically powerful district attorneys to revise criminal justice laws. The deal, which still faces a vote in the Legislature, would reduce penalties for minor drug possession, give judges more power to sentence people to probation instead of prison, limit how many theft crimes qualify as felonies, and reduce mandatory minimum sentences for a number of crimes.

Last year, it also seemed there was a fair chance that even Congress would get in on the action with a bipartisan bill to reduce mandatory minimum sentences for some drug crimes. The bill never got a vote on the floor, and some feared that the appointment of Mr. Sessions, who opposed the legislation as a senator, was a sign that President Trump would never support it. But in March, Mr. Trump’s son-in-law and senior adviser, Jared Kushner, met with pro-reform senators, including Charles E. Grassley, Republican of Iowa and chairman of the Judiciary Committee, signaling he considered the issue a priority....

While Mr. Sessions has warned of what he says is a coming surge in crime, advocates for reducing incarceration say they are frustrated by how their goals are often cast as adverse to public safety. “The states that have most significantly reduced their prison population have also seen the biggest drops in their crime and recidivism rates,” said Holly Harris, a former general counsel of the Kentucky Republican Party who is now executive director of the U.S. Justice Action Network. “Reform makes us safer,” Ms. Harris said. “There’s a misperception with prosecutors that somehow reform is anti-law enforcement, and that couldn’t be further from the truth.”

May 18, 2017 in Drug Offense Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Highlighting how the Sessions Memo may have particular impact for drug trafficking cases in certain districts

News2-2-Graph-SentencingWith thanks to commenter Daniel for the tip, I just saw this notable local article from New Mexico providing a notable local perspective on the potential impact of the new Sessions federal charging/sentencing memo.  The article is headlined "Two Steps Back: How Jeff Sessions’ memo on federal prosecutions could take New Mexico back to a harsher era," and here are excerpts:

A directive from newly appointed US Attorney General Jeff Sessions instructing prosecutors to seek the most severe charges available threatens to stunt recent progress toward less federal prison time for low-level drug offenders in New Mexico, defense lawyers and drug policy reform advocates tell SFR.

“Drug mule” cases make up many of the drug crimes prosecuted in federal court in New Mexico, federal public defender John Butcher says. Some low-level drug runners who get caught mid-shipment are apprehended in Albuquerque, the first overnight stop on Amtrak’s Southwest Chief train from Los Angeles to Chicago. Others are picked up throughout the federally designated “High Intensity Drug Trafficking Area,” which runs east from Farmington down to Santa Fe and into Albuquerque before blanketing most of the southern border from Roswell on. The vast majority of federal drug charges in the state are for trafficking. Possession and brokering drug deals comprise a smaller percentage of crimes.

Drug mule cases, most often involving nonviolent and low-level drug offenders, were among those singled out in a memo issued by former attorney general Eric Holder in August 2013. It encouraged prosecutors not to charge such people with crimes that could trigger stiffer mandatory minimum sentences, which prevent judges from sentencing defendants to prison for fewer than a predetermined number of years. For example, since 1986, federal law has mandated that a person convicted of holding five kilograms of cocaine with intent to distribute be sentenced to a minimum of 10 years in prison for a first offense.

Holder asked prosecutors to back off. If somebody was arrested with five kilograms of cocaine, but was not an organizer, did not have deep ties to criminal groups and wasn’t carrying a gun or another indicator of violent intent, prosecutors were asked not to charge that person with the quantity that would have triggered the 10 years. Data from the US Sentencing Commission suggests that some federal prosecutors in New Mexico may have heeded Holder’s directive. It shows that the percentage of sentenced federal drug offenders who received mandatory minimums immediately dropped from 42 percent in 2013 to 25 percent in 2014, and even fell to 20 percent in 2015, the most recent year for which information is available. That’s about half the figure from 2006, the first year the commission began tracking this data. The decrease came even as the number of people prosecuted for trafficking rose from an average of 586 between 2010 and 2012—before the Holder directive—and 646 between 2014 and 2016.

But Sessions has now directed prosecutors to reverse course. The new attorney general wants federal prosecutors to seek the most serious and readily provable charge against all defendants—regardless of circumstance. “This is going to go after the low-level minimum participants with minor records, because they’re the ones who were getting breaks [under Holder],” Butcher tells SFR. “Breaks” didn’t mean that low-level runners weren’t being charged or sentenced to prison after 2013, he says. But in some cases, they weren’t getting the book thrown at them. Butcher suggests the new policy will have an outsized effect in New Mexico, with its relatively higher number of trafficking cases involving nonviolent offenders....

Since 2013, Santa Fe’s Law Enforcement Assisted Diversion (LEAD) program, wherein police work with case managers and the local district attorney to enroll low-level offenders in treatment programs, has served as a national example for non-punitive approaches to drug use.  District Attorney Marco Serna doesn’t think there’s much overlap between those who would qualify for LEAD and those who could be charged with a federal drug crime, but he acknowledges that the city’s approach stands in contrast to Sessions’ hardline.  “For nonviolent crimes, we have our own state and local statutes, and luckily I get to influence how we handle it in the first district,” Serna says. “And we won’t be taking that approach.”

Prior recent related posts: 

UPDATE: I just saw this notable new New York Times article which drills even deeper into the impact of the Holder Memo by identifying a number of low-level federal drug offenders who seemingly benefited from more lenient charging practices.  The piece is headlined "5 Years, or 20? How Sessions’ Get-Tough Order Would Extend Prison Stays." and it is interesting to see the cases profiled in the article and even more interesting to consider whether the offenders in the article might have been able, even if charged with more serious offenses, been able to avoid the application of a mandatory minimum sentence through the statutory safety valve or through providing cooperation.

May 18, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Ninth Circuit dodges federal marijuana offender's claim his imprisonment contravenes appropriations rider

As everyone involved in or following marijuana reform knows, Congress in recent years has included in its omnibus appropriations bills a rider that prevents the US Department of Justice (DOJ) from using any funds to prevent states "from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana."  Yesterday, a Ninth Circuit panel considered in Davies v. Benov, No. 15-17256 (9th Cir. May 17, 2017) (available here), a notable contention concerning this rider from a federal prisoner.  Here are the basics from the opinion:

Davies owned and operated medical marijuana dispensaries in Stockton and Sacramento, California, which he contends complied with state and local medical marijuana laws. Davies, however, was charged with violating federal drug laws ... [and] entered into a plea agreement, agreeing to a five-year prison term and pleading guilty to the ten counts filed against him....

Davies filed a habeas corpus petition under 28 U.S.C. § 2241 in the Eastern District of California, contending that the BOP’s use of federal funds to incarcerate individuals, such as himself, who engaged in conduct permitted by state medical marijuana laws violates the appropriations rider.

I recall talking to some lawyers back when Congress first enacted the medical marijuana appropriations rider that, if the text were interpreted very broadly, it could arguably preclude the federal Bureau of Prisons (which is part of DOJ) from spending any of its budget on those incarcerated for state-compliant medical marijuana activities. So I am not shocked that this argument made it to the Ninth Circuit. But, as this concluding passage from Davies highlights, this argument still has not yet been addressed on the merits:

The collateral-attack waiver provision in Davies’s plea agreement bars him from this particular challenge to the BOP’s use of federal funds to incarcerate him for conduct he contends complied with California’s medical marijuana laws. Because of this waiver, we need not reach and save for another day the issue of whether the expenditure of federal funds to incarcerate individuals who fully complied with state medical marijuana laws violates the appropriations rider. Cf. McIntosh, 833 F.3d at 1177–78 (holding that the appropriations rider prohibits the Department of Justice from using appropriated funds to prosecute individuals for engaging in conduct permitted by state medical marijuana laws). “We will enforce a valid waiver even if the claims that could have been made [through a collateral attack] absent that waiver appear meritorious, because the whole point of a waiver is the relinquishment of claims regardless of their merit.” United States v. Medina-Carrasco, 815 F.3d 457, 462–63 (9th Cir. 2015) (internal quotation marks, alterations, and emphasis omitted).

I would be shocked to see the Ninth Circuit or any other court ultimately interpret the DOJ appropriations rider to require the release of any federal prisoners, but the argument has enough technical textual legitimacy to surely justify its pursuit by persons federally imprisoned for state-legal medical marijuana activity. And, for various updates on state activities, I continue to try to keep up with major legal developments and other notable stories at Marijuana Law, Policy and Reform as evidenced by some of these recent posts:

May 18, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, May 17, 2017

Terrific effort to sort out "How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?"

In this post earlier this week, I talked through the challenge of figuring out the import and impact of the new Sessions Memo on federal charging/sentencing by stressing  uncertainty concerning the impact of various charging memos released by former Attorney General Eric Holder.   Jacob Sullum is carrying forward this effort quite effectively this morning in this terrific new Reason posting asking "How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?".   Here are highlights:

For critics of the war on drugs and supporters of sentencing reform, the policy shift that Attorney General Jeff Sessions announced last Friday is definitely a change for the worse. But it's not clear exactly how bad the consequences will be, partly because the impact of the policy he reversed, which was aimed at shielding low-level, nonviolent drug offenders from mandatory minimum sentences, is hard to pin down.

Sessions rescinded a 2013 memo in which Attorney General Eric Holder encouraged federal prosecutors to refrain from specifying the amount of drugs in cases involving nonviolent defendants without leadership roles, significant criminal histories, or significant ties to large-scale drug trafficking organizations. Since mandatory minimums are tied to drug weight, omitting that detail avoids triggering them.

Numbers that the Justice Department cited last year suggest Holder's directive, which was the heart of his Smart on Crime Initiative, had a substantial effect on the percentage of federal drug offenders facing mandatory minimums. According to data from the U.S. Sentencing Commission (USSC), the share of federal drug offenders subject to mandatory minimums has fallen steadily since Holder's memo, from 62 percent in fiscal year 2013 to less than 45 percent in fiscal year 2016. If the percentage had remained the same, more than 10,000 additional drug offenders would have fallen into that category during this period.

"The promise of Smart on Crime is showing impressive results," Deputy Attorney General Sally Q. Yates said last year, citing the USSC numbers through fiscal year 2015. "Federal prosecutors are consistently using their discretion to focus our federal resources on the most serious cases and to ensure that we reserve harsh mandatory minimum sentence for the most dangerous offenders."

Counterintuitively, however, the defendants whom the USSC describes as "drug offenders receiving mandatory minimums" include drug offenders who did not actually receive mandatory minimums. Many of them were convicted under provisions that call for mandatory minimums yet escaped those penalties because they offered "substantial assistance" or qualified for the statutory "safety valve."

Paul Hofer, a policy analyst at Federal Public and Community Defenders, took those other forms of relief into account in a 2013 estimate of the Holder memo's possible impact.... Hofer's analysis suggests that the vast majority of drug offenders who seem to have benefited from the 2013 memo—thousands each year—did not actually receive shorter sentences as a result of the policy change.

Then again, the benefits of Holder's memo may extend beyond the federal defendants who avoided mandatory minimums. By encouraging prosecutors to focus their efforts on the most serious drug offenders, Holder may have indirectly reduced punishment by allowing some people to avoid federal charges altogether. That instruction may help explain why the total number of federal drug cases fell from 25,000 in fiscal year 2013 to 21,387 in fiscal year 2016, a 14 percent drop.

As Molly Gill, director of federal legislative affairs at Families Against Mandatory Minimums, points out, there is some evidence that federal prosecutors did try to focus on the most serious cases: During the same period, the share of defendants benefiting from the safety valve (which excludes high-level and violent offenders) fell from 24 percent to 13 percent. "With the directive not to slam low-level drug defendants," says University of California at Irvine criminologist Mona Lynch, "there was likely some shift toward bringing more serious cases and simply passing on smaller, street-dealing type of cases."

Sessions is now telling federal prosecutors to pursue the most serious provable charges against drug offenders (and other federal defendants) unless they believe an exception to that policy is warranted, in which case they have to seek permission from their supervisors and justify the decision in writing. Although Sessions argues that the new default rule will produce more uniform results, Lynch thinks it could have the opposite effect.

"The big question is whether he has the power to roll back time and change the prevailing legal culture that has tempered the 'drug war' mentality of the 1990s in many federal jurisdictions," says Lynch, who studied the behavior of federal prosecutors for her 2016 book Hard Bargains: The Coercive Power of Drug Laws in Federal Court. "Even under a more stringent set of charging policies…U.S. attorneys have considerable discretion as to what cases to bring….This policy may only increase the divide between jurisdictions that collectively eschew aggressive federal drug prosecutions and those that dive back into the harsh practices of an older era. This would result in even more geographic disparity in federal justice outcomes, a longstanding concern of Congress and of the U.S. Sentencing Commission."

Prior recent related posts: 

May 17, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Progressive defense attorney wins key primary and now seems poised to become Philadelphia District Attorney

As reported in this local article, a notable and unlikely figure won a Democratic primary and seems poised now to become the most remarkable of modern big city prosecutors.  Here are the basics:

Larry Krasner was the unlikeliest of candidates for district attorney in Philadelphia. That turned out to be just the ticket for victory in the unlikeliest of Democratic primary elections Tuesday.

Progressive voters demanded reform for an office currently held by a man under federal indictment. And the local race was nationalized by a growing sense of resistance among many Democrats in the city to President Trump’s every move.

Krasner, 56, easily defeated six other contenders Tuesday, in a campaign that went from low-key to high-profile last month with a $1.45 million investment from billionaire George Soros in a pro-Krasner independent political action committee. With nearly 98 percent of the vote tallied Tuesday night, Krasner held nearly an 18-point lead on his closest Democratic rival. Krasner will face in the Nov. 7 general election Beth Grossman, the lone Republican in her party’s primary Tuesday.

Krasner, a defense attorney for three decades best known for taking on civil rights cases for Black Lives Matter and Occupy Philadelphia members, AIDS activists and protesters arrested at political conventions, has never served a day in his career as a prosecutor. That became his pitch -- that he was more likely to reform the District Attorney’s Office because he had no ties to the institution, unlike most of the other Democrats in the race.

That message appealed to several hundred people who filled the John C. Anderson Apartments community room and an outdoor courtyard in Center City on Tuesday night for Krasner’s victory party. It got a little rowdy as the results rolled in. Chants of "No good cops in a racist system" and against the Fraternal Order of Police were quickly shut down by Krasner campaign staffers.

Krasner, who lives in West Mount Airy, told the crowd they shared a vision of “a criminal justice system that makes things better, that is just, that is based on preventing crime and is based on building up society rather than tearing it apart." And he reached out to the office he hopes to lead. "To the good people of the District Attorney's Office, I want you to know, you could have made more doing something else, but you became district attorneys because you wanted justice,” he said. “You know what I want? I want what you want. I want justice."

Krasner had a remarkable impact on the primary, pulling the field to the left, leading that movement with a pledge to stop seeking death-penalty sentences if elected. He joked Tuesday night that his position on capital punishment had been described as “political suicide.” As he ended his speech, the crowd launched into a booming chant of "This is what democracy looks like."

Krasner’s primary victory is certain to set off rumblings of uncertainty in the District Attorney’s Office. He has described it as “a place with a mad zeal for the highest charge, for the highest level of conviction, a culture that can find no flaw in police misconduct, that is drunk on the death penalty.” Krasner has also sued law enforcement agencies or the government more than 75 times.

His rise prompted a group of two dozen former District Attorney’s Office employees to endorse former city and federal prosecutor Joe Khan on Friday. Khan finished second in the race, followed by former city Managing Director Rich Negrin, former First Assistant District Attorney Tariq El-Shabazz, former city and state prosecutor Michael Untermeyer, former assistant district attorney Jack O’Neill, and former Municipal Court Judge Teresa Carr Deni.

Krasner, the son of a crime-fiction author and an evangelical Christian minister, grew up in St. Louis and graduated from Stanford Law School, starting his career as a federal public defender before launching his own firm in 1993. He is married to Common Pleas Court Judge Lisa M. Rau.

Krasner’s victory was fueled by biographical television commercials paid for with Soros’ cash. That helped him far outpace Untermeyer, who invested $1.3 million of his own money in the race, and Khan, who outperformed all the other candidates in fund-raising from individual donors.

May 17, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

Tuesday, May 16, 2017

Is it unconstitutional for a state to allow judges to increase sentences because a felony was committed by someone illegally present in the US who had been previously deported?

The question in the title of this post could be an issue before state (and federal?) judges in Tennessee shortly, because a new state sentencing provision to this effect is on the desk of the Governor of the Volunteer State.   This local article, headlined "Bill gives TN judges more power in sentencing, experts say law is unconstitutional," explains:

State lawmakers are keeping an eye on the clock as time ticks down for Gov. Bill Haslam to act on a bill granting state judges new sentencing authority. The bill allows judges to add more time to a felony sentence if a defendant is in the country illegally. Right now the state of Arizona is involved in a legal battle over a similar issue.

Tennessee lawmakers say this bill would be a hard deterrent against crime. Immigration advocates say it's a burden on local governments that will drive a wedge between the community and the legal system. Haslam has three options when it comes to the sentencing enhancement bill before his desk. He can sign it, veto the bill or allow it to pass into law without his signature.

Lincoln Memorial University Duncan School of Law professor Stewart Harris believes whether it's signed or not, this bill might not be around for long. "My initial reaction is that it's probably unconstitutional,” said Harris.

According to Harris, the U.S. Constitution governs America's immigration laws, not states. That's one reason states don't typically pass immigration laws. "Should California have one set of rules and Massachusetts another? What about all the landlocked states, should they have their own rules as well? That’s why Congress has authority over immigration,” explained Harris.

State Sen. Becky Duncan Massey of Knoxville believes this bill isn't an immigration issue. "The courts are going to decide if something is constitutional or not if it's challenged. I don't believe this really has to do with immigration, it has to do with crime,” said Massey.

Massey says residence is already a factor when considering a person's bond. She believes judges should have all the information about a defendant available to them before sentencing. "They’re already going to jail, they have committed a crime, they've been convicted of a crime and this is just a factor along with another factor determining how long the sentence is,” she said....

This bill passed the House and Senate on May 9. The governor has 10 working days to take action or allow it to pass without his signature.

Though I am not an expert on immigration law or preemption, I am inclined to believe this kind of law is constitutional. I can see a range of reasonable constitutional and policy arguments against this proposed amendment of Tennessee's sentencing laws, but the fact that the provision appear to apply to those in the country illegally AFTER a previous deportation would seem to foster an argument that the law is more like punishing someone based on a certain type of prior criminal history rather than just based on alienage.  But nobody should hold me to that too-quick and relatively uniformed assessment, and everybody should use the comments to help be get better informed on the question in the title of this post.

May 16, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Three new CCRC posts highlighting how collateral consequences have become a focal point for modern criminal justice reform

Regular readers should recall me highlighting all the great work being done regularly over at the Collateral Consequences Resource Center, and three recent postings at CCRC struck me as worth a special mention because they each in distinct ways showcase the heightened attention and concern for collateral consequences in modern criminal justice reform conversations.  (At the risk of being cheeky, one might say collateral consequences are no longer being treated as collateral by serious advocates for criminal justice reform.  

Here are these three posts that caught my eye as highlighting distinct and distinctly important institutional players paying close attention to collateral consequences:

May 16, 2017 in Collateral consequences, Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (1)

Brennan Center releases "A Federal Agenda to Reduce Mass Incarceration"

Justice agendaYesterday the Brennan Center released this notable new report which feels like it was first conceived back when everyone thought Hillary Clinton was poised to be President. Nevertheless, the report, headlined "A Federal Agenda to Reduce Mass Incarceration" speaks to current political realities in its executive summary with this paragraph:

Even with broad public support, addressing the problems in our criminal justice system will not be easy. For the last eight years, the White House and Justice Department supported this important work. But Attorney General Jeff Sessions appears opposed to efforts to reduce unnecessarily harsh charging and sentencing. While President Donald Trump’s own views remain unclear, key advisers such as Vice President Mike Pence, senior adviser Jared Kushner, and Gov. Chris Christie all support efforts to reduce imprisonment.

Here are some other parts of the report's executive summary:

This report sets forth an affirmative agenda to end mass incarceration and reform our criminal justice system. Bipartisan momentum has been growing for years. We must keep it going. The United States has less than five percent of the world’s population, but nearly one quarter of its prisoners. Mass incarceration contributes significantly to the American poverty rate. Conservatives, progressives, and law enforcement leaders now agree that the country must reduce its prison population, and that it can do so without jeopardizing public safety. In the last decade, 27 states have led the way, cutting crime and imprisonment together.

Of course, because 87 percent of prisoners are housed in state facilities, changes to state and local law are necessary. But history proves that decisions made in Washington affect the whole criminal justice system, for better or worse. Federal funding drives state policy, and helped create our current crisis of mass incarceration. And the federal government sets the national tone, which is critical to increasing public support and national momentum for change. Without a strong national movement, the bold reforms needed at the state and local level cannot emerge.

In a divisive political environment, it is tempting to assume that progress toward federal reform is impossible. But even today, the need to confront problems in the way we arrest, prosecute, and incarcerate remains a rare point of trans-partisan agreement. Republican and Democratic Congressional leaders alike acknowledge that unnecessarily long federal prison sentences continue to impede rehabilitation, driving recidivism and economic inequality. And according to a new poll from the Charles Koch Institute, 81 percent of Trump voters believe criminal justice reform is a “very important” or “somewhat important” issue. More than half know someone who is in or has been to prison....

To help bridge that divide, this report offers solutions that would keep crime rates low and show support for law enforcement, while reducing mass incarceration. The strongest of these policies require congressional action. Others could be implemented by a sympathetic administration. Taken together, these policies form the core of a national agenda for federal leaders to make our country safer and fairer. They also serve as models for state and local action.

Legislation

End the Federal Subsidization of Mass Incarceration: Federal grants help shape criminal justice policy at the state and local levels. For decades, these grants have subsidized the growth of incarceration. For example, the 1994 Crime Bill offered states $9 billion in funding to build more prisons. Today, $8.4 billion in federal criminal justice grants flow from Washington annually, largely on autopilot, encouraging more arrests, prosecution, and incarceration. To bring accountability to this flow, Congress can pass a “Reverse Mass Incarceration Act” that would dedicate $20 billion over 10 years to states that reduce both crime and incarceration. This would spur state and local action across the country.

End Federal Incarceration for Lower-Level Crimes: Our criminal justice system relies heavily on prison, using it as the default punishment for most crimes. But research has shown that unnecessary incarceration is costly and ineffective at preventing recidivism and promoting rehabilitation.  Early estimates show that approximately 49 percent of the federal prison population is likely incarcerated without an adequate public safety reason. Congress can pass legislation to eliminate prison terms for lower-level offenses and shorten prison terms for other crimes.  In doing so, it can safely, significantly cut the prison population, saving around $28 billion over 10 years, enough to fund a Reverse Mass Incarceration Act.

Institute a Police Corps Program to Modernize Law Enforcement: The country faces a national crisis in policing.  Some believe that overly-zealous enforcement has reached a breaking point.  Others believe police are not adequately funded or supported. All can agree that something needs to change.  To advance a twenty-first century police force, Congress can allocate $40 billion over five years to recruit new officers and train them in modern policing tactics focused on crime prevention, as well as techniques to reduce unnecessary arrests, uses of force, and incarceration.

Enact Sentencing Reform: While lawmakers should aspire to the bold changes to federal sentencing described above, Congress can start with a milder first step: reintroducing and passing the Sentencing Reform and Corrections Act of 2015.  This proposal would cautiously reduce prison sentences for some nonviolent crimes.  A bipartisan group of senators, led by Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.), have already committed to reintroducing the bill this session. The White House has expressed cautious support.

Executive Action

Redirect Federal Grants Away from Mass Incarceration: Since many of the harmful incentives in federal criminal justice grants are written into law, truly ending the federal subsidization of mass incarceration will take congressional action, as laid out above. But the Justice Department can take the first step, by changing performance measures for grants to reward states that use federal funds to reduce both crime and incarceration. Institute New Goals for Federal Prosecutors: The Justice Department should ensure that scarce federal criminal justice resources are focused on the most serious crimes, and evaluate U.S. Attorneys nationally based on their ability to decrease both crime and incarceration.

Commute Sentences to Retroactively Apply the Fair Sentencing Act: In 2010, Republicans and Democrats joined together to pass legislation to reduce the disparity between crack and powder cocaine crimes as the drugs are scientifically equivalent. But more than 4,000 federal prisoners remain incarcerated under outdated drug laws. Future presidents can bring justice to these prisoners by identifying clemency petitions meeting certain criteria, fast-tracking them for review, and granting clemency.

May 16, 2017 in Criminal justice in the Trump Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Monday, May 15, 2017

Reviewing some historical data on the federal prison population, total sentences imposed, and drug cases

Some of the copious commentary critical of the new Sessions Memo complains that he is "bringing back" the War on Drugs.  See, for example, Salon here, "Jeff Sessions is bringing back the drug war — and making it worse"; New York here, "Sessions Takes First Big Step Toward Bringing Back the War on Drugs."  I find this charge a bit curious because I do not think the drug war or its footprint on human lives ever really went away notwithstanding some recent efforts at the federal and state level to temper a bit its reach and impact. 

In an effort to try to see if the federal drug war at some point went away, and also driven by a desire to try to gauge the impact of federal charging policies before the Sessions Memo (as discussed here), I decided it might be useful to take a dive into US Sentencing Commission data over the past two decades to see what we could see.  The USSC has great yearly data assembled here going back to 1996, and basic federal prison population numbers are accessible here going back all the way to 1980.  Though my weak empirical skills and this imperfect blogging space will surely limit my ability to tell detailed data stories here effectively, I hope a few posts reviewing federal case processing and sentencing basics might be of some use and interest.  Here I will start with just the most basic of basics, historical data on the federal prison population, total sentences imposed, and drug cases:

Year        Federal Prison Population         Federal Sentences Imposed         Drug Sentences Imposed

1996                105,443                                        42,436                                    17,267

1998                122,316                                        50,754                                    20,368

2000                145,125                                        59,846                                    23,542

2002                163,436                                        64,366                                    25,920        

2004                179,895                                        70,068                                    24,532

2006                192,584                                        72,585                                    26,122

2008                201,668                                        76,478                                    25,500

2010                210,227                                        83,946                                    24,713

2012                218,687                                        84,173                                    25,712

2014                214,149                                        75,836                                    22,193

2016                192,170                                        67,742                                    19,945

May 15, 2017 in Data on sentencing, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Senator Rand Paul criticizes new Sessions Memo while promising to reintroduce Justice Safety Valve Act

In this new CNN commentary, headlined "Rand Paul: Sessions' sentencing plan would ruin lives," Senator Rand Paul provides a lengthy criticism of the new charging and sentencing memorandum released late last week by Attorney General Jeff Sessions (basics here).  Here are a few excerpts:

The attorney general on Friday made an unfortunate announcement that will impact the lives of millions of Americans: he issued new instructions for prosecutors to charge suspects with the most serious provable offenses, "those that carry the most substantial guidelines sentence, including mandatory minimum sentences."

Mandatory minimum sentences have unfairly and disproportionately incarcerated a generation of minorities. Eric Holder, the attorney general under President Obama, issued guidelines to U.S. Attorneys that they should refrain from seeking long sentences for nonviolent drug offenders.

I agreed with him then and still do. In fact, I'm the author of a bipartisan bill with Senator Leahy to change the law on this matter. Until we pass that bill, though, the discretion on enforcement -- and the lives of many young drug offenders -- lies with the current attorney general.

The attorney general's new guidelines, a reversal of a policy that was working, will accentuate the injustice in our criminal justice system. We should be treating our nation's drug epidemic for what it is -- a public health crisis, not an excuse to send people to prison and turn a mistake into a tragedy.

And make no mistake, the lives of many drug offenders are ruined the day they receive that long sentence the attorney general wants them to have....

I want to go the opposite way from the attorney general. That's why I've partnered with Senator Leahy and once again will be reintroducing the Justice Safety Valve Act. This isn't about legalizing drugs. It is about making the punishment more fitting and not ruining more lives.

The legislation is short and simple. It amends current law to grant judges authority to impose a sentence below a statutory mandatory minimum. In other words, we are not repealing mandatory minimums on the books -- we are merely allowing a judge to issue a sentence below a mandatory minimum if certain requirements are met.

We need this legislation because while there is an existing safety valve in current law, it is very limited. It has a strict five-part test, and only about 23% of all drug offenders qualified for the safety valve.... Each case should be judged on its own merits. Mandatory minimums prevent this from happening.

Mandatory minimum sentencing has done little to address the very real problem of drug abuse while also doing great damage by destroying so many lives, and most Americans now realize it.... Pew Research found that 67% of Americans want drug offenders to get treatment, not prison, and over 60% want an end to mandatory minimum sentences.

I urge the attorney general to reconsider his recent action. But even more importantly, I urge my colleagues to consider bipartisan legislation to fix this problem in the law where it should be handled. Congress can end this injustice, and I look forward to leading this fight for justice.

I am quite pleased to see Senator Paul astutely use the new Sessions Memo to justify reintroduction and a renewed campaign for his elegant Justice Safety Valve Act (JSVA).  For a host of reasons, most notably simplicity, the JSVA has long been my favorite piece of proposed legislation to deal with the problems created by mandatory minimum sentencing statutes.   Along with Harlan Protess back in 2013, as detailed here, I even took to the pages of the Wall Street Journal to urge then President Obama to throw his support behind the JSVA. 

Given that Prez Obama never expressed support for the JSVA and that this bill never even got a vote in the Senate Judiciary Committee when under control by Democrats, I am not optimistic that the Sessions Memo will be enough to seriously enhance the JSVA's passage prospects.  But I am encouraged to see Senator Paul continuing to be an active and vocal and effective pace-setter for reform of federal mandatory minimum sentencing provisions and practices.

May 15, 2017 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

One last chance to RSVP for "Behind the Bench: The Past, Present, and Future of Federal Sentencing"

FSRAs mentioned in this prior post, I will be attending this exciting afternoon event, titled "Behind the Bench: The Past, Present, and Future of Federal Sentencing," which is taking place this Wednesday (5/17) in Washington DC.  I considered the event quite timely when I posted about it last week, but the discussions generated by Attorney General Jeff Sessions new charging memo for federal prosecutors only serves to add an extra-timely dimension to the topics to be discussed.

As mentioned before, this event emerges from a thoughtful and provocative federal sentencing reform proposal put forward by current Acting US Sentencing Commission Chair Judge William Pryor (in part because that he graciously allowed this proposal to published in the Federal Sentencing Reporter).  Through my work with FSR, I played a small  role in getting this event off the ground, and here is the event's description from this webpage where one can register to attend:

Thirty years ago, the U.S. Sentencing Commission established the first-ever set of federal sentencing guidelines. Those initial Guidelines received a chilly reception as more than 200 federal judges found them unconstitutional.  Although the Supreme Court’s United States v. Booker decision in 2005 upheld the basic structure of the Guidelines, it recast them as “effectively advisory” to allow judges to continue applying the Guidelines consistent with new Sixth Amendment jurisprudence.

The Booker ruling stated Congress was free to devise a different system moving forward.  More than a dozen years and nearly a million federal sentences later, Congress has yet to act despite diverse criticisms of the Supreme Court’s advisory sentencing scheme.  This spotlights an enduring question: What is the proper relationship between the legislative and judicial branches in determining sentencing policy?

On May 17, please join the Charles Koch Institute, the Federal Sentencing Reporter, and the Law & Economics Center at George Mason University Antonin Scalia Law School as we explore this question and discuss how we can learn from the past to improve present and future federal sentencing policy.

KEYNOTE SPEAKER: Judge William H. Pryor

MODERATED DISCUSSION: Judge Ricardo H. Hinojosa and Judge Patti B. Saris

MODERATOR: Vikrant P. Reddy

Date: May 17

Time: 12:00 pm - 2:45 pm

I have been told that there is still a little bit of the limited space available, so folks interested in attending what ought to be a very interesting afternoon of federal sentencing discussion should still be sure to register via this webpage ASAP.

May 15, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

The challenge of taking stock of impact of Holder Memos to gauge possible impact of new Sessions Memo

As reported and reviewed a bit here, Attorney General Jeff Sessions issued on Friday this important new charging and sentencing memorandum to direct the work of federal prosecutors.  As I stated in my first post about what will be known as the Sessions Memo, I think this is a very big deal in terms of both the substantive instructions and enforcement tone being set for federal prosecutors by the new Attorney General.

But just how big a deal is the Sessions Momo?  This is a critical question that really cannot be answered for years, and all the nuanced particulars involved here cannot be unpacked in a single blog post.  But I still thought it might be useful this morning to explain what I see as the challenge of figuring out how big a deal the Sessions Memo really is.  And part of that story relates, as the title of this post suggests, to the uncertainty that must still attend any assessment of the impact and import of different charging memos released by former Attorney General Eric Holder.

To begin, I think nearly everyone who follows modern crime and punishment generally accepts what John Pfaff has been stressing for a decade concerning the impact and import of prosecutors on the severity of our criminal justice system and the size of our prison populations.  At the risk of oversimplification, Pfaff has effectively highlighted that how prosecutors do their work matters so much practically to who goes into prison and for how long.  Consequently, new DOJ instructions about how federal prosecutors must do their work would seem to be a very big deal.  (Of course, Pfaff also stresses that the federal criminal justice system prosecutes and imprisons less than 10% of all those subject to prosecution throughout the US, so there is necessarily some ceiling on how much new guidance toward federal prosecutors will impact the nation as a whole.)

Because prosecutors matter a lot, federal prosecutorial policies matter a lot.  But just how much?  Notably, former Attorney General Eric Holder issued at least three significant guidance memos to federal prosecutions: a first one in May 2010 allowing more charging/sentencing discretion, a second one in Aug 2013 urging less use of certain mandatory minimums, and a third one in Sept 2014 cautioning again using certain charges to induce a plea in drug cases.  Arguably, the May 2010 general charging/sentencing memo was the most consequential and far-reaching of AG Holder's instructions to federal prosecutors.  But if you look at the basic data assembled in this NBC News discussion of the Sessions Memo, federal prosecutorial charging practices did not appear to change all that much until after AG Holder in Aug 2013 really delivered aggressively and consistently the message that DOJ was now taking a much different approach to drug cases and others.

In some subsequent posts, I hope to unpack more fully the data on federal prosecutorial practices in the Obama years under AG Holder's guidance.  For now, my goal was to highlight that we did not see a massive sea change in federal prosecutions or sentences as soon as AG Holder first announced new guidance in May 2010.  (I also must note for those eager to praise Prez Obama and AG Holder for their reform efforts, note how Holder was not so quick off the dole.  AG Sessions set forth his policy by May of his first year in office; AG Holder took until May of his second year in charge.)  Importantly, it seems it was really only when AG Holder fully doubled down, in speeches and policy directives and other actions, on charting a much different prosecutorial path starting in August 2013 that the numbers in the federal system saw some real significant movement.  I hope to discuss that movement and its meaning in coming posts as well.

So, after a lot of words, my message here is stay tuned:  stay tuned to this blog for some coming number crunching about the Holder legacy and Sessions course change, and also stay tuned to see how AG Sessions and others inside DOJ and other parts of the Trump Administration follow up on this initial memo.  What follows may prove to be much more important than what we have seen so far.

Prior recent related posts: 

May 15, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, May 14, 2017

"Dismissals as Justice"

The title of this post is the title of this notable new paper authored by Anna Roberts available via SSRN. Here is the abstract:

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice.  Whether phrased as dismissals “in furtherance of justice” or dismissals of “de minimis” prosecutions, these exercises of judicial power teach two important lessons.

First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubberstamp prosecutorial decision-making.  In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its size, harshness, and bias.

Second, these cases converge on shared principles of justice.  These principles conjure a vision of a very different criminal justice system: one in which an alleged criminal act is viewed not in isolation, but within a broader context that includes the apparent motivations for it, and the state’s role in and response to it.  There is no logical reason to confine these principles to this procedural context, and the Article urges their broader consideration.

May 14, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Some more notable reactions to the Sessions Memo

I highlighted in this prior post some first-cut reactions to the new charging and sentencing memorandum released yesterday by Attorney General Jeff Sessions (basics here). Now I will highlight a few more I have seen:

From NBC News here, "Attorney General Sessions Charts Course Back to Long Drug Sentences"

From BuzzFeed News here, "Former Federal Judges Say Sessions’ New Policy Will Take Power Away From The Courts"

Also from BuzzFeed News here, "Republicans And Democrats Are Blasting The "Dumb On Crime" Sessions Order For Tougher Sentencing"

From the Wall Street Journal here, "As Jeff Sessions Pushes for Tougher Drug Sentences, Previous Policy Gets Mixed Grades"

From the Washington Examiner here, "Former US attorneys hate Jeff Sessions' memo on tougher sentences"

Prior recent related posts: 

May 14, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Saturday, May 13, 2017

"Courting Abolition"

The title of this post is the title of this new book review authored by Deborah Denno and now available via SSRN. Here is the abstract:

Forty-five years ago capital punishment was nearly eliminated in Furman v. Georgia, where the Supreme Court held that the imposition of the death penalty in the cases before it violated the Eighth and Fourteenth Amendments.  The Furman Court’s abrogation was short-lived, however.  The 1976 decision of Gregg v. Georgia ended the 1967–1976 moratorium that had existed on executions by ruling that the death penalty was not a per se violation of the Eighth Amendment and by upholding newly passed, guided-discretion statutes.  As Professors Carol Steiker and Jordan Steiker contend in their book, Courting Death: The Supreme Court and Capital Punishment, the Supreme Court’s subsequent efforts to entrench capital punishment have involved the Court’s “top-down” regulation of states’ application of the death penalty by enforcing federal constitutional law, thereby attempting to establish a middle ground between completely abolishing capital punishment and allowing it to run amok.  According to the Steikers, this “experiment” with the death penalty has failed due to the Court’s cumbersome and complex regulatory mechanisms.

Courting Death, which builds on the authors’ prior work from their 1995 article, Sober Second Thoughts, as well as their report to the American Law Institute, is a markedly compelling book that captures the complicated story of the death penalty and explores the factors that would both shape and stymie capital punishment’s future.  The book includes a detailed history of the death penalty in the United States, its deep connection with southern racial oppression and the factors that prompted national judicial regulation, as well as the shortcomings and issues created by that regulation.

This Review of Courting Death offers a different take on two of the Steikers’ major themes: (1) the tension between effecting meaningful reform and legitimatizing legal façades, and (2) the future of the American death penalty.  The Review argues several points, one being that the Model Penal Code may have had a larger pre-Furman impact than the Steikers acknowledge.  In addition, the Review expands on some key contributors to the death penalty’s decline that may have been obscured by the all-encompassing nature of the Steikers’ regulation argument — for example, the emergence of unforeseeable exogenous variables (similar to the introduction of DNA evidence into criminal trials in the 1980s), as well as pressure points that exist largely outside of the constitutional regulatory framework, such as lethal injection litigation.  Despite these influences, the Review finds the Steikers’ prediction — that, when abolition seems right, it will come by way of a “Furman II” Supreme Court decision — to readily comport with the death penalty’s trajectory over the last fifty years.

May 13, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Friday, May 12, 2017

Some notable first-cut reactions to the Sessions Memo

The Hill already has two articles reporting on some notable reactions to the new Sessions Memo.  The reactions are not surprising, but they are still interesting:

Obama AG slams Sessions for shift to harsher sentencing

GOP senator: Sessions's push for tougher sentences highlights 'injustice'

Eric Holder is the AG referenced in the headline of the first article, and Senator Rand Paul is the one referenced in the headline of the second one. Senators Mike Lee and Tom Cotton also are quoted in the second article, and long time readers of this blog can likely guess the nature of their takes on the Sessions Memo.

Last but certainly not least, Bill Otis has reactions here at Crime & Consequences under the heading "Jeff Sessions Returns DOJ to Sound Charging Policy." Here are choice excerpts (emphasis in original):

This has been reported as "new" guidance, but it's not. It's the return of the "most serious readily provable" standard that governed charging policy during most of my 18-year tenure in the US Attorney's Office, a tenure that ended last century. The policy continued during the George W. Bush Administration.

It was right then and it's right now. It amounts to telling prosecutors to charge what the defendant actually did. This is so obviously correct -- aligning the allegations with the facts -- that I have a hard time seeing any serious objection to it.

It does allow exceptions -- that is, in practice, more lenient charging -- in unusual cases. That too seems obviously correct, together with the Attorney General's caveat that such cases must, indeed, be out of the heartland, and the reasons for leniency should be documented and approved by a more senior AUSA or the USA himself. This prevents inattentive, inexperienced or irresolute AUSA's from doing their own thing (or being bullrushed by an aggressive or smooth-talking defense lawyer).

On its face, this policy is not that much of a change from the one Eric Holder adopted, but there is an important change in emphasis and purpose....

It will be attacked by the Left as likely to produce longer sentences. That's probably so. However, there is a ready mechanism by which such sentences can be avoided: Mr. Nicey might consider quitting the smack business and getting a normal job like everybody else. I'm just not a partisan of the notion that it's always the public that has to change. Instead, in both practical and moral senses, we'll be better off when we insist that it's the criminal who has to change. We don't need less serious charging. We need less crime.

Criminals make choices. We should give them enhanced incentives to make better ones, for them and for us. The Attorney General's directive does just that.

Prior recent related post: 

May 12, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (28)

Misreporting of the Sessions Memo and the challenge of nuance in prosecutorial charging policies

I have already had the pleasure of speaking with a couple of thoughtful members of the media about the new charging and sentencing memorandum released today by Attorney General Jeff Sessions (basics here), and those conversations have already reinforced my sense of how challenging it is to fully and fairly assess the import and impact of the "Sessions Memo" in our modern sound-bite world. But while I can understand and sympathize with media members struggling to fully understand and contextualize the Sessions Memo, I felt compelled to blog my frustration with media efforts like this one from the New York Daily News that in their headline and lead get the basic story fundamentally wrong:  

Attorney General demands prosecutors seek max sentences for drug offenders

Attorney General Jeff Sessions is taking the war on drugs nuclear, ordering federal prosecutors across the country to pursue the longest prison sentences possible for drug offenders and others in a reversal of Obama-era policies.

This is just flat out wrong, as the very text of paragraph four of the short Sessions Memo makes plain (with my emphasis added): "prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553."

I think it fair (though still an incomplete short-hand) to talk about the Sessions Memo demanding prosecutors to seek tougher or harsher or longer sentences, but it is dangerously wrong to assert that the Sessions memo requires pursuit of "max sentences" or "the longest prison sentences possible."  Indeed, it seems that AG Sessions very much believes that his Memo actually provides even "more play in the joints" than pre-Holder era prosecutorial guidelines.  This is evidence by the text of this speech he gave today in New York talking about his new memo, which includes these excerpts:

Charging and sentencing recommendations are bedrock responsibilities for any federal prosecutor.  And I trust our prosecutors in the field to make good judgements.  They deserve to be unhandcuffed and not micro-managed from Washington.   Rather, they must be permitted to apply the law to the facts of each investigation.  Let's be clear, we are enforcing the laws Congress passed – that is both our fundamental mission and constitutional duty.

Going forward, I have empowered our prosecutors to charge and pursue the most serious, readily provable offense.  It means we are going to meet our responsibility to enforce the law with judgment and fairness.  It is simply the right and moral thing to do.  But it is important to note that unlike previous charging memoranda, I have given our prosecutors discretion to avoid sentences that would result in an injustice.

Prior recent related post: 

May 12, 2017 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

AG Sessions issues new tougher charging and sentencing guidelines to federal prosecutors

As reported in this official Justice Department press release, "Attorney General Jeff Sessions today issued the attached memorandum [available here] establishing charging and sentencing policies for the Department of Justice." The press release further reports:

This policy was formulated after extensive consultation with Assistant U.S. Attorneys at both the trial and appellate level, as well as U.S. Attorneys and Main Justice Attorneys. It ensures that the Department enforces the law fairly and consistently, advances public safety and promotes respect for our legal system.

Attorney General Sessions will issue further remarks on the new policy later this morning.

This memorandum is relative short and to the point, and here is some of its key language:

Charging and sentencing recommendations are crucial responsibilities for any federal prosecutor.  The directives I am setting forth below are simple but important.  They place great confidence in our prosecutors and supervisors to apply them in a thoughtful and disciplined manner, with the goal of achieving just and consistent results in federal cases.

First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency.  This policy fully utilizes the tools Congress has given us.  By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

There will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted.  In that case, prosecutors should carefully consider whether an exception may be justified.  Consistent with longstanding Department of Justice policy, any decision to vary from the policy must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.

Second, prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553.  In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.

This AP article about this new AG Sessions' memo provides this brief and effective account of what these directions change:

The directive rescinds guidance by Sessions’ Democratic predecessor, Eric Holder, who told prosecutors they could in some cases leave drug quantities out of charging documents so as not to trigger long sentences. Holder’s 2013 initiative, known as “Smart on Crime,” was aimed at encouraging shorter sentences for nonviolent drug offenders and preserving Justice Department resources for more serious and violent criminals.

Though Holder did say that prosecutors ordinarily should charge the most serious offense, he instructed them to do an “individualized assessment” of the defendant’s conduct. And he outlined exceptions for not pursuing mandatory minimum sentences, including if a defendant’s crime does not involve violence or if the person doesn’t have a leadership role in a criminal organization.

This development is a very big deal, although it is not especially surprising and the thousands of federal prosecutors who implement this policy around the nation will ultimately determine how dramatically federal charging and sentencing practices change in the months and years ahead.  (And one interesting point for the historical record: the AG Sessions charging and sentencing memo is dated May 10, but it would seem the brouhaha over the Comey firing delayed its official public release.)

Prior recent related post: 

May 12, 2017 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Thursday, May 11, 2017

Interesting report on plea realities impacting severity of sentences for sex trafficking offenses in Massachusetts

I just saw this recent Boston Herald article, headlined "Special Report: Sex traffickers evading tough prison sentences," which highlights the ways and reasons why a new Massachusetts law designed to toughen sentencing outcomes for certain sex offenders may not get consistently applied due to plea practices and related case-processing dynamics.  Here are excerpts:

Accused pimps and sex traffickers who could face decades behind bars under state law are often being allowed to plead down to less time and reduced charges, with more than half of convictions netting minimum sentences or less, according to a Herald review.

The softer sentencing patterns identified by a Herald survey of cases prosecuted by the attorney general and the state’s 11 district attorneys come five years after lawmakers passed a much-ballyhooed sex-trafficking law billed as a get-tough measure on criminals driving the sex trade.  But prosecutors and victim advocates say the sentences highlight the long-standing challenge in bringing complex cases reliant on vulnerable and sometimes reluctant victims.

The law called for sentences of five to 20 years for those convicted of trafficking, and up to life for those who prostitute minors.  But a Herald review of 32 trafficking cases statewide found 21 defendants in a position to serve the minimum five-year sentence or less, with three getting outright probation.  At least 18 times defendants took pleas to reduced charges — avoiding a human-trafficking conviction entirely. The average sentence of all reviewed cases fell between four and five-and-a-half years.  That’s a rate state Sen. Mark Montigny, the bill’s chief sponsor, slammed as “abysmal” — and exactly what he was trying to avoid when he drafted the law.

“Never once in my career have I put a mandatory minimum in a bill, but in trafficking of children, I put one in because I didn’t want to see plea-bargaining down,” said Montigny, who decried what he called a “societal ignorance” around the seriousness of the sex trade. “It’s unbelievable. … Not much has changed. And I’m so disappointed in that.”...

Prosecutors have been able to secure some long sentences under the new law.  Tyshaun McGhee and Sidney McGee, the first defendants convicted under the statute, got sentences of 10-to-15 and 10-to-12 years, respectively, after a Suffolk County jury found them guilty.  Ryan Duntin, who plead guilty in 2015, got a 10-year sentence.

But prosecutors defended their handling of the pleaded, low-sentence cases, noting they face a web of challenges. Frightened witnesses are often battling intense trauma or substance abuse, and sometimes are reluctant to go to trial, which makes scoring a jury conviction difficult.  Other times authorities have initially brought trafficking charges against girlfriends of the pimps, known as “bottoms,” who help recruit and intimidate victims.  But they sometimes are also seen as exploited victims themselves, leading prosecutors to later bring reduced charges.

Other circumstances have played a role. In Suffolk County, one accused trafficker pleaded to receive a four- to five-year sentence after one of his alleged victims died of an overdose before trial, dealing a blow to the case. In Bristol County, prosecutors said they were forced to dismiss one case because the victim wouldn’t cooperate.

Prosecutors are also wary of forcing victims, especially minors, to take the stand and risk re-traumatizing them, said Jake Wark, a spokesman for Suffolk District Attorney Daniel F. Conley. “When you’ve got victims terrified about what might come up when they take the stand ... and they’re on board with a guilty plea and we can get a 10-year or an eight-year sentence, that’s a successful prosecution,” Wark said....

Stephanie Clark, executive director of Amirah, an advocacy group that works with and houses trafficking victims, said she wasn’t surprised traffickers are getting softer sentences, given that cases hinge on victims who may back out.

May 11, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Notable comments from AG Sessions about the opioid crisis and combatting drug problems

This press release from the Department of Justice provides the text of remarks delivered today by Attorney General Jeff Sessions at the "DEA360 Heroin and Opioid Response Summit" in Charleston, WV. I recommend the speech in full, even though some comments are familiar, and here are a few excerpts that caught my attention:

People in Washington, D.C., use the word "crisis" to describe all kinds of problems.  But this epidemic of opioid and prescription drug abuse is a true crisis.  It is ravaging our communities, bringing crime and violence to our streets, and destroying the lives of too many Americans....

Let’s start by looking at the scope of the problem.  In 2015, more than 52,000 Americans died from a drug overdose.  That means our country is losing the equivalent of a major league baseball stadium full of people every year to overdoses.  That is simply unacceptable. 

Nearly two-thirds of those deaths were from opioids — that includes heroin as well as prescription drugs such as oxycodone, hydrocodone, codeine and morphine.   Every day, 91 Americans die from an opioid overdose.  And each year, more Americans are dying from drug overdoses than from car crashes.  

What’s terrifying is that these numbers may well understate the current problem, due to the recent rise of the synthetic opioid fentanyl, which is vastly more potent than heroin.  Drug traffickers are now mixing fentanyl with other drugs, resulting in a truly deadly concoction. In just one year, largely as a result of fentanyl, overdose deaths involving synthetic opioids rose an astonishing 73 percent.  Let me repeat that, 73 percent more overdose deaths.

But this plague not only brings death, but a whole parade of horribles. The number of American babies born with a drug withdrawal symptom has quadrupled over the past 15 years.  Here in West Virginia, the situation is so bad that in some hospitals, one out of every 10 babies is born dependent on opioids....

This wave of opioid and heroin abuse also represents a crisis for law enforcement.   We know drugs and crime go hand-in-hand.   Drug trafficking is an inherently violent business.  If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court.  You collect it by the barrel of a gun.

The opioid and heroin epidemic is a contributor to the recent surge of violent crime in America.   Transnational drug cartels are working with street gangs to traffic heroin that is both cheaper and stronger than ever.  As the market for this heroin expands, these gangs fight for territory and new customers — and innocent people get caught in the crossfire.     

Drug abusers miss work, and when they do work, they don’t work well.  According to one estimate, American employers are losing $10 billion dollars a year from absenteeism and lost productivity due to opioid abuse.

Any way you look at it, this drug abuse epidemic is a multi-faced and massive crisis.  It demands an all-hands-on-deck response — from government, law enforcement, health care providers, teachers, community leaders and parents.  All of us must do our part to fight the scourge of drugs.   

As I mentioned before, we have three essential tools in this fight:  enforcement, treatment and prevention.  At the Department of Justice, our principal concern is law enforcement.  Strong enforcement is crucial to effective drug abuse prevention and treatment.

Many people say, "We can’t arrest our way out of this problem."  But no one denies we need good prevention and treatment programs.  What we must recognize is that strong law enforcement efforts are also essential.   Criminal enforcement is crucial to stopping the violent transnational cartels that smuggle drugs across our borders, and the thugs and gangs who bring this poison into our communities....

The DEA has developed what they call their 360 Strategy, and deployed it to six pilot cities, including here in Charleston.  One part of the 360 Strategy is coordinated law enforcement actions against drug cartels and traffickers.   DEA’s field divisions work closely with task force partners in federal, state, and local law enforcement to identify, target and prosecute the biggest drug traffickers.  

We are also targeting links between the cartels and drug trafficking networks across our country, including violent street gangs. Another part of DEA’s 360 Strategy is diversion control.  A lot of drug abuse happens because legitimate controlled substances are diverted from their lawful purposes.... 

We are also targeting and prosecuting dishonest medical providers who violate their oaths by running "pill mills" or otherwise diverting prescription drugs from legitimate uses.  The DEA’s Tactical Diversion Squads, including one here in Charleston, do outstanding work on this front....

The goal of all our enforcement efforts is to take back our neighborhoods from drug traffickers and criminals, and give these communities breathing room.   That allows us to deploy the other tools we have to fight drug abuse:  treatment and prevention....

The best thing we can do is to keep people from ever abusing drugs in the first place.  Our nation must once again send a clear message:  illegal drug use is dangerous and deadly.  We know for a fact it destroys lives — just look around you.

Education does work.  We won’t end this epidemic in a week, or a month, or a year.  This will be a huge undertaking, both here in West Virginia and across our great country.  We must use all the tools we have: criminal enforcement, treatment and prevention programs.  

May 11, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Eleventh Circuit rejects effort to attack Alabama's lethal injection by suggesting hanging or firing squad as alternative execution methods

As reported in this local article, "condemned inmate Anthony Boyd asked the state of Alabama to carry out his execution by either hanging him or putting him in front of a firing squad. But the federal appeals court in Atlanta on Tuesday rejected Boyd’s request and cleared the way for his execution by lethal injection."  The Eleventh Circuit's lengthy ruling in Boyd v. Warden, No. 15-14971 (11th Cir. May 9, 2017) (available here), gets started this way:

It is by now clear in capital cases that a plaintiff seeking to challenge a state’s method of execution under the Eighth Amendment of the United States Constitution must plausibly plead, and ultimately prove, that there is an alternative method of execution that is feasible, readily implemented, and in fact significantly reduces the substantial risk of pain posed by the state’s planned method of execution.  Appellant Anthony Boyd, an Alabama death row inmate, appeals the district court’s dismissal of his federal civil rights lawsuit challenging the constitutionality of Alabama’s lethal injection protocol.  Boyd filed this lawsuit pursuant to Section 1983, alleging, among other things, that Alabama’s new lethal injection protocol, which substituted midazolam hydrochloride for pentobarbital as the first of three drugs, violates his Eighth Amendment right to be free from cruel and unusual punishment.  Notably, however, he did not allege that execution by a lethal injection protocol generally is unconstitutional.  Currently, Alabama law provides inmates sentenced to death with a choice between two methods of execution: lethal injection or electrocution. Instead of identifying an alternative method of lethal injection that would be feasible, readily implemented, and substantially less risky than the midazolam protocol or opting for death by electrocution, however, Boyd alleged that Alabama should execute him by hanging or firing squad.

The district court determined that Boyd had failed to state a claim under the Eighth Amendment because Boyd’s proposed alternative methods of execution -- firing squad and hanging -- are not authorized methods of execution under Alabama law and, therefore, are neither feasible nor readily implementable by that state.  It further held that Boyd’s remaining claims challenging Alabama’s execution protocol, the execution facilities, and the state’s decision to keep certain information about the protocol secret were time-barred by the statute of limitations.  Finally, the district court ruled that amending these claims would be futile and dismissed Boyd’s complaint.

We agree with the district court that Boyd has not come close to pleading sufficient facts to render it plausible that hanging and firing squad are feasible, readily implemented methods of execution for Alabama that would significantly reduce a substantial risk of severe pain.  The Alabama legislature is free to choose any method of execution that it deems appropriate, subject only to the constraints of the United States Constitution.  But Boyd has not alleged that either lethal injection in all forms or death by electrocution poses an unconstitutional risk of pain.  Having authorized two unchallenged methods of execution, Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad.  We also agree that Boyd’s remaining claims were filed well beyond the two-year statute of limitations governing § 1983 claims in Alabama.  Accordingly, we affirm.

May 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, May 10, 2017

"Behind the Bench: The Past, Present, and Future of Federal Sentencing"

The title of this post is the name of this exciting afternoon event taking place next week in Washington DC.  The event emerges from a thoughtful and provocative federal sentencing reform proposal put forward by current Acting US Sentencing Commission Chair Judge WIlliam Pryor (in part because that he graciously allowed this proposal to published in the Federal Sentencing Reporter).  Through my work with FSR, I played a small  role in getting this event off the ground, and here is the event's description from this webpage where one can register to attend:

Thirty years ago, the U.S. Sentencing Commission established the first-ever set of federal sentencing guidelines. Those initial Guidelines received a chilly reception as more than 200 federal judges found them unconstitutional.  Although the Supreme Court’s United States v. Booker decision in 2005 upheld the basic structure of the Guidelines, it recast them as “effectively advisory” to allow judges to continue applying the Guidelines consistent with new Sixth Amendment jurisprudence.

The Booker ruling stated Congress was free to devise a different system moving forward.  More than a dozen years and nearly a million federal sentences later, Congress has yet to act despite diverse criticisms of the Supreme Court’s advisory sentencing scheme.  This spotlights an enduring question: What is the proper relationship between the legislative and judicial branches in determining sentencing policy?

On May 17, please join the Charles Koch Institute, the Federal Sentencing Reporter, and the Law & Economics Center at George Mason University Antonin Scalia Law School as we explore this question and discuss how we can learn from the past to improve present and future federal sentencing policy.

KEYNOTE SPEAKER: Judge William H. Pryor

MODERATED DISCUSSION: Judge Ricardo H. Hinojosa and Judge Patti B. Saris

MODERATOR: Vikrant P. Reddy

Date: May 17

Time: 12:00 pm - 2:45 pm

I have been told that space is limited so folks interested in attending what ought to be a very interesting afternoon of federal sentencing discussion ought to be sure to register via this webpage ASAP.

May 10, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

US Sentencing Commission releases first issue in new series "Case Law Quarterly"

Via email, I learned that the US Sentencing Commission has released this first installment of a new publication series going by the name "Case Law Quarterly." Here is how this first publication (which runs six detailed pages) describes itself:

CASE LAW QUARTERLY provides brief summaries of select appellate court decisions issued each quarter of the year that involve the guidelines and other aspects of federal sentencing.  The list of cases and the summaries are not intended to be comprehensive. Instead, this document summarizes only a few of the relevant cases, focusing on selected sentencing topics that may be of current interest.  The Commission’s legal staff publishes this document to assist in understanding and applying the sentencing guidelines.  The information in this document does not necessarily represent the official position of the Commission, and it should not be considered definitive or comprehensive.

May 10, 2017 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Highlighting that conservative voters say they support criminal justice reform efforts

Vikrant Reddy authored this National Review commentary discussing the results of a recent interesting poll (which I highlighted here) under the headlined "The Conservative Base Wants Criminal-Justice Reform."  Here are excerpts:

Last week, the Charles Koch Institute (CKI) polled several hundred conservative voters to assess whether they recognize criminal justice as an important issue currently facing the nation. While specific reasons for their interest are debatable, 81 percent of Trump voters polled described the issue as either “very important” or “somewhat important” — a definite consensus.

Ordinarily, polls that confirm the status quo are not interesting.  This poll, however, caught the attention of those who have been asking whether conservative attitudes towards criminal-justice policy may have changed since the November 2016 election.  It’s a fair question.

The new presidential administration has given mixed messages, sometimes using strong rhetoric about increasing criminal penalties, but other times speaking with thoughtfulness about expanding treatment for opioid addiction.  Some prominent administration figures, such as Vice President Mike Pence, have a history as reformers.  Others, such as Attorney General Jeff Sessions, have a history as skeptics.  The views of the president himself are unpredictable.

Furthermore, when asked if judges should have more freedom to assign punishments other than prison (such as civil or community service), 63 percent of Trump voters “strongly agreed” or “agreed.”  When asked about the practice of civil asset forfeiture, which allows law-enforcement agencies to seize an individual’s property without requiring that the individual be charged or convicted of a crime, 59 percent of Trump voters found common ground with their liberal counterparts, responding that that they “strongly disagreed” or “disagreed” with such policing practices....

People surprised by the results of the poll ought to focus on one important figure: Fifty-four percent of Trump voters said they knew someone who is or has been incarcerated. That may surprise progressives who accuse conservatives of being out of touch and aloof from criminal-justice realities, but it shouldn’t surprise anybody who works in the criminal-justice arena and regularly talks to conservatives about their views....

Increasingly, then, the Americans who experience criminal justice as a personal issue are rural conservatives. Consider the example of Oklahoma.  On the night that Trump won the presidency, voters also approved changes to the state criminal code that reclassified certain drug felonies as misdemeanors, effectively expressing the view that too many drug offenses in Oklahoma were being treated with needlessly long bouts of incarceration. Oklahomans appear to prefer better probation and parole that monitors drug offenders and provides them with treatment.  This referendum vote took place in a state in which every single county voted for Trump.  A higher percentage of people (65.3 percent) voted for Trump in Oklahoma, than in any state, except Wyoming and West Virginia. It’s hard to be “Trumpier” than Oklahoma.

Leadership matters in public policy, and for that reason, it would be good to see clear support for criminal-justice reform from the White House.  Conservative legislators and governors, however, do not need to wait for cues from the administration.  The conservative base is already providing them. They have wanted criminal justice reform for a decade, and their minds did not change because of one election.

Recent prior related post:

May 10, 2017 in Campaign 2016 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Tuesday, May 09, 2017

Prez Trump fires FBI director Comey based on "clear recommendation" of Deputy AG Rosenstein and AG Sessions ... and ... therefore

Because I have never worked inside the Beltway or for any part of the Justice Department, I feel that I lack any kind of special expertise to have any special perspectives on the surprising decision by Prez Trump to terminate and remove from office FBI Director Jim Comey "based on the clear recommendations of both Deputy Attorney General Rod Rosenstein and Attorney General Jeff Sessions." But I do think it useful for everyone to read these materials coming from the White House in order to understand how the decision is being justified.

Bill Otis has long worked inside the Beltways and in various parts of the Justice Department, and he has praised Comey and Sessions and Rosenstein in the past, and he now has at Crime & Consequences this initial take on the Comey firing.  I would love to hear additional perspectives from folks with or without expertise on this matters.

May 9, 2017 in Who Sentences? | Permalink | Comments (21)

New buzz about AG Sessions considering new tougher charging guidance for federal prosecutors

I had the great honor and privilege tp speak earlier today to a terrific group of judges, along with a terrific lawyer from the US Sentencing Commissions, about federal sentencing trends and developments.  We started the discussion with a particular focus on drug cases, and I mentioned that I was expecting to see new, probably tougher, charging guidelines emerging from the Department of Justice under its new leadership.  This new Washington Post article, headlined "Sessions weighs return to harsher punishments for low-level drug crimes," suggests my informed speculation here may quite soon be reality. Here are excerpts from the piece:

Attorney General Jeff Sessions is reviewing policy changes set in place by the Obama administration that eliminated harsh punishments for low-level drug crimes and could direct federal prosecutors to again charge drug offenders with crimes carrying the most severe penalties, according to U.S. officials.

The change, if adopted, would overturn a memo by then-Attorney General Eric H. Holder Jr. that instructed prosecutors to avoid charging low-level defendants with drug offenses that would trigger severe mandatory minimum sentences. Only defendants who met certain criteria, such as not belonging to a large-scale drug trafficking organization, a gang or a cartel, qualified for the lesser charges under Holder’s instructions.

If new charging instructions are implemented, it would mark the first significant move by the Trump administration to bring back the drug war’s toughest practices — methods that had fallen out of favor in recent years as critics pointed to damaging effects of mass incarceration.

“As the Attorney General has consistently said, we are reviewing all Department of Justice policies to focus on keeping Americans safe and will be issuing further guidance and support to our prosecutors executing this priority — including an updated memorandum on charging for all criminal cases,” Ian Prior, a department spokesman, in a statement to The Washington Post.

Sessions has recently peppered his speeches to law enforcement groups throughout the country with tough-on-crime rhetoric and urged Justice Department lawyers to prosecute more drug and gun cases.

The attorney general is considering having his prosecutors bring the most severe charges against drug traffickers, whether they are low-level defendants or not, according to officials who spoke on the condition of anonymity to discuss internal deliberations. Sessions also may allow prosecutors to use more “enhancements” to make sentences even longer. Under what’s referred to as “Section 851” of the Controlled Substances Act, defendants charged with a federal drug, firearm or immigration crime may face enhancements if they have previously been convicted of a felony drug offense.

Holder told his prosecutors four years ago that they should stop using enhancements except in certain cases — such as when the defendant was involved in the use or threat of violence — in an effort, he said, to make punishments more fairly fit the crime.

Holder’s changes came in August 2013 during a growing push among lawmakers and civil rights groups to roll back the strict charging and sentencing policies created in the 1980s and 1990s at the height of the war on drugs. Sen. Rand Paul (R-Ky.) was one of the sponsors of bipartisan criminal-justice legislation that would have reduced some of the mandatory minimum sentences for gun and drug crimes — a bill that Sessions opposed and helped derail....

The Holder memo was also supported by many of the U.S. attorneys in the Obama administration. But some prosecutors across the country fought Holder’s broad effort to eliminate mandatory minimum prison sentences for certain drug offenders, saying it damaged their ability to build cases from the ground up against major drug organizations.

As I noted in this post a few months ago, the new Attorney General has already issued directives that lead me to suspect that we would be seeing a formal new "Sessions Memo" that seeks to remove some of the "play in the joints" that former AG Eric Holder introduced through prior charging memorandum issued back in 2010 and 2013. Indeed, I have been a bit surprised we have not yet seen new directives from AG Sessions yet in this arena, and this new Post article leads me to suspect a Sessions Memo could be coming out any day now.

UPDATE:  This New York Times article, headlined "Sessions to Toughen Rules on Prosecuting Drug Crimes," suggests that new charging guidance from AG Sessions could be released any day now.  Here is a key paragraph from the article that provides additional context for this important coming federal criminal justice development:

Current and former government officials have said for weeks that Mr. Sessions’s new policy could come at any time. They said Tuesday that they expected to see it finalized shortly, and Mr. Sessions himself has foreshadowed the announcement this year, calling for a return to tougher federal charging policies in speeches and issuing memos telling prosecutors to anticipate policy shifts.

May 9, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, May 08, 2017

A lethal Ohio procedural question: are there any formal rules on when new circuit judges are to be involved in pending en banc matters?

The question in the title of this post came to mind this morning in the wake of the news that, as discussed here, two of President Trump's latest judicial nominees are slated to fill open slots on the Sixth Circuit: Justice Joan L. Larsen and John K. Bush.   As noted here a few months ago, Prez Trump's very first circuit court nomination was also to the Sixth Circuit via the naming of Judge Amul Thapar.  Assuming relatively swift and successful confirmations, the Sixth Circuit could have three new judges within the next few months.

Meanwhile, as regular readers may recall from this post, also scheduled to take place in the next few months in the Sixth Circuit is the rehearing en banc the State of Ohio's appeal of a lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  The Sixth Circuit has scheduled oral argument on these matters for June 14, and the full court will probably try to issue a ruling in the matter not too long thereafter given that Ohio has a long-postponed execution now scheduled for July 26.

I am inclined to guess that Judge Thapar — who has already coasted through his confirmation hearing — will be a member of the Sixth Circuit by the time of the en banc oral argument in June.  Given that Justice Gorsuch at SCOTUS has apparently been fully participating in cases in which oral argument took place after the time he joined the Court, I would further guess that everyone will think Judge Thapar can and should fully participate in the Sixth Circuit's en banc consideration of Ohio's lethal injection protocol if he is there in time for oral argument.

But what should happen if Justice Larsen and/or Mr. Bush are both confirmed in, say, late June.  Could they and should they be involved in the consideration of these lethal Ohio matters?   Adding to the potential intrigue and head-counting is the fact that I believe Judge David McKeague is technically now still an active judge, but will be only until his successor if confirmed. Arguably, Judge KcKeague should not be part of the en banc decision-making once and whenever Justice Larsen gets confirmed to the Sixth Circuit.

Perhaps the Sixth Circuit has some clear rules on these kinds of en banc transition issues, and I would welcome any and all input from knowing en banc mavens.  In addition, it is quite possible that there are sufficient votes currently on the Sixth Circuit one way or the other to make these transition issues relatively inconsequential to the outcome in this important en banc case.  Still, when it comes to review of lethal injection protocols or just about anything else dealing with the death penalty, it does not seem that anything ever really becomes inconsequential.  

(In addition, and surely not to be overlooked as the buzz over another SCOTUS retirement grows, if and when Judge Thapar and Justice Larsen join the Sixth Circuit, this court will have three of the remaining 20 persons from Prez Trump's SCOTUS short lists.  This fact alone makes anything the Sixth Circuit does in the coming months even that much more interesting.)

Prior recent related posts:

May 8, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

A few (too-quick) sentencing notes on Prez Trump's new slate of judicial nominees ... and seeking more

This Politico article and this New York Times article both report that President Donald Trump will today be making a bunch of nominations to the lower federal courts.  Here are the basics via the Times, with links from the original:

One is Justice Joan L. Larsen, a former law clerk to Justice Antonin Scalia and law professor at the University of Michigan, who now serves on the Michigan Supreme Court. She will be nominated to the United States Court of Appeals for the Sixth Circuit, in Cincinnati.  [Another] is Justice David R. Stras, a former law clerk to Justice Clarence Thomas and law professor at the University of Minnesota, who now serves on the Minnesota Supreme Court. He will be nominated to the Eighth Circuit, in St. Louis....

Monday’s slate of nominees will be followed by additional ones at regular intervals, the White House official said.

The announcement on Monday will include three other nominees for federal appeals courts: Amy Coney Barrett, a law professor at Notre Dame and former law clerk to Justice Scalia, to the Seventh Circuit in Chicago; John K. Bush, a lawyer in Louisville, Ky., to the Sixth Circuit; and Kevin C. Newsom, a lawyer in Birmingham, Ala., who served as the state’s solicitor general and as a law clerk to Justice David H. Souter, to the 11th Circuit in Atlanta....

Mr. Trump also intends to nominate four judges to federal district courts: Dabney L. Friedrich, until recently a member of the United States Sentencing Commission, to the Federal District Court for the District of Columbia; Magistrate Judge Terry F. Moorer of the Federal District Court in Montgomery, Ala., to be a district judge there; David C. Nye, a state judge in Idaho, to the Federal District Court there; and Scott L. Palk, an official at the University of Oklahoma College of Law, to the Federal District Court in Oklahoma City.  The president will also name Damien M. Schiff, a lawyer with the Pacific Legal Foundation, which supports private property rights, to the United States Court of Federal Claims.

For hard-core  sentencing fans, at least one name on this list should immediately jump off the page: Dabney Friedrich.  She served with distinction as a US Sentencing Commissioner from 2006 to 2016, and if confirmed to the DC District Court, she will join its current Chief Judge Beryl Howell and also Judge Ketanji Brown-Jackson as former Commissioners turned DC District sentencing judges.

Digging a little deeper for additional sentencing intrigue among persons on the Trump nomination list, this post at Above the Law from last week noted that Professor Barrett co-wrote an interesting article back in 1998, titled Catholic Judges in Capital Cases, which explores whether and how Catholic judges can and should be involved in enforcing the death penalty as members of the judiciary.  It will very interesting if this article gets any significant attention from folks on both the left and the right as her confirmation hearings approach.

Digging even deeper, checking out the firm bio of John Bush reveals not only that his practice areas include "White Collar Criminal Defense" but also that one of his listed "Representative Cases & Achievements" includes being "one of the attorneys who represented former Los Angeles Police Sergeant Stacey Koon in his successful sentencing appeal to the U.S. Supreme Court in the Rodney King case." 

There are many other interesting aspects to this list of nominees.  I am struck, for example, that three of the five circuit court nominees have significant histories as law professors.  But, of course, my sentencing focus makes me especially interested to think about how these and other Trump judicial nominees might shape sentencing jurisprudence.  And, as my post title indicates, I welcome and encourage reader input (via comments or email) with any additional information or thoughtful speculation about the criminal justice perspectives that some or all of these nominees will bring to their new positions.

UPDATE: A bit more looking around reveals that three of the four nominees to be federal district judges are former federal prosecutors. (The one exception appears to be Judge Nye, and he notably was previously nominated by Prez Obama for the same job that Prez Trump is now to nominate him for.) President Trump seems likely, at least based on this list of nominees, to continue a long-standing tradition of elevating a significant number of former prosecutors to the federal bench.

May 8, 2017 in Who Sentences? | Permalink | Comments (5)

Sunday, May 07, 2017

Notable new Atlantic series "on efforts across the United States to move beyond the age of mass incarceration"

JusticeBUG_1As announced via this article a few day ago, headlined "Imagining the Presence of Justice," there is a notable new project from The Atlantic which aspires "to cover the evolution of criminal justice in America with a heightened focus on the different systems and approaches developing all over the nation." Here is more on how The Atlantic sets ups its plans followed by links to three early notable pieces in the series:

Over the past several decades, America has seen a startling divergence between crime and punishment.  While crime rates dropped steadily from the dramatic peaks of the 1990s, the nation’s incarceration rates continued just as steadily to grow.  And so, despite containing only 5 percent of the world’s population, the United States came to hold a quarter of the world’s prisoners.

We’ve covered this divergence extensively in the print and digital pages of The Atlantic, from Ta-Nehisi Coates’s landmark story on the rise of the carceral state and the devastation it wreaked on black families to Inimai Chettiar’s exploration of the many causes of the decline in crime.  Among the findings that emerge most clearly from this robust, sad literature is that the factors driving both aspects of the divergence — the fall in crime, the increasing spread of punishment — are highly complex.  Despite dawning awareness of the deep social and economic costs of mass incarceration, no one-size-fits-all solution exists to change this picture.  Rolling back mass incarceration while protecting public safety will require a legion of efforts in thousands of prosecutors’ offices, police departments, parole boards, and legislative chambers.  "What we have is not a system at all,” as Fordham University’s John Pfaff told The Atlantic's Matt Ford, "but a patchwork of competing bureaucracies with different constituencies, different incentives, who oftentimes might have similar political ideologies, but very different goals and very different pressures on them.”...

In collaboration with reporters across the country, we’ll highlight local initiatives that merit national attention, and talk with experts about where and how lessons from states and municipalities can be applied more broadly.  We’ll look at where the carceral state has spread beyond merely responding to crime, examine the time people spend behind bars without having been convicted, and explore how cities can depend on police to collect fines and fees from their poorest residents to make up for too little tax revenue.

The title of the project comes from Martin Luther King Jr., who included the phrase in his famous letter from Birmingham jail.  That context is worth understanding for the challenge the letter poses to us today, as America struggles to reconcile the need for public safety with the moral imperative of justice....  From his cell, King wrote the famous letter that would cleave the nation’s understanding of “law and order” right in half, arguing that the observance of an unjust law violates the moral order.  "An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law,” he wrote.  He castigated "the white moderate, who is more devoted to ‘order' than to justice; who prefers a negative peace, which is the absence of tension, to a positive peace, which is the presence of justice."

Three (somewhat sentencing-related) piece from the series:

May 7, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Saturday, May 06, 2017

"Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform"

The title of this post is the title of this notable new paper authored by Rachel Barkow and Mark Osler now available via SSRN. Here is the abstract:

One puzzle of President Obama’s presidency is why his stated commitment to criminal justice reform was not matched by actual progress.  We argue that the Obama Administration’s failure to accomplish more substantial reform, even in those areas that did not require congressional action, was largely rooted in an unfortunate deference to the Department of Justice.  In this Article, we document numerous examples (in sentencing, clemency, compassionate release, and forensic science) of the Department resisting commonsense criminal justice reforms that would save taxpayer dollars, help reduce mass incarceration, and maintain public safety.

These examples and basic institutional design theory both point in the same direction: real criminal justice reform requires putting the right institutions in charge of criminal justice policymaking.  This Article offers institutional changes that would help future presidents make the system less punitive and reduce prison populations to achieve the broad transformation that Obama desired but did not attain.  A critical move is to place criminal justice policymaking in the hands of individuals who can advise the president independent of the institutional interests of prosecutors.

May 6, 2017 in Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (21)

Friday, May 05, 2017

Might Prez Trump conduct something of a federal "drug war" retreat through major budget cuts?

The question in the title of this post is prompted by this notable new CBS News article headlined "Trump administration proposes massive cuts to Drug Czar office."  Here are the details:

The Trump administration is looking to slash the White House Office of National Drug Control Policy (ONDCP) budget by nearly 95 percent, according to a memo obtained by CBS News.  The Office of Management and Budget (OMB) has proposed major ONDCP budget cuts for fiscal year 2018 that would cut 33 employees, nearly half the office staff, along with intelligence, research and budget functions at the agency, as well as the Model State Drug Laws and Drug Court grant programs....

The document also zeroes out funding to a number of grant programs including the High Intensity Drug Trafficking Areas (HIDTA) program and the Drug-free Communities Support Program.  These grants are "duplicative of other efforts across the Federal government and supplant State and local responsibilities," the memo states.

HIDTA serves as a catalyst for coordination among federal state and local enforcement entities, and funds task forces in 49 states across the country.  It is considered a vital tool used by law enforcement agencies to go after very high profile drug dealers and conduct in-depth interagency investigations.  The drug free communities support program is the nation's largest drug prevention program and funds 5,000 local anti-drug community coalitions across the country.  This program has also enjoyed broad bipartisan support.

President Donald Trump signed an Executive Order last month to create a presidential commission to tackle the national opioid [crisis], chaired by New Jersey Governor Chris Christie.  The Order stated that the ONDCP would be providing support for the Commission.  "I have been encouraged by the Administration's commitment to addressing the opioid epidemic, and the President's personal engagement on the issue, both during the campaign and since he was sworn into office," the ONDCP's Acting Director, Richard Baum, wrote in an office-wide email. "However, since OMB's proposed cuts are also at odds with the fact that the President has tasked us with supporting his Commission on Combatting drug Addiction and the Opioid Crisis."

"These drastic proposed cuts are frankly heartbreaking, and if carried out, would cause us to lose many good people who contribute greatly to ONDCP's mission and core activities," Baum wrote.

The staff was notified of the cuts Friday after Baum and top aides were notified of the draconian cuts last Thursday.  According to a source familiar with the discussions, Baum has been in close contact with Jared Kushner, who heads up the White House Office of American Innovation.  Baum had hoped to convince the Office of American Innovation that the ONDCP is an essential tool in combatting the opioid epidemic. The discussions did not go as planned.

"The budget process is a complex one with many moving parts," The White House said in a statement to CBS. "It would be premature for us to comment - or anyone to report - on any aspect of this ever-changing, internal discussion before the publication of the document. The President and his cabinet are working collaboratively to create a leaner, more efficient government that does more with less of tax payers' hard-earned dollars."

Due in part of some of the rhetoric used by both Prez Trump and Attorney General Sessions, there has been much talk and consternation about the prospect of the Trump Administration ramping up the federal drug war. But if these significant budget cuts become a reality, it is quite possible that the Trump Administration would be functionally doing a lot more to pull back on the drug war in his first Term than did President Obama during his first Term.

UPDATE: This new CBS News article, headlined "White House dismisses concerns over steep potential cuts to 'Drug Czar' office," includes new statements from White House officials suggesting any ONDCP cuts would not signal a drug war retreat as well as some informed reaction to the budget cutting talk:

A senior administration official suggested that if the White House decided to strip ONDCP of its agency mandate to coordinate collaboration between federal and local law enforcement and public health organizations, transitioning it into an office like the National Security Council or National Economic Council. The official said cuts would "by no means signal the commitment to winning the war on drugs is lessened." The senior administration official pointed to dozens of drug programs across many federal agencies as evidence that the White House is committed to anti-drug efforts, even if the ONDCP loses its ability to issue grants.

But Rafael Lemaitre, a former top spokesman for the ONDCP, countered that the reason the ONDCP was created in the first place was to coordinate these programs into one comprehensive strategy for the president. "Creating chaos at ONDCP or eliminating the agency will mean that each of the bureaucrats who run each those long list of programs and are spread out across government will have no single point of contact or direction to follow," Lemaitre said. "Efforts will be duplicated. Presidential priorities won't be followed. Ineffective programs will continue."...

Scores of former government officials, doctors, community based organizations, law enforcement officials and officials at drug treatment and prevention programs agree. In a letter to senior White House adviser Reed Cordish, dozens called on the White House to maintain ONDCP's funding and strong national influence.

"As we have written before, ONDCP brings essential expertise to the table on complex drug issues, expertise that would otherwise be missing or dispersed across multiple agencies," the letter states. "ONDCP holds all federal, state, and local agencies accountable for achieving specific goals to reduce drug trafficking, use, and other consequences."

Kevin Sabet, the head of Smart Approaches to Marijuana and a three-time ONDCP adviser who distributed the letter, did not mince words. "To slash anti-drug finding during this opiate and marijuana crisis is exactly the wrong move at the wrong time," he said. 

May 5, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (16)

Stories of severe federal sentences and the judges forced to impose them

Two different news sources this morning have these two equally interesting pieces about federal sentencing practices and federal judges struggling with their sentencing responsibilities:

May 5, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, May 04, 2017

"The Use of Risk Assessment at Sentencing: Implications for Research and Policy"

The title of this post is the title of this paper authored by Jordan Hyatt and Steven Chanenson recently posted to SSRN. Here is the abstract:

At-sentencing risk assessments are predictions of an individual’s statistically likely future criminal conduct.  These assessments can be derived from a number of methodologies ranging from unstructured clinical judgment to advanced statistical and actuarial processes.  Some assessments consider only correlates of criminal recidivism, while others also take into account criminogenic needs.  Assessments of this nature have long been used to classify defendants for treatment and supervision within prisons and on community supervision, but they have only relatively recently begun to be used — or considered for use — during the sentencing process.  This shift in application has raised substantial practical and policy challenges and questions.

This paper, supported by the U.S. Department of Justice’s Bureau of Justice Assistance, directly addresses these issues and provides information and examples from a range of jurisdictions, including some which have integrated at-sentencing risk assessment programs in place or are in the process of doing so.  Derived from a survey of judges, as well as a series of interviews with stakeholders from across the nation, opportunities for future research and planning to guide the cautious engagement with at-sentencing risk assessment are identified.

May 4, 2017 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

"Will Rod Rosenstein serve as a check on the attorney general, or will he tolerate his boss’s unabashed cheerleading for Trump?"

UntitledThe loaded question in the title of this post is the subheadline of this interesting new Slate piece by Leon Neyfakh with the main headline "The Man Who Could Stop Jeff Sessions." The piece is an extended profile of the fellow who was recently officially confirmed by the Senate to be the second-in-command at the US Justice Department. Here is part of the piece:

Rod Rosenstein — who joined the DOJ in 1990 as a trial attorney in the public-integrity section of the criminal division and most recently spent 12 years as the U.S. attorney for Maryland — is known in legal circles as a consummate professional who has never allowed politics to interfere with his decision-making.  The new deputy attorney general was, famously, the only U.S. attorney appointed by George W. Bush who was asked to stay on by Barack Obama — a merit badge that suggests he has been consistently even-handed in dealing with people from both sides of the aisle.  It’s a reputation that has attached itself to Rosenstein like a very flattering glue. Practically every profile of him includes words like apolitical, principled, and independent.  At his confirmation hearing in March, Maryland Sens. Chris Van Hollen and Ben Cardin called him, respectively, a “fair and focused administrator of justice” and a prosecutor who has conducted himself in “a totally nonpartisan, professional manner.”

In his new job overseeing the DOJ’s day-to-day operations, the 52-year-old Rosenstein is expected to bring a degree of normalcy and structure to an agency that, three months into Trump’s presidency, remains severely understaffed at its top levels. The extent to which he is allowed to assert his principles in running the department — and the extent to which he’s able to exert influence over the attorney general — will be a huge factor in determining what kinds of actions the DOJ takes under Trump and Sessions.

The differences between how Rosenstein and Sessions think about the Justice Department’s role in the federal government are manifest. Where the former seems to buy into an idealized vision of the agency as a nonpartisan instrument of pure law enforcement, Sessions has already demonstrated a gleeful willingness to align himself and his agency with the Trump administration....  Sessions is, of course, a key member of Trump’s cabinet. He was also an enthusiastic adviser to the Trump campaign back when he was a senator and was the first member of Congress to endorse him during the Republican primaries. On account of that history, and his well-established ideological kinship with Trump, Sessions’ continuing closeness to the president makes sense.  And yet there are good reasons to be concerned about a sitting attorney general who is unapologetically loyal to the president.

“There is an inherent tension in the role of attorney general,” said Michael Vatis, who served in the office of the deputy attorney general from 1994 to 1998. “Just like every other cabinet member, he is a political appointee who is supposed to be working the president’s agenda, but at the same time, it’s important for him to maintain a sense of independence from the White House, because inevitably, the Justice Department and the people who work under the AG are going to have to conduct investigations … that have some political element to them.” For those investigations to have credibility, Vatis continued, “you can’t have people in the country thinking … the investigation is not going to be conducted fairly, because the AG is just going to look out for the president’s political interests.”...

For many career lawyers at the DOJ, as well as alumni who have been watching the Trump administration’s manhandling of their beloved agency with increasing horror, Rosenstein’s hiring is a reason to feel cautiously optimistic about the agency’s future.  “He’s a career DOJ guy,” said one agency staffer, speaking on condition of anonymity. “The career people and the long-termers view him as a known quantity.  If they don’t know him personally, they know people who do.  If I had to surmise what the rest of the department thinks, I would guess they’re thinking, ‘OK, this is someone we can work with.’ ”

How much power will Rosenstein have as deputy attorney general? Potentially a great deal. “Obviously the attorney general is the final decision-maker and the visionary for the department. He’s in charge. … But the DAG’s office is essentially the nucleus of the department.  It’s where major litigation is overseen, and it’s where policy initiatives are led,” said Mónica Ramírez Almadani, who served in the DAG's office during the Obama administration....

The fact that Rosenstein himself seems to take great pride in his professionalism and independence raises the question of how he will respond when his boss engages in the kind of actions the administration’s critics see as inappropriately political.  How far will he be willing to go, for instance, to defend the scores of police chiefs around the country who have argued that the immigration crackdown Sessions is demanding will impede their ability to effectively fight crime?  This is what current and former DOJ alumni are waiting to find out: Will Rosenstein serve as any kind of check on the new regime — someone who will tame Sessions’ most aggressive political instincts and push for greater distance between the DOJ and the White House — or will he fall in line and tolerate Sessions’ unabashed cheerleading for Trump?...

“I don’t know how much influence he’ll have on Sessions,” said Richard Jerome, who worked in the associate attorney general’s office from 1997 to 2001. “[Sessions is] a pretty strong personality, he’s certainly not new to Washington, and he has his own views. There’s not much that’s going to change his approach.”

One important factor to consider is that Sessions probably doesn’t believe that “politicization” of the DOJ is the unforgivable sin that many liberals make it out to be. Indeed, it’s fair to argue that the agency is by definition political and has always been in alignment with the administration it exists to serve.  Pretending otherwise, according to this line of thinking, is a form of naïveté: While most people agree that the DOJ should be “nonpartisan” in the sense that a Republican-led agency shouldn’t make it its mission to go after Democrats, the notion that someone like Sessions should try to suppress or hide his ideological priors is a nonstarter.  It’s not clear that it’s even possible for the Sessions DOJ to create distance between itself and the White House, considering that the ideas Sessions believes in most fervently — deporting illegal immigrants, reducing drug use through incarceration, and reducing federal scrutiny of local police departments — are the same ones Trump ran on as a candidate, and has embraced as president....

Still, the AG and the president can be on the same page ideologically without becoming so closely aligned that doing right by the administration becomes more important than doing what’s right.  This is the true meaning of “independence” — and in Rosenstein, Sessions has a deputy whose career has been defined by a belief in its importance. Let’s see if he continues to uphold that belief while working in Sessions’ shadow.

May 4, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (8)

South Carolina Supreme Court rejects constitutional challenge to juve sex offender's mandatory lifetime registration/monitoring

Yesterday the South Carolina Supreme Court handed down an opinion in In the Interest of Justin B., No. 27716 (S. Ct. May 3, 2017) (available here), unanimously rejecting the contention that "mandatory imposition of lifetime registration and electronic monitoring on juveniles is unconstitutional."  The relatively short opinion is a bit curious because, after reviewing a bunch of previous rulings in which it had "upheld the constitutionality of the mandatory lifetime sex offender registry requirement with electronic monitoring for adults and juveniles," the opinion does not discuss Graham or Miller but does confront and reject the juvenile's assertion that the constitutional analysis should "yield a different result under the reasoning of Roper v. Simmons."

Roper is, indisputably, a relevant precedent if and when a juvenile offender is arguing against mandatory imposition of lifetime registration and electronic monitoring.  But, in my view, the more recent precedents of Graham and Miller are even more critical and central to mounting an Eighth Amendment argument against any mandatory lifetime sanction for a juvenile offender. (As noted in this prior post, more than five years ago the Ohio Supreme Court relied heavily on Graham to find unconstitutional a mandatory lifetime registration requirement for juvenile sex offenders.)

In the end, I do not think engagement with Graham and Miller would have made any real difference to the South Carolina Supreme Court.  As this conclusion to the opinion highlights, that court has long deemed registration and monitoring to be civil non-punitive provisions that are not really subject to traditional constitutional limits on punishment:

The requirement that adults and juveniles who commit criminal sexual conduct must register as a sex offender and wear an electronic monitor is not a punitive measure, and the requirement bears a rational relationship to the Legislature's purpose in the Sex Offender Registry Act to protect our citizens — including children — from repeat sex offenders.  The requirement, therefore, is not unconstitutional.  If the requirement that juvenile sex offenders must register and must wear an electronic monitor is in need of change, that decision is to be made by the Legislature — not the courts.  The decision of the family court to follow the mandatory, statutory requirement to impose lifetime sex offender registration and electronic monitoring on Justin B. is AFFIRMED

May 4, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14)

Tuesday, May 02, 2017

After his guilty plea to a civil rights offense, what federal guideline range and ultimate sentence will Michael Slager face for killing Walter Scott?

As reported in this ABC News piece, "police officer Michael Slager pleaded guilty today to a federal civil rights offense in the shooting death of unarmed black man Walter Scott, bringing a conclusion to the case two years after the police shooting was caught on video by a bystander."  Here are more of the case processing basics: 

Slager pleading guilty to violating Scott's civil rights in federal court this afternoon will end the federal case against him and also resolve the state charges that were still pending after a mistrial was declared in the state murder trial last year. Slager's mother and Scott's mother both wept in court as the 35-year old former cop was led away in handcuffs.

Slager, dressed in a gray suit, said very little, answering "yes" to each of the judge's questions about whether he was aware of the various rights he was surrendering.  Slager's attorney, Andrew Savage, said in a statement before court, "We hope that Michael’s acceptance of responsibility will help the Scott family as they continue to grieve their loss."...

Slager, who is white, was accused of killing Scott, an unarmed black man, at a traffic stop on April 4, 2015, while Slager was an officer with North Charleston's police department.  Video that surfaced shortly after the encounter appears to show the moment Slager fatally shot Scott as he ran away. The video garnered national attention, propelling Slager into the spotlight.  He was fired from the force after the shooting.

Slager was charged in South Carolina with murder and pleaded not guilty.  The case ended in a mistrial in December 2016 and the retrial was expected to take place this year.  The federal trial had been expected to take place later this month.  The Justice Department said in a statement today that, according to documents filed in connection with the guilty plea, Slager "willfully used deadly force on Walter Scott even though it was objectively unreasonable under the circumstances."...

Slager has not yet been sentenced and the sentence is at the discretion of the judge, Wilson said. Slager faces a maximum sentence of life in prison for the federal civil rights violation as well as a potential $250,000 fine, the Department of Justice said.

For those thinking about the sentence that Slager can and will face, the plea agreement put together in the case foreshadows some of the likely guidelines action. Specifically, here is what Section 5 of the plea agreement says (with my emphasis added):

The parties request that the Court apply the United States Sentencing Guidelines (Guidelines) to calculate the applicable sentence and impose a sentence consistent with the Guidelines and 18 U.S.C. § 3553. The defendant agrees to waive all constitutional challenges to the validity of the Guidelines.  The defendant understands and acknowledges that the Court will find, by a preponderance of the evidence, the facts used to determine the offense level and, that in making its findings, the Court may consider any reliable evidence, including hearsay. Nothing in this section prevents the parties from filing objections to the Presentence Report prepared by the United States Probation Office, or from arguing the application of specific sections of the Guidelines.  The parties agree that the Court will determine the final Guideline range.  The parties understand that this Plea Agreement binds the parties only and does not bind the Court. The defendant understands that the government will advocate for the Court to apply the guidelines for Second Degree Murder and Obstruction of Justice, and reserves the right to seek a guidelines sentence, up to and including a sentence of life imprisonment.   The defendant reserves the right to advocate for any sentence he deems appropriate and the right to request a downward departure and/or downward variance.

Based on my understanding of this bolded sentence, it would appear the government will advocate for these basic guideline calculations: base level of 38 (for 2d degree murder) + 2 (for obstruction) - 3 (for acceptance of responsibility) = offense level of at least 37.  (I say "at least" 37 for the offense level because some victim-related or other chapter 3 enhancements might be deemed applicable, and the last part of this bolded sentence hints that the government may think other enhancements are applicable.) 

At offense level 37, Slager as a first offender would be looing at a guideline range of 210 to 262 month (17.5 to 21.8 years).  Arguably, the bolded language would preclude the government from seeking a departure or variance above whatever is determined to be the calculated guideline range.  And one can reasonably expect Slager and his defense team will seek a downward departure or variance, though what exact sentence the defense will seek is an interesting issue to watch as sentencing approaches.

May 2, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (20)

Florida legislative debate provides interesting sign of the modern mandatory-minimum drug sentencing times

This new local article from Florida, headlined "Steube bill aimed at curbing overdoses sparks drug sentencing debate," highlights how legislators even in traditionally "tough" states are starting to have much more nuanced discussions about mandatory minimum sentencing proposals. Here are the interesting details:

Legislation aimed at tackling the opioid epidemic in Florida sparked a debate about mandatory minimum drug sentences in the state Senate Tuesday, prompting an amendment that put the measure sponsored by two Southwest Florida lawmakers in jeopardy.

Rep. Jim Boyd, R-Bradenton, and Sen. Greg Steube, R-Sarasota, have been pushing a bill that would establish penalties for the possession of large amounts of fentanyl — a powerful synthetic opioid often laced with heroin — and its many derivatives.  Manatee and Sarasota counties were the top two communities in the state for fentanyl-related deaths per capita in 2015, according to the Florida Medical Examiners Commission.  Fentanyl was responsible for 911 deaths across Florida in 2015, and continues to be a major health crisis across the state.

But mandatory minimum drug sentences have come under increasing scrutiny nationwide and there is bipartisan concern in the Florida Legislature about what many lawmakers view as overly harsh sentencing laws.  The fentanyl bill — with the mandatory minimums included — already has passed the House, but both Republicans and Democrats in the Senate took aim at the sentencing aspect of the bill Tuesday.

The Senate amended the bill — over Steube’s objections — to strip out the mandatory minimums, which included at least three years in jail for possession of between four and 14 grams, at least 15 years for possession of between 14 and 28 grams and at least 25 years for possession of more than 28 grams. That amendment may kill the bill. Boyd does not seem inclined to push for it now, saying in a text message: “I don’t believe the bill deals with this deadly opioid problem” as amended.

Boyd said if the House takes up the Senate bill he would seek to strip off the sentencing amendment. But that likely would keep it from clearing the Senate. Steube noted that the amended legislation still makes possession of large amounts of fentanyl a crime for the first time.  “We’re still taking — in my opinion — a good step in the right direction,” Steube said of the amended bill.

The Senate debate showed the appetite within the chamber for criminal justice reform, an issue that has been championed by Republican Senate President Joe Negron.

Some lawmakers argued that any reforms tackling mandatory minimum sentences should be done in a comprehensive way and that the fentanyl bill was not the right place to start the discussion. “I have some concerns about how we have these bills come along and we put minimum mandatories on them every year,” said Sen. Rob Bradley, R-Fleming Island. But Bradley added that the Senate needs to have a “global discussion” about the issue and argued against the amendment.

Sen. Jeff Brandes, R-St. Petersburg, countered that “it’s the right conversation to have because minimum mandatories don’t work in my opinion.”  Judges need to have discretion over when to crack down and when to show leniency added Sen. David Simmons, R-Altamonte Springs. Tough drug sentencing laws can destroy lives, he said.

Steube said he is sympathetic to concerns about mandatory minimums but believes reform efforts should start with a drug such as marijuana that is not deadly.  “I certainly didn’t want this bill to be the bill that’s talked about,” he said.

The amendment was proposed by Sen. Randolph Bracy, one of the few Democrats in the chamber to chair a committee.  The Orlando lawmaker was not expecting the amendment to generate such a robust debate.  He hopes to address the issue of mandatory minimums in a broad way in his committee next year.

May 2, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)