Friday, January 19, 2018

US Sentencing Commission releases new proposed guideline amendments to address synthetic drugs

As reported in this official press release, this morning "the United States Sentencing Commission approved publication of several proposed amendments to the federal sentencing guidelines, including proposals addressing the treatment of synthetic drugs under the guidelines." Here is more about today's USSC action and the broader on-going amendment cycle:

Today’s proposed amendments stem from a multiyear Commission study of some of the more prevalent and dangerous synthetic drugs in the federal system. The proposals adopt a class-based approach for synthetic cathinones and cannabinoids, two types of synthetic drugs studied by the Commission.  The proposal also defines the term “synthetic cannabinoid” and establishes a single marihuana equivalency for each class.

The Commission also proposed an increase to penalties for fentanyl offenses by setting the offense level for fentanyl equal to the higher offense level currently assigned to fentanyl analogues. The proposal provides more exact guideline definitions for the terms “fentanyl” and “fentanyl analogue”.  An enhancement for misrepresenting or marketing fentanyl or fentanyl analogues as another substance was also proposed.

Circuit Judge William H. Pryor, Jr., the acting chair of the Commission remarked, "A growing number of synthetic drugs are being developed and trafficked on the illicit drug market. It is important that the sentencing guidelines account for our most current understanding of the chemical structure, potency and effect, trafficking trends, and community impact of these drugs. These proposals aim to provide greater clarity, guidance, and efficiency in synthetic drug cases."

During the synthetic drugs study undertaken from August 2016 through December 2017, three fact-gathering public hearings were conducted on each drug type. The Commission received testimony from dozens of experts, including federal judges, scientists, law enforcement officers, and emergency medical personnel.... Several other technical or clarifying amendments were proposed today, including an amendment addressing two application issues relating to the immigration guidelines.

Today's proposals join other proposed amendments published in August 2017 that were held over from the previous amendment cycle. The Commission is expected to vote on the full slate of proposed amendments during the current amendment year ending May 1, 2018.

A public comment period on the newly proposed amendments will close on March 6, 2018, with a reply comment period closing March 28, 2018. To inform public comment, the Commission will soon release an online data briefing on synthetic drugs that highlights some of the findings from the Commission’s study. Two public hearings will also be scheduled in February and March.

The intricate details of these new proposed amendment are set forth in this reader-friendly USSC document, and the intricate details of the holdover proposed amendment are set forth in this reader-friendly USSC document. My own cursory understanding of all these proposals suggests to me that the holdover proposal addressing first offenders and alternatives to incarceration may be the only very consequential proposed amendment potentially in the works. But, of course, every possible guideline change can be very consequential to any defendant and any lawyers involved in any case implicating a perhaps-soon-to-be-amended-guideline.

January 19, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Thursday, January 18, 2018

New research findings by computer scientists "cast significant doubt on the entire effort of algorithmic recidivism prediction"

F1.mediumThis notable new research article in the latest issue of Science Advances provides a notable new perspective on the debate over risk assessment instruments. The article is authored by computer scientists Julia Dressel and Hany Farid and is titled "The accuracy, fairness, and limits of predicting recidivism."  Here are parts of its introduction:

In the criminal justice system, predictive algorithms have been used to predict where crimes will most likely occur, who is most likely to commit a violent crime, who is likely to fail to appear at their court hearing, and who is likely to reoffend at some point in the future.

One widely used criminal risk assessment tool, Correctional Offender Management Profiling for Alternative Sanctions (COMPAS; Northpointe, which rebranded itself to “equivant” in January 2017), has been used to assess more than 1 million offenders since it was developed in 1998. The recidivism prediction component of COMPAS — the recidivism risk scale — has been in use since 2000.  This software predicts a defendant’s risk of committing a misdemeanor or felony within 2 years of assessment from 137 features about an individual and the individual’s past criminal record.

Although the data used by COMPAS do not include an individual’s race, other aspects of the data may be correlated to race that can lead to racial disparities in the predictions. In May 2016, writing for ProPublica, Angwin et al. analyzed the efficacy of COMPAS on more than 7000 individuals arrested in Broward County, Florida between 2013 and 2014.  This analysis indicated that the predictions were unreliable and racially biased.  COMPAS’s overall accuracy for white defendants is 67.0%, only slightly higher than its accuracy of 63.8% for black defendants.  The mistakes made by COMPAS, however, affected black and white defendants differently: Black defendants who did not recidivate were incorrectly predicted to reoffend at a rate of 44.9%, nearly twice as high as their white counterparts at 23.5%; and white defendants who did recidivate were incorrectly predicted to not reoffend at a rate of 47.7%, nearly twice as high as their black counterparts at 28.0%. In other words, COMPAS scores appeared to favor white defendants over black defendants by underpredicting recidivism for white and overpredicting recidivism for black defendants....

While the debate over algorithmic fairness continues, we consider the more fundamental question of whether these algorithms are any better than untrained humans at predicting recidivism in a fair and accurate way.  We describe the results of a study that shows that people from a popular online crowdsourcing marketplace — who, it can reasonably be assumed, have little to no expertise in criminal justice — are as accurate and fair as COMPAS at predicting recidivism. In addition, although Northpointe has not revealed the inner workings of their recidivism prediction algorithm, we show that the accuracy of COMPAS on one data set can be explained with a simple linear classifier.  We also show that although COMPAS uses 137 features to make a prediction, the same predictive accuracy can be achieved with only two features. We further show that more sophisticated classifiers do not improve prediction accuracy or fairness. Collectively, these results cast significant doubt on the entire effort of algorithmic recidivism prediction.

A few (of many) prior related posts on risk assessment tools:

January 18, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

"Rate My District Attorney: Toward a Scorecard for Prosecutors’ Offices"

The title of this post is the title of this notable new report recently released by the Stanford Criminal Justice Center and authored by Katherine Moy, Dennis Martin, and David Alan Sklansky. Here is its executive summary:

Local prosecutor elections can have uniquely consequential results for the American criminal justice system. Paradoxically, however, these elections attract much less voter engagement than other races, and incumbents are repeatedly re-elected.  As a result, activists seeking to convince prosecutors to pursue reforms, or to elect new reform-minded prosecutors, have a hard time communicating just how well a given office is performing.

A prosecutorial rating system is one approach to remedying this information gap. Much like indices used in other public policy areas, such a rating system could be a critical way of communicating to voters and potential electoral challengers whether a prosecutors’ office has effectively pursued the electorate’s policy priorities.

This report begins to chart a path toward building such a rating system.  Drawing on the expertise of experienced public policy index developers, the report outlines a procedure that developers can follow to design and build their own scorecard.  The process described in the report involves several stages, during which developers will need to grapple with key policy and logistical issues.

Although the contours of the process are flexible, the report lays out the following steps to developing a prosecutorial rating system:

1) Gather key personnel and experts and set project benchmarks.

2) Define the index’s goals and target audience, including any intermediaries that might be enlisted to convey the index’s message.

3) Select the variables the index will use to measure performance and decide how much weight to attribute to each variable.

4) Gather data for each variable, including any proxy measurements to use where direct data is unavailable.

5) Aggregate and normalize the data in a coherent, rigorous, digestible format.

6) Disseminate and build support for the index.

Each of these stages involves complex decisions, many of which may need to be revisited throughout the development process. But walking through each of the stages methodically can help highlight areas of dispute and place in a broader procedural context.  By keeping the index’s overall goals in mind as they work through the minute details of each stage, developers are more likely to be able to create a successful index to help meet their reform objectives. 

January 18, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Massachusetts Supreme Judicial Court unanimously rejects constitutional attack on consideration of victim impact statements at sentencing

The Massachusetts Supreme Judicial Court handed down a notable short ruling today in Massachusetts v. McGonagle, SJC-12292 (Mass. Jan. 18, 2018) (available here). Here is how the unanimous opinion starts and ends:

General Laws c. 258B, § 3 (p), permits "victims . . . to be heard through an oral and written victim impact statement at sentencing . . . about the effects of the crime on the victim and as to a recommended sentence."  We transferred this case here on our own motion to answer two questions: first, whether the United States Supreme Court's recent decision in Bosse v. Oklahoma, 137 S. Ct. 1 (2016) (per curiam), precludes a sentencing judge from considering victim impact statements "as to a recommended sentence" under the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights; and second, whether the sentencing recommendation provision violates the defendant's constitutional guarantee of due process.  We conclude that a sentencing judge's consideration of victim impact statements "as to a recommended sentence" is constitutional because the concerns underpinning the Supreme Court's treatment of victim impact statements before a jury during the sentencing phase of a capital murder trial differ from those at issue here.  We further conclude that a victim's right to recommend a sentence pursuant to G. L. c. 258B, § 3 (p), satisfies the requirements of due process. We therefore answer both questions in the negative and affirm....

"Few, perhaps no, judicial responsibilities are more difficult than sentencing. The task is usually undertaken by trial judges who seek with diligence and professionalism to take account of the human existence of the offender and the just demands of a wronged society."  Rodriguez, 461 Mass. at 259, quoting Graham v. Florida, 560 U.S. 48, 77 (2010).  The concerns underlying the Supreme Court's holdings in Booth and Bosse, that sentencing decisions not be made based on emotion, apply in nearly every sentencing decision.  They raise an important caution. When a crime victim recommends a particular sentence to a judge, that judge must dispassionately consider that recommendation, cognizant that the sentencing decision is the judge's and the judge's alone.  We expect judges to make sentencing decisions devoid of emotion, prejudice, and the relative status of a particular crime victim.

We all stand equal before the bar of justice, and it is neither cruel nor unusual or irrational, nor is it violative of a defendant's due process guarantees, for a judge to listen with intensity to the perspective of a crime victim.  We affirm.

UPDATE: Not long after noting this case, it dawned on me that this posting might be a fitting place to link this compelling account from the Washington Post of all the compelling victim impact testimony being offered in a high profile case in Michigan this week.  The extended article is headlined "At Larry Nassar sentencing hearing, a parade of horror and catharsis," and here is the context:

Nearly a year and a half after one woman filed a police report and contacted a newspaper, the criminal cases against Larry Nassar are nearing an end this week with a marathon sentencing hearing — 105 of the more than 130 girls and women who’ve accused Nassar of abuse are expected to speak — that began Tuesday and could end Friday, before a judge levies a sentence for seven sex crimes Nassar has admitted to as part of a plea deal.

January 18, 2018 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2)

An accounting of how criminal justice has changed as the folks inside the Beltway have changed

The Marshall Project has this notable new piece headlined "Trump Justice, Year One: The Demolition Derby; Here are nine ways the law-and-order president has smashed Obama’s legacy." Here is how the piece sets up its listing (readers can click through to review the particulars):

On criminal justice, Donald J. Trump’s predecessor was a late-blooming activist.  By the end of President Barack Obama’s second term, his administration had exhorted prosecutors to stop measuring success by the number of defendants sent away for the maximum, taken a hands-off approach to states legalizing marijuana and urged local courts not to punish the poor with confiscatory fines and fees.  His Justice Department intervened in cities where communities had lost trust in their police.

After a few years when he had earned the nickname "Deporter-in-Chief," Obama pivoted to refocus immigration authorities — in effect, a parallel criminal justice system — on migrants considered dangerous, and created safeguards for those brought here as children.  He visited a prison, endorsed congressional reform of mandatory minimum sentences and spoke empathetically of the Black Lives Matter movement.  He nominated judges regarded as progressives.

In less than a year, President Trump demolished Obama's legacy.

In its place, Attorney General Jeff Sessions has framed his mission as restoring the “rule of law,” which often means stiffening the spines and limiting the discretion of prosecutors, judges and law officers. And under President Trump’s “America first” mandate, being tough on crime is inextricably tied to being tough on immigration.

“I think all roads in Trump's rhetoric and Sessions’ rhetoric sort of lead to immigration,” said Ames Grawert, an attorney in the left-leaning Brennan Center’s Justice Program who has been studying the administration’s ideology.  “I think that's going to make it even harder for people trying to advance criminal justice reform because that's bound up in in the president's mind, in the attorney general's mind, as an issue that they feel very, very passionately on -- restricting immigration of all sorts.” 

Here are nine ways Trump has transformed the landscape of criminal justice, just one tumultuous year into his presidency.

January 18, 2018 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (8)

Wednesday, January 17, 2018

Detailing how AG Sessions seeks to block sentencing reforms in White House criminal justice reform push

Vice News has this new piece providing a little backstory on how and why the event last week at the White House was focused only on prison reform and lacked any discussion of sentencing reform.  The piece is headlined "Jared Kushner’s prison reforms hit a brick wall called Jeff Sessions," and here are excerpts:

For the past six months, the president’s son-in-law Jared Kushner has been working on a potentially bipartisan initiative: to reform the U.S. criminal justice system.  Kushner has been holding “listening sessions” to develop White House agenda on criminal justice reform, including policy recommendations such as providing incentives to companies for hiring former felons, investing in inmates once they leave prison, and perhaps most importantly, reforming sentencing laws, including mandatory minimum sentencing, a relic of the 1980s and 90s war on drugs and the focus of a three-year bipartisan reform effort in the Senate.

It all culminated in last week’s White House roundtable discussion on prison reform with President Trump, several Republican governors, and conservative activists. Except one thing was missing: sentencing reform.  Attorney General Jeff Sessions opposes reforming mandatory minimum sentencing and effectively blocked it from becoming part of the White House reform agenda, according to three people who attended meetings with White House advisors on the issue over the past few months.

“Sessions was very powerful in the Senate, but I think he’s actually more powerful now to oppose the bill,” a source familiar with White House meetings on the issue said. “He has an ability to keep in line several members on the conservative side, the DOJ would take a position on the bill, that would scare the Republicans.”

As the prison reform debate played out, Kushner expressed support for limiting mandatory minimum sentencing, according to individuals who have discussed these issues with him, aligning him with Senate Republicans on the Judiciary Committee.  But Kushner dropped the issue from the agenda in order to get Sessions to attend the roundtable discussion last week.

At the meeting Trump suggested creating more programs for job training, education, mentoring and drug addiction aimed at rehabilitation.  There was no discussion of sentencing laws. The White House did not respond to a request for clarification about the Kushner’s nor the White House’s official position on sentencing reform.

“The president directed the Attorney General to reduce violent crime in this country and he is focusing the Department’s efforts on achieving that goal. Incarceration remains necessary to improve public safety, and the effectiveness of incarceration can be enhanced by the implementation of evidence-based reentry programs,” a spokesperson for the Department of Justice said.

“They were never going to be able to get the President to say he supports sentencing reform based on what Sessions has told him,” a source familiar with the meetings said.

A majority of Republicans and Democrats support reforming mandatory minimum sentencing, which takes sentencing leeway away from judges.  Since then the federal prison population has quadrupled; more than half of all federal inmates were sentenced using mandatory minimum laws.

Meaningful sentencing reform is considered key to any reform package that could be brought to vote in the Senate.  Republican Sen. Chuck Grassley of Iowa, Judiciary Committee Chairman, said sentencing reform is a must-have if Trump wants a bill to pass.  “Any proposal that doesn't include sentencing reform is not going to get through the committee,” a spokesman for Grassley said in an email....

In October, the Senate Judiciary Committee unveiled its latest criminal justice reform bill — the Sentencing Reform and Corrections Act — to eliminate many mandatory-minimum sentences for drug crimes.  This is not the first time Congress has tried to pass comprehensive reform.  The same bill made it out of the committee in 2015, but was never voted on due to loud opposition from a group of Republicans, including then-Senator Jeff Sessions.

I remain confident that any number of bills with sentencing reform components could get a majority of votes on the floor of the House and the Senate if leadership would bring these bills up for a vote.  But I surmise AG Sessions has enough sway with leadership (especially in the Senate) to get them to prevent a vote on any bills the AG opposes.

That all said, the kinds of prison reform being discussed and seemingly now endorsed by AG Sessions — some version of the corrections part of the Sentencing Reform and Corrections Act — could be a very significant type of reform that could have a positive impact for every federal offender. Sentencing reform in the form of a reduction in the length and reach of mandatory minimums would be very important in lots of ways, but these mandatories only directly impact roughly 1/4 of all new federal offenders each year and it is unclear exactly when and how any mandatory minimum sentencing reforms would be extended to the roughly 90,000 current federal drug offense prisoners. Corrections reforms that allow prisoners to earn reductions in their sentences could and likely would impact all 180,000+ current federal prisoners and all those new prisoners brought into the system every years.

Of course, we need to see the particulars of any "evidence-based reentry programs" and other prison reforms that AG Sessions can abide before being able to assess effectively who might benefit from a reform bill with only the corrections part of the reform equation.  But my main point it to highlight that the import and impact of any discussed reform always has devilish elements in the details, and a that good form of prison reform may be even better and much more consequential than a middling form of sentencing reform.

January 17, 2018 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Lies, damn lies and fascinating statistics in the US Sentencing Commission FY 2017 sentencing data

I just noticed that the US Sentencing Commission last week released its latest standard quarterly data report, and this one is extra exciting because it contains preliminary data on all cases sentenced during fiscal year 2017.  Critically, FY17 runs October 1, 2016 through September 30, 2017, so a good chunk of the data reflect a period in which Attorney General Loretta Lynch was still in charge of the Justice Department.  Still, a majority of the data reflects sentencings after Attorney General Jeff Sessions took over, and the final third of FY 2017 had all sentencings taking place after AG Sessions issued his May 2017 charging and sentencing memorandum directing federal prosecutors to more regularly seek within-guideline sentences.

I provide all this backstory largely as a prelude to highlighting how similar the USSC FY17 data look to FY16 data. I also thought it interesting to compare some of these data to FY13 and FY09, the last two Prez election year USSC data sets. (I am drawing all these data from Table 19, then Table 6 of these USSC data reports.)

USSC FY        Total Sentences (mean in month)     Drug Trafficking Sentences (mean in month)     Immigration Sentences (mean in month)

2009                81,347 (47 months)                                  23,931 (78 months)                                         25,924 (17 months)

2013                80,035 (45 months)                                  22,354 (72 months)                                         24,972 (16 months)

2016                67,740 (44 months)                                  19,231 (66 months)                                         20,052 (13 months)

2017                66,409 (45 months)                                  18,980 (70 months)                                         20,333 (12 months)

One can mine a lot more data from the FY 2017 report to tell a lot more stories about how, at least so far, formal and informal changes by AG Sessions have not yet made a dramatic impact on federal sentencing statistics.  Indeed, one might be heartened by the fact that fewer federal cases were sentenced in FY 2017 than in the last 15 years, and I think fewer federal drug trafficking sentences were imposed in FY17 than in nearly any other year in the past two decades (though the uptick in average sentence is interesting and may prompt a future post). 

Of course, these data may start looking very different in FY 2018 and beyond as new US Attorneys appointed by Prez Trump take over and their new cases make it all the way to sentencing. Still, I think it notable and interesting that the first run of federal sentencing data of the Trump Era shows a continued decline in overall sentences imposed and in drug trafficking sentences imposed.

January 17, 2018 in Criminal justice in the Trump Administration, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

"Breaking Down Barriers: Experiments into Policies That Might Incentivize Employers to Hire Ex-Offenders"

The title of this post is the title of this notable new Rand Corporation research report. Here is its summary and some of its key findings and recommendations:

The rate of criminal punishment in the United States has had far-reaching economic consequences, in large part because people with criminal records are marginalized within the labor market. Given these negative economic implications, federal, state and local officials have developed a host of policies to encourage employers to hire ex-offenders, with varying degrees of success.  To inform policies and programs aimed at improving employment rates for ex-offenders, we examined employer preferences regarding policy options targeted to incentivize hiring individuals with one nonviolent felony conviction.

In our experiments, we found employers were 69 percent more likely to consider hiring an ex-offender if a hiring agency also provides a guaranteed replacement worker in the event the ex-offender was deemed unsuitable and 53 percent more likely to hire an ex-offender who can provide a certificate of validated positive previous work performance history.  Having consistent transportation provided by a hiring agency increased the likelihood of being considered for hire by 33 percent. 

Employers also were found to be 30 percent more likely to consider an ex-offender for hire if the government increases the tax credit from 25 percent of the worker’s wages (up to $2,500) to 40 percent (up to $5,000) — double the current maximum amount allowed by the Work Opportunity Tax Credit — and 24 percent more likely to hire an ex-offender if the government completed all tax-related paperwork.

Key Findings

Worker Replacement and Fee Discounts Increase Hiring Prospects for Ex-Offenders...

Tax Credits Have a Similarly Positive Effect...

Employer Access to Previous Performance Could Factor into Hiring...

Recommendations

  • Staffing agencies and reentry or reintegration programs could increase the likelihood of employment for people with a criminal record if they guarantee prospective employers a replacement employee.
  • State policymakers should consider expanding post-conviction certification programs. Across both the tax credit and staffing agency discount experiments, employers demonstrate a clear preference for wanting to know whether an ex-offender job candidate has a consistent work history and verifiable positive employment references versus simply knowing whether the person follows company codes of conduct.
  • Tax agencies should consider reducing the paperwork that companies have to fill out for credits. Government agencies could also consider providing help to prepare and submit the forms.
  • Ensuring reliable transportation to and from a job site for candidates with a criminal record increases the likelihood an employer will support hiring such individuals. As with reducing paperwork, the impact of this policy is more limited than many of our other tested policy features.

January 17, 2018 in Collateral consequences, Offender Characteristics, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Tuesday, January 16, 2018

"A Smarter Approach to Federal Assistance with State-Level Criminal Justice Reform"

The title of this post is the title of this notable new paper authored by John Pfaff for the American Enterprise Institute. Here is its abstract:

This brief explains how Congress and the president can best help reduce our country’s outsized reliance on imprisonment, a goal with rare, widespread bipartisan support.  Successful interventions will need to target issues that previous efforts have overlooked or ignored, and they will need to take better account of the haphazard ways that costs, benefits, and responsibilities are fractured across city, county, state, and federal governments.  If designed properly, however, federal efforts could play an important role in pushing our criminal justice system to adopt more efficient, as well as more humane, approaches to managing and reducing crime.

January 16, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Is "tough-on-crime" no longer a winning political strategy?

The question in the title of this post is prompted by this new Daily Beast article authored by Inimai Chettiar and Udi Ofer, which is headlined "The ‘Tough on Crime’ Wave Is Finally Cresting." Here are excerpts:

For decades, politicians competed to see who could push the most draconian criminal justice policies. Jeff Sessions's announcement this month that he would authorize federal prosecutors to go after pot even in states where it is legal seems ripped straight from that playbook.  But the “tough on crime” Attorney General may be in for a surprise.  In 2018, it turns out, demagoguery about crime no longer packs a political punch.  In fact, support for reform may prove to be a sleeper issue in 2018 and 2020.

This would be a big change. Candidates most prominently began to compete on crime in the tumultuous 1960s.  Richard Nixon won with ads showing burning cities and scowling young men, ads crafted by an unknown aide named Roger Ailes.  Ronald Reagan launched a “war on drugs.”  George H.W. Bush won in 1988 with notorious ads telling the story of Willie Horton, who was allowed out of prison under a weekend furlough program.  Bill Clinton in 1992 bragged of his support for the death penalty. These chest-thumping themes were echoed in hundreds of campaigns down the ballot each year....

Over the last decade, a bipartisan movement has arisen to push back and revise criminal justice policy. Throughout 2016 it made real strides. Black Lives Matter and advocates brought national awareness. The Democratic and Republican parties included reducing imprisonment in their platforms — a stark reversal of past policy.  Every major candidate for president — with the exception of Donald Trump — went on the record supporting justice reform.

Then came the startling rise of President Trump. In his inaugural address, he warned of “American carnage” and rampant crime.  His attorney general, Jeff Sessions, had killed the bipartisan sentencing reform bill as a senator. Now, at the Justice Department, he is piece-by-piece dismantling his predecessors’ efforts to reduce federal imprisonment rates.  This has chilled the artery of many politicians once eager to support reform efforts in Washington.

For Trump and Sessions, it seemed, it was still 1968. They are waging traditional scare politics.  But something unexpected happened on the way to the backlash.

Lawmakers in blue and red states alike pressed forward with reforms.  In 2017, 19 states passed 57 pieces of bipartisan reform legislation.  Louisiana reduced sentences. Connecticut modernized bail.  Georgia overhauled probation.  Michigan passed an 18-bill package to reduce its prison population.

And in the 2017 elections, candidates won on platforms that proactively embraced justice reform. In Virginia, for example, gubernatorial candidate Ed Gillespie defined his campaign by running modern day “Willie Horton” ads against Ralph Northam for restoring the right to vote to former prisoners, and branded him as “weak” on MS-13. Voters handed Northam a sizeable win. In deeply conservative Alabama, Doug Jones campaigned on criminal justice reform. Trump repeatedly attacked Doug Jones as “soft on crime.” But Jones beat Roy Moore.

Urban politics have been transformed, too.  District attorneys campaigning on reducing imprisonment are winning across the nation, most recently in Philadelphia.  Justice reform proved a powerful organizing issue among the young and in communities of color.

January 16, 2018 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3)

Sunday, January 14, 2018

"How to make an innocent client plead guilty"

The title of this post is the headline of this depressing and depressingly familiar tale told by public defender Jeffrey D. Stein in The Washington Post.  Here is an excerpt:

The conversation almost always begins in jail.  Sitting with your client in the visitation room, you start preparing them for the most important decision the person has ever made.  Though the case is just a few days old, the prosecution has already extended a plea offer that will expire within the week.  And, because local laws might require detention for certain charges at the prosecutor’s request, or because criminal justice systems punish those unable to pay bail, your client will have to make that decision while sitting in a cage.

Your client is desperate, stripped of freedom and isolated from family.  Such circumstances make those accused of crimes more likely to claim responsibility, even for crimes they did not commit.  A 2016 paper analyzing more than 420,000 cases determined that those who gained pretrial release were 15.6 percentage points less likely to be found guilty.  Not surprisingly, prosecutors commonly condition plea offers on postponing hearings where defendants may challenge their arrests and request release....

You lay out options for your client.  You could go to trial, but that might mean waiting in jail for months, if not years, before a jury hears the case.  The idealist in you — the one who enrolled in law school to “change the system” and to fight for justice on behalf of those who need it most — hopes your client will proclaim a decision to go to trial.  But a wary voice in the back of your head reminds you of the risk and life-altering consequences of losing....

The other option, you explain to your client, is to accept the plea offer.  In some cases, the sentencing difference between accepting a plea and losing at trial can be a matter of decades.  It’s no wonder 95 percent of all defendants accept plea offers.  Or that, according to the National Registry of Exonerations, 15 percent of all exonerees — people convicted of crimes later proved to be innocent — originally pleaded guilty.  That share rises to 49 percent for people exonerated of manslaughter and 66 percent for those exonerated of drug crimes.

You tell your client that they would probably win at trial, but if they lose, they will go to prison. The plea promises some meaningful benefit: getting out of jail sooner, avoiding deportation, not losing a job, seeing a daughter before her next birthday.  But your client would have to accept responsibility for a crime they may not have committed....

The judge turns to you and asks, “Does either counsel know of any reason that I should not accept the defendant’s guilty plea?” You hesitate.  You want to shout: “Yes, your honor! This plea is the product of an extortive system of devastating mandatory minimums and lopsided access to evidence.  My client faced an impossible choice and is just trying to avoid losing his life to prison.”

But you stand by your client’s decision, which was made based on experiences and emotions only they can know.  You reply: “No, your honor.”  The marshals lead your shackled client to a cage behind the courtroom.  And the judge moves on to the next case.

January 14, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Saturday, January 13, 2018

Campaign to recall Brock Turner's sentencing judge turns in many signatures

As reported in this local article, headlined "Effort to recall Stanford rape case judge submits almost 100,000 signatures," a high-profile lenient sentence may soon be putting a California judge's job in jeopardy. Here are the details:

The campaign to recall a judge who issued what many considered a light sentence to a former Stanford swimmer convicted of sexual assault cleared its first hurdle Thursday.

Recall organizers, led by Stanford law Professor Michele Dauber, filed a petition and nearly 100,000 signatures with the Santa Clara County Registrar of Voters in San Jose to place a measure on the June ballot to recall Superior Court Judge Aaron Persky.

If successful, it would be the first recall of a California judge in 87 years.

In June 2016, Persky sentenced former Stanford swimmer Brock Turner to six months in jail after he was found guilty of sexually assaulting an unconscious woman by a dumpster outside of a fraternity party on the college campus, resulting in a national outcry that Turner received special treatment. Prosecutors had argued that Turner should spend six years in state prison, but Persky gave him six months in county jail. He ended up being released in three.

While Persky became a prominent public figure after the Turner decision, the recall campaign has attempted to demonstrate a pattern of judicial bias that extends beyond Turner’s case.... At a news conference Thursday morning, Dauber listed a series of cases in which she believed Persky’s handling of sexual assault cases had been too lenient, including a 2011 civil trial on the alleged gang rape of a 17-year-old high school girl by members of the De Anza Community College baseball team. Persky allowed defendants to show photos of the victim wearing a revealing outfit to the jury....

After serving half of his sentence, Turner was required to register as a sex offender after moving back home with his family in Ohio. He recently appealed his conviction, arguing that he didn’t receive a fair trial.

To qualify for June’s election, the Persky recall campaign was required to turn in 58,634 valid signatures by Feb. 2. Organizers submitted a petition with 94,518 signatures that filled 11 boxes outside of the Registrar of Voters office, which now has 30 days to verify them. “We are very confident that we are going to have thousands more than we need to qualify,” Dauber said.

Persky has tried several times to block the recall effort....

Persky based Turner’s jail sentence on a recommendation from the county probation department. The judge noted that prison would have “a severe impact” on the former Stanford swimmer. The petition to place the recall on the ballot is only the first step in the campaign to push out Persky, Dauber said. If the recall is placed on the ballot, voters also will be asked to select a candidate to fill Persky’s seat on the bench. Cindy Hendrickson, an assistant district attorney for Santa Clara County, is the only candidate to date who has filed papers.

On Thursday, Dauber framed the recall effort in historical context by describing the first successful recall effort in California history. “In 1913, the women’s clubs of San Francisco, much like we have done here, banded together to recall a judge named Charles Weller for lenient decisions on sexual assault,” she said.

Dauber also noted the national momentum of the current #MeToo movement. “Women are standing up and refusing to accept the normalization of harassment and abuse by privileged men, and the movement runs all the way from Hollywood to Silicon Valley to media to politics to the legal profession,” Dauber said, expressing support for Hendrickson.

Persky’s ruling — along with the publication of a gut-wrenching letter the victim read in court during Turner’s sentencing hearing — prompted former Vice President Joe Biden to write an open letter to the victim noting that she is a “warrior” who has been failed by many people and institutions.

In a number of prior posts about the Brock Turner case, I have noted concerns both about the lenient sentence he received and about the campaign to recall his judge. Here is just a sampling of the prior posts this case has generated:

January 13, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Friday, January 12, 2018

"Mental Health Courts and Sentencing Disparities"

The title of this post is the title of this notable new empirical paper now available via SSRN authored by E. Lea Johnston and Conor Flynn.  Here is the abstract:

Despite the proliferation of mental health courts across the United States, virtually no attention has been paid to the criminal justice effects these courts carry for participants.  This article provides the first empirical analysis of differential sentencing practices in mental health and traditional criminal courts.  Using a case study approach, the article compares how Pennsylvania’s Erie County Mental Health Court and county criminal courts sentenced individuals who committed the same offenses and held the same average criminal history score.  Information on the mental health court — including eligibility criteria, plea bargaining and sentencing procedure, sentencing policies, program length, graduation rates, likelihood of early discharge, and consequences of unsuccessful termination — derive from interviews with key mental health court professionals, five years of collected sentencing and dispositional data, and court materials.  The Pennsylvania Commission on Sentencing provided the county-level data, which were disaggregated by offense and criminal history score. The article analyzes sentencing for twelve offenses spanning four offense grades.

The findings are striking.  First, analysis reveals that anticipated mental health court sentences typically exceed — by years — the supervisory periods that offenders would otherwise receive in a county criminal court.  Second, mental health court participants with multiple convictions were significantly more likely to receive consecutive, as opposed to concurrent, sentences than those sentenced by traditional courts.  Third, the analysis suggests the mental health court usually does not divert individuals from jail or prison sentences — a primary justification for these courts — but instead merely extends state control over individuals with serious mental illnesses.  Fourth, key mental health court actors appear unaware of likely sentencing disparities or the high rate of participant failures.  Thus, offenders choosing between mental health and traditional courts may go uninformed about these fundamental differences.  The article concludes with suggestions for future research.

January 12, 2018 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, January 11, 2018

Notable comments by Prez Trump during meeting on prison review

I spent most of Thursday on the road, and various news stations were reporting on statements by Prez Trump others than those on the topic of prison reform. But, as this official White House page reveals, Prez Trump made some comments during a meeting that ought not be overlooked. Here are excerpts:

We’ll be discussing a number of opportunities to improve our prison system to better promote public safety and to help former prisoners reenter society as productive citizens. Very important. Very big topic. It’s become a very big topic, especially, I think, over the last 12 months or so. We’ve been focused on it very strongly.

We support our law enforcement partners, and we’re working to reduce crime and put dangerous offenders behind bars. At the same time, we want to ensure that those who enter the justice system are able to contribute to their communities after they leave prison, which is one of many very difficult subjects we’re discussing, having to do with our great country.

The vast majority of incarcerated individuals will be released at some point, and often struggle to become self-sufficient once they exit the correctional system. We have a great interest in helping them turn their lives around, get a second chance, and make our community safe. Many prisoners end up returning to crime, and they end up returning to prison. Two-thirds of the 650,000 people released from prison each year are arrested again within three years.

We can help break this vicious cycle through job training — very important, job training — mentoring, and drug addiction treatment. And you know how we’re focused on drugs pouring into our country and drug addiction. It’s a big problem even as we speak of this subject. We’ll be very tough on crime, but we will provide a ladder of opportunity to the future....

My administration is committed to helping former inmates become productive, law-abiding members of society.

This Hill article about the meeting, headlined "Trump, Kushner meet with advocates on prison reform," includes quotes from advocates and lawmakers suggesting reasons for optimism and pessimism concerning possible federal legislative reforms moving forward after this notable meeting.

January 11, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (10)

Press reports indicate White House listening session to be focused only on reentry issues, not sentencing reform

As noted here yesterday, there are plans for an afternoon meeting at the White House on criminal justice issues.  But, as this new Newsweek article details, it seems that sentencing reform is not going to be part of the discussion.  The article's headline provides the essentials, "Trump and Kushner's Prison Reform Plan Not Expected to Reduce Sentences or Fix Prison Conditions," and here are the details:

President Donald Trump will hold a listening session on prison reform Thursday that will focus on improving prisoner reentry – the process of preparing inmates for release–with a conservative approach, multiple people in talks with the administration told Newsweek.

The session is only expected to include politicians and religious and nonprofit leaders from the right. It is not expected to include discussion on topics like prison conditions or sentencing reform.

In attendance will be three Republican governors who instituted criminal justice reform in their states–Governor Nathan Deal of Georgia, Governor Matt Bevin of Kentucky and Governor Sam Brownback of Kansas–along with televangelist Paula White, according to Derek Cohen, the director of Right on Crime at the Texas Public Policy Foundation, which has been in discussions about conservative reentry reform methods with the Trump administration. “All the policy issues we’ve discussed with the administration have a conservative orientation,” said Cohen, who added that prison ministries are crucial to a successful release. “Faith is going to be an integral part of any reentry plan.”

The Texas Public Policy Foundation and the Trump administration have discussed cutting government regulation to make it easier for former prisoners to get jobs, Cohen said. Getting rid of restrictions that bar ex-cons from working as barbers, for example, allow inmates to more easily get a job upon release and reduce the likelihood of recidivism, he added.

Koch Industries general counsel Mark Holden will also attend the meeting, which he said will be at 1:30 p.m. in the White House’s Roosevelt Room. “Our point of view at Koch is prisoner reentry needs to begin at day one of the sentence” and not “60 or 90 days out” from release, said Holden, who had also been involved in the prison reform talks that Trump senior adviser and son-in-law Jared Kushner began last summer. Holden added that mental health and drug treatment, along with vocational training, need to happen inside prisons so inmates are prepared for life outside when they are released.

“I’m delighted that the president has made this a priority,” said Pat Nolan, director of the American Conservative Union Foundation’s Center for Criminal Justice Reform, which has also been in prison reform talks with the Trump administration. “I’ve been working since 1996 to help build a conservative movement in criminal justice reform, and this is a very important turning point.” Cohen and Nolan will not be at the Thursday session, but others from their organizations are attending....

Kushner’s Office of American Innovation is also working on an apprenticeship plan for released prisoners that could match inmates with employers, according to a conservative leader who has been working with the White House on the reforms, but it’s unclear whether that initiative will be announced Thursday.

Excluding organizations that are seen as liberal, like the ACLU or the NAACP, and leaving out sentencing reform was necessary to gain the support of “old guard conservatives” like U.S. Attorney General Jeff Sessions, who will also attend the meeting, the conservative leader said. “Reading the tea leaves, I think what they’ve done is sat down with Mr. Sessions and got him to agree to part of the reforms,” said the conservative leader, who requested anonymity in order to freely discuss the issue. He added that he expects White House Chief of Staff John Kelly to attend and that Housing Secretary Ben Carson and Labor Secretary Alexander Acosta came to previous meetings on the issue.

The White House did not respond to a request for comment late Wednesday evening.

Recent related post:

January 11, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Wednesday, January 10, 2018

Notable report of AG Sessions seeking more federal death sentences, but what about carrying out those long ago imposed?

The Wall Street Journal has this notable article today headlined "U.S. to Seek Death Penalty More Often for Violent Crimes; Attorney General Jeff Sessions authorizes federal prosecutors to seek capital punishment in two murder cases and is said to be weighing it in others, including Manhattan terror attack." Here are excerpts (with two particular lines emphasized):

The Justice Department has agreed to seek the federal death penalty in at least two murder cases, in what officials say is the first sign of a heightened effort under Attorney General Jeff Sessions to use capital punishment to further crack down on violent crime.

In a decision made public Monday, Mr. Sessions authorized federal prosecutors to seek the death penalty against Billy Arnold, who is charged with killing two rival gang members in Detroit.  The decision followed the first death-penalty authorization under Mr. Sessions, made public Dec. 19, when he cleared prosecutors in Orlando to seek a death sentence against Jarvis Wayne Madison, who is charged with fatally shooting his estranged wife in 2016.

The Justice Department is also considering seeking death sentences against Sayfullo Saipov, accused of killing eight people in November by driving a truck onto a Manhattan bike lane, and against two defendants in the 2016 slaying of two teenage girls by MS-13 gang members on Long Island, outside of New York City, according to people familiar with the deliberations.

Mr. Sessions views the death penalty as a “valuable tool in the tool belt,” according to a senior Justice Department official. The official said the death penalty isn’t only a deterrent, but also a “punishment for the most heinous crimes prohibited under federal law.” The Justice Department under President Donald Trump expects to authorize more death penalty cases than the previous administration did, the official said....

The last federal execution was in 2003. Since 1963, three federal defendants have been executed. The federal government has secured 25 death sentences since 2007, down from 45 death sentences between 1996 and 2006....

Only 2% of death-penalty cases are sentenced in federal court. Several types of murder cases fall under federal jurisdiction, including those involving drug trafficking, racketeering or — in Mr. Madison’s case — interstate domestic violence and interstate stalking.

The Obama administration sought the federal death penalty in at least four dozen cases, fewer than the Bush administration, according to the Federal Death Penalty Resource Counsel, a federally funded program to assist death penalty lawyers. The cases authorized under the previous administration included ones involving terrorism, the killing of children or law-enforcement officers, and murders by prisoners already serving life sentences.

But in recent years, a Justice Department review of the drugs used to execute prisoners prompted an effective moratorium on federal executions.

Mr. Sessions appears to be seeking the death penalty against a broader set of violent crimes. Former Justice Department officials under President Barack Obama said they typically wouldn’t have authorized capital punishment in a case like Mr. Arnold’s, which involves gang-on-gang violence. Murder cases with “victims who were themselves involved in criminal activity” are the ones where death penalty decisions tend to fluctuate by administration, said David Bitkower, a former Justice Department official under Mr. Obama who prosecuted two death-penalty gang cases.

Eric Holder, who served as attorney general from 2009 to 2015, personally opposed the death penalty. Loretta Lynch, Mr. Holder’s successor, called capital punishment “an effective penalty” at her confirmation hearing.

Mr. Sessions has put combating violent crime at the center of his agenda, encouraging prosecutors to pursue longer prison sentences and approving the hiring of dozens of new violent-crimes prosecutors.

The moves come as the death penalty on the state and federal level has been in decline. State executions are hovering near 26-year lows, partly due to dwindling supplies of lethal drugs and growing legal scrutiny from courts....

Former prosecutors say an increase in death-penalty cases could be time-consuming and expensive for both government and defense lawyers. Appeals in death penalty cases can take decades.

There are 61 prisoners on federal death row, compared with more than 2,800 in the states.

The de facto federal moratorium on executions got started more than a decade ago in the run up to the Supreme Court's first review of the constitutionality of lethal injection protocols in Baze.   After Baze resolved the basic constitutionality of lethal injection protocols, and especially after Glossip back in 2015 had the Supreme Court making pretty clear that jurisdictions could lawfully use a number of potential lethal injection drugs, the justification for continuing the de facto federal moratorium on executions became shaky at best.  Consequently, if AG Sessions is really serious about the death penalty as a "valuable tool in the tool belt," he needs to make an effort to make sure that the tool is actually fully operational.  Sending folks to US death row when there are no executions going forward is really just another way to impose LWOP while perpetuating a functional legal fiction.

Notably, this helpful list of all 61 federal death row prisoners from the Death Penalty Information Center reveals that 10 condemned have been languishing on federal death row for two decades or longer, and most have been there more than a decade.  Especially given that Justice Breyer has often argued that long stays on death row violate the Eighth Amendment, AG Sessions might even suggest he is duty bound to try to speed up the federal execution process in order to avoid possible constitutional violations.

January 10, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Interesting report of plans for Prez Trump to hold a "listening session on prison reform" this week

Axios has this notable new scoop about notable White House plans including President Trump under the headline "Scoop: Jared's policy push on prison reform."  Here are the details:

President Trump tomorrow will hold a listening session on prison reform, after six months of quiet exploration of the issue by senior adviser Jared Kushner (who turns 37 today).

Why it matters: The White House sees this as a conservative issue (save money, cut crime) that could get bipartisan support (spending for workforce development), heading into a midterm election year when it'll be even harder to get congressional accomplishments than it was last year.

  • Under the auspices of Kushner's Office of American Innovation, administration officials have met with faith-based leaders, former inmates who have been rehabilitated, conservative leaders, and experts on the issue.
  • Attorney General Jeff Sessions will join Thursday's session.
  • Jared and his wife, Ivanka Trump, held a dinner discussion at their home, including Sens. Dick Durbin (D-Ill.), Amy Klobuchar (D-Minn.), Mike Lee (R-Utah) and Sheldon Whitehouse (D-R.I.)
  • The administration is exploring possible legislative proposals and administrative actions. An early step could include a push for public awareness involving churches.
  • The issue came up during this weekend's Camp David meeting with GOP congressional leaders.

Koch Industries general counsel Mark Holden, a longtime champion of the issue, told me he has been impressed with Kushner's passion, and that the approach the administration is exploring "has been showed to markedly reduce recidivism."

Jared Kushner's interest and "passion" for criminal justice reform is not big or new news, but the direct involvement of President Trump and Attorney General Sessions in talks about possible federal reforms does strike me as big news. It is worth watching as the rest of this week unfolds whether and how the White House or the Prez himself speaks about this planned meeting (either before or after it takes place).  I am still not prepared to assert that significant federal statutory sentencing reform is becoming likely, but this reported meeting seems like a good and important sign.

January 10, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

Tuesday, January 09, 2018

Two notable new additions to the Senate Judiciary Committee that should generally hearten sentencing reform advocates

As reported here by the Washington Post, "The Senate Judiciary Committee will welcome its first African American members in this century after Democrats added Sens. Kamala D. Harris (D-Calif.) and Cory Booker (D-N.J.) to the panel that handles judicial nominations and appointments to the Justice Department." Here is more:

“The Congressional Black Caucus could not be more proud of both of our Senate members and know the experience and expertise they bring to the Committee will be beneficial for all Americans,” said Rep. Cedric Richmond (D-La.), the CBC’s chairman, in a statement.

Harris, a former attorney general of California, was seen as a likely candidate to join the committee after Sen. Al Franken (D-Minn.) announced his resignation late last year. The appointment of Booker was more of a surprise, coming one year after Booker testified against the appointment of then-Sen. Jeff Sessions (R-Ala.) as attorney general, a rare move for one senator to make against another. Sometime after that hearing, Booker learned that he and Harris were “second and third in line” if openings came up.

“The Trump administration has repeatedly demonstrated its hostility to the ideals of civil rights and equal justice for all,” Booker said Tuesday in a statement announcing his appointment. “As a member of the Senate Judiciary Committee, I will make it my mission to check and balance President Trump and Attorney General Sessions.”

No African American senator has sat on the Judiciary Committee since the 1990s, when Carol Moseley Braun, a Democrat from Illinois, became the first black woman elected to the Senate. There had been pressure on Democrats to elevate Harris; in the end, Senate Minority Leader Chuck Schumer opted to elevate both of the Senate’s black Democrats.

Harris’s appointment was possible because Democrat Doug Jones’s victory last month in Alabama shrank the Republican advantage on two committees. (Republicans now have one-seat advantages on the Judiciary Committee (11 to 10) and Finance Committee (14 to 13); Sen. Sheldon Whitehouse (D-R.I.), who is in his second term, will join the latter committee.)

Senator Booker has been a fairly vocal advocate for sentencing reform since his election to the Senate back in 2013, and he has sponsored bills on a range of criminal justice issues. Senator Harris has worked as a state prosecutor and has expressed support for criminal justice reform in various ways since becoming a Senator just last year.  (Conveniently, Mother Jones has this interesting lengthy new profile of Senator Harris, headlined "The Secret to Understanding Kamala Harris: And why it’s making her a flash point in the Democratic Party," which highlights why some on the left do not see her as a true reform ally.)

Critically, in recent years it has been Senate leadership, not the Senate Judiciary Committee, that has been a roadblock to getting significant statutory sentencing reform enacted.  Thus, the addition of Senators Booker and Harris to the Judiciary Committee does not, in and of itself, directly impact in any dramatic way the likelihood of some form of sentencing reform getting passed in 2018.  But their knowledge and reform-minded vision could and should impact the Committee's work in various ways in the coming year that should be heartening to advocates of sentencing reform.  And their place on the Committee could become a very big deal if the Democrats were able to take back control of the Senate come November.

January 9, 2018 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Fourth Amendment day for SCOTUS oral arguments

The second day of Supreme Court oral arguments in calendar year 2018 brings forth two Fourth Amendment cases on the SCOTUS calendar.  Here are the basics and links to various previews via this SCOTUSblog posting:

Continuing its themed approach to argument days this session, the court is hearing two Fourth Amendment cases today, both involving searches of motor vehicles. The first argument is in Byrd v. United States, which asks whether a driver has a reasonable expectation of privacy in a rental car when he is not listed as an authorized driver on the rental contract. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. D.E. Wagner and Leonardo Mangat preview the case for Cornell Law School’s Legal Information Institute.

 This morning’s second case is Collins v. Virginia, in which the justices will consider the scope of the automobile exception to the warrant requirement. Amy Howe previewed the case for this blog; her coverage was first published at Howe on the Court.  Robin Grieff, Jonathan Kim and Hillary Rich have Cornell’s preview, and Subscript offers a graphic explainer for the case.

January 9, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, January 08, 2018

Interesting comments on reform and rehabilitation from Deputy AG Rosenstein

Deputy Attorney General Rod Rosenstein today delivered these lengthy remarks at the American Correctional Association's Winter Conference.  Folks interested in prison policies and practices, as well as the messages being delivered by the US Justice Department these days, should make time to  read the entire speech.  And sentencing fans (including students in the Sentencing class I start teaching today) may be especially interested in these interesting comments about reform and rehabilitation from the early part of the speech:

The American Correctional Association has a proud history of supporting the work of prison and jail officials.  More than 147 years ago, in 1870, corrections officials from the United States and abroad met in Cincinnati, Ohio and adopted a “Declaration of Principles” they believed should guide the field of corrections.  One of your principles is that the purpose of incarcerating criminals is “the protection of society.”

One of the most important management principles is that it is essential to articulate the big-picture goal for an organization.  That vision filters down into how other managers understand their mission, and ultimately into everything that our employees do. In law enforcement, our goal is to reduce crime.

Correctional agencies play a critical role in achieving that goal.  By providing inmates with structure, and teaching them discipline and skills during their incarceration, you increase the probability that they will become productive members of society and reduce the likelihood of recidivism.

When I read the original version of your principles, I noticed that the word “reform” appears 27 times.  The word “rehabilitate” does not appear at all.  Rehabilitation came into vogue as a sentencing goal in the 20th century.  Many people ultimately concluded that rehabilitation was not a realistic goal for prisons.

After spending almost three decades in law enforcement, I agree that we need to focus on reform of criminals, not rehabilitation.  The reason is that “re-habilitation,” by definition, is about restoring a person’s good reputation and ability to work.

There are some criminals for whom rehabilitation is a reasonable goal.  They are people who lived law-abiding lives and were productive members of society, before something went wrong and caused them to go astray.

But many of the career criminals housed in our prisons unfortunately were not properly habilitated before they offended.  The criminals who were not productive members of society need reform, not rehabilitation.

Admitting that most of our inmates need reform is not a way of disparaging the criminals.  It is instead a frank way to acknowledge that our task is more than just helping them overcome a few mistakes.  Many inmates do not just lack self-restraint.  They lack job skills.  They lack education.  They lack family structure.  They lack discipline.

While they are under governmental supervision, you have the chance to help them reform by imposing discipline and offering opportunities for improvement.  The most important thing for many inmates to learn is the discipline of following a schedule: wake up at a particular time, report to work when required, eat meals at the designated hours, and go to bed early enough to start fresh the next morning.

Some of the programs you offer also may be useful to reform inmates and set them on the right path. Programs such as institutional work assignments, prison industries, substance abuse treatment, and educational or vocational training.  Your work makes our communities safer.

The principles from 1870 also codify the professionalism that defines corrections officials.  They explain that “[s]pecial training, as well as high qualities of head and heart, [are] required to make a good prison or reformatory officer.”

January 8, 2018 in Criminal justice in the Trump Administration, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

SCOTUS back to work with remarkable split habeas ruling giving capital defendant another (long-shot?) chance to obtain relief

At the end of this long Supreme Court order list, comprised primarily of a long list of cases in which certiorari has been denied, comes a fascinating little per curiam opinion in Tharpe v. Seller, No. 17–6075 (S. Ct. jan 8, 2018) (available here).  The ruling is a rare summary SCOTUS win for a capital habeas defendant, and the short majority opinion provides only a small glimpse into the case (though a clear view of what motivated a majority of Justices to want to intervene).  Here are excerpts from the opinion (with cites removed):

Petitioner Keith Tharpe moved to reopen his federal habeas corpus proceedings regarding his claim that the Georgia jury that convicted him of murder included a white juror, Barney Gattie, who was biased against Tharpe because he is black. See Fed. Rule Civ. Proc. 60(b)(6). The District Court denied the motion on the ground that, among other things, Tharpe’s claim was procedurally defaulted in state court. The District Court also noted that Tharpe could not overcome that procedural default because he had failed to produce any clear and convincing evidence contradicting the state court’s determination that Gattie’s presence on the jury did not prejudice him....

Our review of the record compels a different conclusion.  The state court’s prejudice determination rested on its finding that Gattie’s vote to impose the death penalty was not based on Tharpe’s race.  And that factual determination is binding on federal courts, including this Court, in the absence of clear and convincing evidence to the contrary.  Here, however, Tharpe produced a sworn affidavit, signed by Gattie, indicating Gattie’s view that “there are two types of black people: 1. Black folks and 2. Niggers”; that Tharpe, “who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did”; that “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks, but that wasn’t my reason”; and that, “[a]fter studying the Bible, I have wondered if black people even have souls.”  Gattie’s remarkable affidavit — which he never retracted — presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict.  At the very least, jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court’s factual determination was wrong.  The Eleventh Circuit erred when it concluded otherwise.

Justice Thomas, joined by Justices Alito and Gorsuch, authored a lengthy dissent to the majority's short ruling. It starts and ends this way:

If bad facts make bad law, then “unusual facts” inspire unusual decisions.  Ante, at 3.  In its brief per curiam opinion, the Court misreads a lower court’s opinion to find an error that is not there, and then refuses to entertain alternative grounds for affirmance. The Court does this to accomplish little more than a do-over in the Court of Appeals: As it concedes, petitioner Keith Tharpe faces a “high bar” on remand to obtain even a certificate of appealability (COA).  Ante, at 2.

One might wonder why the Court engages in this pointless exercise.  The only possible explanation is its concern with the “unusual facts” of this case, specifically a juror affidavit that expresses racist opinions about blacks.  The opinions in the affidavit are certainly odious.  But their odiousness does not excuse us from doing our job correctly, or allow us to pretend that the lower courts have not done theirs.

The responsibility of courts is to decide cases, both usual and unusual, by neutrally applying the law.  The law reflects society’s considered judgments about the balance of competing interests, and we must respect those judgments.  In bending the rules here to show its concern for a black capital inmate, the Court must think it is showing its concern for racial justice.  It is not.  Its summary vacatur will not stop Tharpe’s execution or erase the “unusual fac[t]” of the affidavit.  It will only delay justice for Jaquelin Freeman, who was also black, who is ignored by the majority, and who was murdered by Tharpe 27 years ago. I respectfully dissent....

Today’s decision can be explained only by the “unusual fac[t]” of Gattie’s first affidavit.  Ibid.  The Court must be disturbed by the racist rhetoric in that affidavit, and must want to do something about it.  But the Court’s decision is no profile in moral courage.  By remanding this case to the Court of Appeals for a useless do-over, the Court is not doing Tharpe any favors.  And its unusual disposition of his case callously delays justice for Jaquelin Freeman, the black woman who was brutally murdered by Tharpe 27 years ago. Because this Court should not be in the business of ceremonial handwringing, I respectfully dissent.

This is quite the way to start Supreme Court activity in 2018, a year that seems certain to have at least the usual share of SCOTUS fireworks. (I am also inspired by Justice Thomas's closing thought to imagine a new tagline for this blog: "Engaged in ceremonial handwringing since 2004.")

January 8, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Sunday, January 07, 2018

Noticing the continued decline of the federal prison population (for now) ... and a story embedded with intricacies

PrisonPopuGraphicOver at the Washington Post's WonkBlog, Keith Humphreys has this important little discussion of the federal prison population under the headlined "The number of people in federal prisons is falling, even under Trump."  Here are excerpts (with a few lines emphasized for some follow-up commentary):

When states began shrinking their prison populations almost a decade ago, the federal prison system was still growing each year and thereby undermining progress in reducing mass incarceration. But in the past four years, the federal system has cut its inmate population by one-sixth, a decrease of over 35,000 prisoners.

Because criminal justice is mainly the province of the states, the federal prison system holds only about 13 percent of U.S. inmates. Yet that is still a significant number of people in absolute terms: The system held 219,300 inmates at its peak in 2013. Four subsequent years of significant contraction dropped the federal inmate population to 184,000 by the end of 2017.

Obama-era changes to drug crime prosecution and sentencing coupled with a historic level of clemency grants to federal inmates by President Barack Obama helped bring the federal prison system to its lowest population size since mid-2004 and its lowest incarceration rate (i.e., adjusted for population) since the end of 2002.

Given President Trump’s penchant for “tough on crime” rhetoric, some observers may find it surprising that the federal prison population kept dropping under the first year of the Trump administration. The most likely cause is also the most obvious. When a nation is blessed with two decades of falling crime rates, this eventually translates into lower incarceration rates because there just aren’t as many offenders to arrest, charge and imprison.

Whether the federal prison population continues to decline will depend in part on Trump administration policies. Attorney General Jeff Sessions recently reversed the Obama-era policy of avoiding mandatory minimum sentences in low-level drug cases, which could result in some future growth in the federal inmate population even if crime continues to fall.

The other key determinant of the federal prison population’s future is whether Trump will make use of his powers to pardon or commute the sentences of federal inmates. He only did so for one inmate this year, but that doesn’t necessarily mean he won’t grant more clemencies later.

Though it is important and useful to notice that the federal prison population continued its downward trend in the first year of the Trump Administration, it is not quite accurate to attribute this reality to either "two decades of falling crime rates" or to Presidential commutation practices.  For starters, we had falling crimes rates in the decade from 1992 through 2002, and yet the federal prison population more than doubled from less than 80,000 inmates in 1992 to more than 163,000 inmates in 2002.  And we had another decade of falling crimes rates from 2002 through 2012, and yet the federal prison population rose another 55,000 inmates in that period.  And, of course, crimes rates started ticking up significantly in 2015 and 2016.

Moreover, and perhaps even more importantly, there is actually a very limited (and quite unclear) relationship between the FBI's reported reductions in violent and property crimes — which is the data base for "falling crime rates" — and the federal criminal caseload which is primarily made up of drug and immigration and firearm and fraud offenses.  Indeed, in light of the empirics of the opioid crisis — not to mention increased marijuana activity thanks to state legal reforms — there is reason to speculate that federal drug offenses have actually been rising (perhaps significantly) in recent years.  The dynamics surrounding recent crime rates for federal immigration and firearm and fraud offenses are hard to assess, but that very reality is part of the reason it is hard to link federal prison population changes to what we know (and do not know) about crime rates.  But, without any doubt, there are still plenty of "offenders to arrest, charge and imprison" engaged in the activities that serve as the modern bread-and-butter of federal prosecution.  Though there are a range of linkages between various crime rates and various federal prosecutorial policies and practices, it is very hard to see and measure and assess with any confidence how basic criminal offending (especially as to classic state crimes) may directly impact the size of federal prison populations.

What we can effectively see and measure are changes in federal sentencing laws and federal prosecutorial practices, and these changes suggest a set of intricate stories help account for recent federal prison population changes.  For starters, the US Sentencing Commission enacted a set of broad retroactive changes to the federal drug sentencing guidelines, with crack guideline reductions in 2007 and 2011 and the "Drugs -2" reductions in 2014.  These changes reduced the sentences of, and is continuing to lead to the early release of, many thousands of federal prisoners.  In addition, and perhaps even more statistically important for the very latest federal prison data, federal prosecutors after 2012 began decreasing dramatically the number of cases getting all the way to federal sentencing.  According to US Sentencing Commission data, in Fiscal Year 2012, federal prosecutors brought over 84,000 cases to sentencing, whereas by Fiscal Year 2016, federal prosecutors brought fewer than 67,750 cases to sentencing.  And, especially with a slow transition to new US Attorney positions, it may take some time for the new Attorney General to ramp up yearly federal prosecutions (assuming he even wishes to do so).

In other words, the always dynamic stock and flow story of prison populations provides a somewhat more granular understanding of declines in the federal prison population.  Changes to federal sentencing laws made retroactive has had a significant impact on the "stock" of federal prisons.  (Prez Obama's commutations are a small part of this "stock" story, but not until they really got going in 2016, and in the end more than 25 federal prisoners got reduced sentences thanks to retroactive guideline changes for every prisoner who got a commutation from Prez Obama.)  And while guideline changes were reducing the federal prison "stock," it seems the prosecutorial policies announced by Attorney General Holder in 2013 — and perhaps other factors, including decreased national concerns about crime — finally began to reduce what had previously been, for two decades, an ever-increasing federal prison "flow."

I would predict that the May 2017 Sessions charging/sentencing memo could contribute, over time, to increasing both the stock and the flow of the federal prison population.  But other directions coming from Main Justice might complicate this story.  AG Sessions has urged US Attorneys to focus on violent crimes, and there may well be fewer of these cases to bring and they may take more time to prosecute than lower-level drug and gun and immigration cases.  But, of course, the AG has also expressed concerns about drug and gun and immigration cases, and he has been seeking to hire and empower more federal prosecutors in certain arenas.  I will be especially watching how all these developments ultimately impact the US Sentencing Commission's data on cases sentenced (and average sentence imposed) in order to try to predict where the federal prison population may be headed next.

January 7, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Candid confession of error on mandatory minimums from former Idaho Attorney General and Chief Justice

This recent op-ed from a local newspaper, headlined "Why warehouse low-risk drug offenders?," caught my attention primarily based on its author and its very first sentence.  The author is Jim Jones, and here is his bio from the piece: "Jim Jones, an Idaho native, was elected as Idaho Attorney General in 1982 and served two elected terms.  He was elected to the Idaho Supreme Court in 2004 and re-elected in 2010.  Jones served as Chief Justice from August 2015 until his retirement from the Supreme Court in January."  And here is how his commentary starts and ends:

I’ll be the first to admit that it was a mistake to support mandatory minimum sentences for drug traffickers during my tenure as Idaho Attorney General in the 1980s.  Most observers have come to realize that long mandatory sentences are not appropriate for every offender.  Legislatively mandated sentences tie the hands of judges who are best positioned to tailor the appropriate punishment for the crimes committed by a particular defendant.  And, while they do not reduce recidivism, they do needlessly inflict damage on the families of low-risk offenders.  In 2014, Idaho adopted the Justice Reinvestment Act to provide for earlier release of low-level offenders, to ensure their success by providing them greater supervision, to reduce the number of repeat offenders, and to reduce the cost of Idaho’s prison program.  The legislation had broad-based support and holds out great promise for success....

Having observed the judicial system from the inside for 12 years, I believe that our trial court judges have a good feel for who deserves to be incarcerated for a long stretch and who shows promise for staying out of further trouble.  Our judges take into account who is before them and whether they pose a societal risk, rather than just the weight of the drugs they had in their control.  That is how justice is served.  It is not served by a one-size-fits-all system of sentencing where a set of scales determines the length of the prison term.

The court system has worked hard to educate judges as to the correct balance between incarceration and rehabilitation.  Judges share information about sentencing for various offenses throughout the state to bring about a certain amount of uniformity.  The judicial system has developed drug courts to help lower-level offenders get free of drugs and put their lives back on track.  These are the measures that can reduce recidivism, salvage those who can be rehabilitated, and keep families together.  Mandatory sentences do not.  My 1980s mindset was wrong, as was the 1992 legislation.

Last year, Reps. Ilana Rubel and Christy Perry introduced legislation to eliminate the mandatory minimum sentences in the 1992 statute.  Their bill retained the maximum sentences for drug trafficking but left the length of the sentence up to the judge, who can set a minimum prison term of his or her choosing.  That legislation will come up again this year and people should urge their legislators to support it.

January 7, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, January 05, 2018

"Prosecutors and Democracy: A Cross-National Study"

9781316638149The title of this post is the title of this recently published book by Máximo Langer and David Sklansky. Here is how the publisher describes the book's contents:

Focusing on the relationship between prosecutors and democracy, this volume throws light on key questions about prosecutors and the role they should play in liberal self-government.  Internationally distinguished scholars discuss how prosecutors can strengthen democracy, how they sometimes undermine it, and why it has proven so challenging to hold prosecutors accountable while insulating them from politics.  The contributors explore the different ways legal systems have addressed that challenge in the United States, the United Kingdom, and continental Europe.  Contrasting those strategies allows an assessment of their relative strengths -- and a richer understanding of the contested connections between law and democratic politics. Chapters are in explicit conversation with each other, facilitating comparison and deepening the analysis. This is an important new resource for legal scholars and reformers, political philosophers, and social scientists.

January 5, 2018 in Recommended reading, Sentencing around the world, Who Sentences? | Permalink | Comments (2)

"What to Know About the Death Penalty in 2018"

The title of this post is the headline of this recent Marshall Project piece that astutely previews what the year ahead might hold in the arena of capital punishment.  Here is how the piece starts and its preview themes:

Only a little more than a year ago, many opponents of the death penalty were cautiously optimistic that the U.S. Supreme Court — perhaps with a Clinton appointee or two — might strike down the punishment for good. Then came President Donald Trump, who tweeted “SHOULD GET DEATH PENALTY!” about one criminal suspect and recently called for the execution of anyone who kills a police officer. He picked an attorney general, Jeff Sessions, known for his efforts to pursue executions in Alabama, and a Supreme Court justice, Neil Gorsuch, whose first major decision was to deny a prisoner’s request for a stay of execution.

But does all that matter? The number of executions and new death sentences have been trending downward for years. Support for capital punishment in the U.S. is at about 55 percent, its lowest point in more than four decades. Trump’s first year saw a slight rise in death sentences and executions, but those are the product of counties and states; the president and attorney general have little say beyond the occasional federal case. What can we expect at the beginning of 2018? Is the death penalty almost gone, or will the president’s support rejuvenate it?

To answer those questions, there will be four places to watch:

The Counties

It’s up to local, elected district attorneys to decide whether to ask a jury for the death penalty. In the 1990s, many prosecutors campaigned on their successes sending men to death row. But much has changed....

The States

It takes a DA and a jury to send someone to death row, but it takes a massive state bureaucracy to kill him. Courts must uphold the convictions, prison officials must secure lethal injection drugs, and governors and attorneys general must clear political and legal obstacles....

The Supreme Court

Trump could leave a massive legacy at the Supreme Court, especially if Justice Anthony Kennedy follows through on his plan to retire....

The U.S. Attorney General

The federal government has successfully sought capital punishment 76 times since 1988. It will become clear in 2018 whether Sessions will try to impose capital punishment in some current cases.

January 5, 2018 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Thursday, January 04, 2018

DOJ casting new marijuana enforcement memo in terms of "rule of law" and "local control"

Confirming morning reports, today Attorney General Jeff Sessions issued this new one-page memo to all US Attorneys on the topic of "Marijuana Enforcement." The memo rescinds the Cole and Ogden and related Obama-era enforcement memos (calling them "unnecessary"), and does so without announcing any formal or even informal new policy while saying DOJ's well-established general policies and principles for all federal prosecutions should govern.

Notably, this press release issued with the new Sessions marijuana memo provides some of thematic justifications for his decision:

The Department of Justice today issued a memo on federal marijuana enforcement policy announcing a return to the rule of law and the rescission of previous guidance documents....

In the memorandum, Attorney General Jeff Sessions directs all U.S. Attorneys to enforce the laws enacted by Congress and to follow well-established principles when pursuing prosecutions related to marijuana activities. This return to the rule of law is also a return of trust and local control to federal prosecutors who know where and how to deploy Justice Department resources most effectively to reduce violent crime, stem the tide of the drug crisis, and dismantle criminal gangs.

"It is the mission of the Department of Justice to enforce the laws of the United States, and the previous issuance of guidance undermines the rule of law and the ability of our local, state, tribal, and federal law enforcement partners to carry out this mission," said Attorney General Jeff Sessions. "Therefore, today's memo on federal marijuana enforcement simply directs all U.S. Attorneys to use previously established prosecutorial principles that provide them all the necessary tools to disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country."

Interestingly, this new AP article from Colorado, headlined "U.S. Attorney for Colorado: Status quo on marijuana enforcement," suggests local control could mean little or no change in some regions:

The U.S. Attorney for the District of Colorado said Thursday there will be no immediate changes in marijuana enforcement after Attorney General Jeff Sessions rescinded a policy that paved the way for legalized pot to flourish in states across the country.

“Today the Attorney General rescinded the Cole Memo on marijuana prosecutions, and directed that federal marijuana prosecution decisions be governed by the same principles that have long governed all of our prosecution decisions,” U.S. Attorney Bob Troyer said.

“The United States Attorney’s Office in Colorado has already been guided by these principles in marijuana prosecutions — focusing in particular on identifying and prosecuting those who create the greatest safety threats to our communities around the state.

“We will, consistent with the Attorney General’s latest guidance, continue to take this approach in all of our work with our law enforcement partners throughout Colorado.”

It will be interesting to see whether a host of other US Attorneys will explain, in general or in detail, how they play to operationalize the "trust and local control" that AG Sessions says he has now given them.

Related posts from here and MLP&R:

January 4, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3)

"I was Raped. And I Believe The Brock Turner Sentence Is a Success Story."

The title of this post is the headline of this notable new commentary authored by Meaghan Ybos, who is the founder and executive director of People for the Enforcement of Rape Laws. I recommend the piece is full, and here is a snippet:

[T]hose critical of the scrutiny of Judge Persky have not defended Turner’s sentence. I will do so here. I am a rape victim engaged in a lawsuit against the Memphis Police Department for systematically failing to investigate rape cases and I believe that Judge Persky’s sentence was just.

The outrage over the supposedly lenient sentence misunderstands the consequences of Turner’s conviction, which includes lifetime registration as a sex offender, and vilifies individualized sentencing. I also believe that the energy and vitriol directed at Judge Persky should have been used instead to hold police departments accountable for properly investigating rape, which too many fail to do....

We should not demonize judges for handing out individualized sentences, even to Brock Turner. Instead, we should demand that judges use discretion more broadly and in favor of people from all backgrounds.  And we must recall that the very worst criminal justice policy springs from outrage over individual high profile cases from Willie Horton to, more recently, Jose Ines Garcia Zarate, a homeless Mexican immigrant in San Francisco who was just acquitted in a high profile murder that Donald Trump seized upon in his 2016 campaign to support his anti-immigration platform.

Furthermore, advocates ... have falsely characterized Turner’s sentence as a slap on the wrist, but his punishment also involves much more than the number of hours he was caged.  Turner owes court fees and is required to pay the victim restitution.  He must attend a year-long rehabilitation program for sex offenders, which includes mandatory polygraph exams for which he must waive his privilege against self-incrimination.  If he violates the terms of his three-year felony probation, he faces a 14-year prison sentence.  He now has a strike that can be used against him under California’s three-strikes law if he is accused of any future criminal activity.  As a convicted felon, he will not be allowed to own a gun....

The most severe part of Turner’s sentence, which anti-rape advocates largely have glossed over, is the requirement that he register as a sexual offender for the rest of his life. This means that an online sex offender registry will show his picture, his address, his convictions, and details of his probation. These lists, which contain people convicted of an ever-growing number of offenses, are so broad and oppressive that a Colorado federal court deemed them cruel and unusual punishment. They are “modern-day witch pyres” that often lead to homelessness, instability, and more time in prison.

As with Jose Ines Garcia Zarate and Willie Horton before him, political leaders seized on outrage over Turner’s sentence to justify punitiveness. The Turner case spurred a new mandatory minimum law in California removing the option of probation for people convicted of sexually assaulting a person who is intoxicated or unconscious.  By imposing a three-year mandatory sentence, the law removes judicial discretion.  “The bill is about more than sentencing,” said Democratic Assembly member Bill Dodd in a written statement following the bill’s passage. “It’s about supporting victims and changing the culture on our college campuses to help prevent future crimes.”

But it’s at the “front end” of the criminal justice system where most rape complaints falter.  Police have often acted as hostile gatekeepers preventing complaints from ever reaching a courtroom.  History shows police gatekeeping in cities like Philadelphia, St. Louis, Baltimore, Cleveland, Detroit, New Orleans, and New York City.  In recent years, police have regularly closed cases before doing any investigation, discarded rape kits (the San Jose Police Department currently has over 1,800 untested rape kits and refuses to count the rape kits collected before 2012), and have even arrested victims for false reporting. It’s not surprising that police departments solve abysmally few rapes, with some cities’ clearance rates in the single digits.

The Turner case was investigated and prosecuted to the full extent of the law.  For a sexual assault case, it is a rare success.  More punishment isn’t always the best or most just response.  Nor does it necessarily provide justice for victims.  And as long as police gatekeeping prevents rape victims from having consistent access to the criminal justice system, recalling judges and increasing sentences will yield no progress in reducing sexual assault.

January 4, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

US Sentencing Commission announces public meeting to vote on proposed guideline amendments

As detailed in this announcement, the US Sentencing Commission has scheduled "a public meeting ... for Friday, January 19, 2018, at 10:30 a.m." The announced agenda includes "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."

As detailed in this prior post from mid 2017, the Commission did not to promulgate guideline amendments in the 2016-17 amendment cycle, but did articulate an ambitious set of proposed priorities for 2017-18 amendment cycle (and also release a set of proposed holdover amendments for comment).  So there certainly could be some significant federal sentencing guidelies news emerging from the Commission in a couple of weeks.  Stay tuned.

January 4, 2018 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

"The New Reformer DAs"

The title of this post is the title of this lengthy new American Prospect article.  The piece's lengthy subheadline highlights its themes: "As cities grow more progressive, a new breed of prosecutors are winning office and upending the era of lock-’em-up justice. They may hold the key to resisting Trump’s mania for mass incarceration." And here is an excerpt:

District attorneys “are in many ways the most important figures in the system,” says David Alan Sklansky, a Stanford law professor who studies DAs. “They are crucial gatekeepers between the police and the courts. They get to decide who gets charged and what they get charged with. They are the ones who recommend sentencing and negotiate plea agreements.  And since the vast majority of criminal convictions in this country are the result of plea agreements, they are the ones who are negotiating sentences.”

While the war on drugs, mandatory minimums, and discriminatory policing practices have all earned a great deal of scrutiny for creating the levels of mass incarceration we see today, more and more reformers are recognizing the pernicious role that prosecutors — who have a tremendous amount of power and discretion within the system — have played.

John Pfaff, a Fordham law professor and author of the provocative book Locked In, argues that the role low-level drug charges have played in the rise in mass incarceration is overblown. The main drivers, he contends, are the prosecutors in the country’s DA offices. By examining state court data, Pfaff finds that almost all prison population growth since 1994 derives from overzealous prosecutors, who have doubled the rate of felony charges brought against arrestees.

For decades, district attorney politics (almost all counties elect their chief prosecutors) have been relatively conservative affairs, animated by white suburban voters who want assurances of law and order — not by the people of color living in the city and on the receiving end of tough-on-crime policies.  Of the more than 2,400 elected prosecutors in the United States, 95 percent are white, according to the Reflective Democracy Campaign.  In 14 states, all elected prosecutors are white.  Just 1 percent of prosecutors are women of color.

January 4, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

How will local US Attorney's likely respond to new marijuana enforcement guidance coming from AG Jeff Sessions?

The question in the title of this post is prompted by this morning's big federal criminal justice news reported here by AP (and also covered here at Marijuana Law, Policy & Reform):

Attorney General Jeff Sessions is rescinding the Obama-era policy that had paved the way for legalized marijuana to flourish in states across the country, two people with knowledge of the decision told The Associated Press.  Sessions will instead let federal prosecutors where pot is legal decide how aggressively to enforce federal marijuana law, the people said. The people familiar with the plan spoke on condition of anonymity because they were not authorized to discuss it before an announcement expected Thursday....

The move by President Donald Trump’s attorney general likely will add to confusion about whether it’s OK to grow, buy or use marijuana in states where pot is legal, since long-standing federal law prohibits it.  It comes days after pot shops opened in California, launching what is expected to become the world’s largest market for legal recreational marijuana and as polls show a solid majority of Americans believe the drug should be legal.

While Sessions has been carrying out a Justice Department agenda that follows Trump’s top priorities on such issues as immigration and opioids, the changes to pot policy reflect his own concerns.  Trump’s personal views on marijuana remain largely unknown.

Sessions, who has assailed marijuana as comparable to heroin and has blamed it for spikes in violence, had been expected to ramp up enforcement.  Pot advocates argue that legalizing the drug eliminates the need for a black market and would likely reduce violence, since criminals would no longer control the marijuana trade....

Sessions’ policy will let U.S. attorneys across the country decide what kinds of federal resources to devote to marijuana enforcement based on what they see as priorities in their districts, the people familiar with the decision said.

Sessions and some law enforcement officials in states such as Colorado blame legalization for a number of problems, including drug traffickers that have taken advantage of lax marijuana laws to hide in plain sight, illegally growing and shipping the drug across state lines, where it can sell for much more. The decision was a win for pot opponents who had been urging Sessions to take action....

The change also reflects yet another way in which Sessions, who served as a federal prosecutor at the height of the drug war in Mobile, Alabama, has reversed Obama-era criminal justice policies that aimed to ease overcrowding in federal prisons and contributed to a rethinking of how drug criminals were prosecuted and sentenced.  While his Democratic predecessor Eric Holder told federal prosecutors to avoid seeking long mandatory minimum sentences when charging certain lower level drug offenders, for example, Sessions issued an order demanding the opposite, telling them to pursue the most serious charges possible against most suspects.

I want to see exactly what new guidance and statements will come from the Department of Justice and Attorney General Sessions before opining on what this all likely means and portends for federal criminal enforcement and sentencing.  But the question that serves as the title of this post strikes me as the really critical one concerning what comes next. I am inclined to guess that a few local US Attorneys we eager to be free of restrictions created by the 2013 Cole Memo, but that many others have been happy to have a reason not to be to focused on state-legal marijuana business activity. How the implement the new instructions from their boss will be extremely interesting and important for federal marijuana policy, politics and practices in the weeks and months ahead.

Related post from MLP&R:

UPDATEA helpful reader highlighted to me that this news comes on the heels of the announcement yesterday, as detailed in this press release, that "Attorney General Jeff Sessions [Wednesday] announced the appointment of 17 federal prosecutors as Interim United States Attorneys pursuant to 28 U.S.C. § 546."

January 4, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Wednesday, January 03, 2018

Spotlighting felon disenfranchisement in Florida

I am always pleased to see the New York Times editorial board giving attention to criminal justice issues, and I am especially pleased to see this new editorial focused on felon disenfranchisement.  The lengthy piece is headlined "Florida’s 1.5 Million Missing Voters," and here are excerpts:

Everyone remembers that the 2000 presidential election was decided by 537 votes in Florida.  Far fewer remember another important number from the state that year — 620,000, the Floridians who were barred from voting because state records showed, correctly or not, they had been convicted of a felony.

It didn’t matter whether their crime was murder or driving with a suspended license, nor whether they had fully served their sentence. In Florida, the voting ban is entrenched in the Constitution, and it’s for life.  Today, Florida disenfranchises almost 1.5 million of its citizens, more than 11 states’ populations and roughly a quarter of the more than six million Americans who are unable to vote because of a criminal record.

Felon disenfranchisement is a destructive, pointless policy that hurts not only individuals barred from the ballot box, but American democracy at large.  Its post-Civil War versions are explicitly racist, and its modern-day rationales are thin to nonexistent. It can make all the difference in places like Florida, which didn’t stop being competitive in 2000; the state remains a major presidential battleground, and victories for both parties in state and local elections are often narrow.

That could all change if a proposed constitutional amendment gets enough signatures to be placed on the ballot in November and wins enough support.  The initiative would automatically restore voting rights to the vast majority of Floridians who have completed their sentence for a felony conviction, including any term of parole or probation.

This is a long overdue and urgently needed reform.  The only way around Florida’s lifetime ban — as in the other three states with such a ban, Kentucky, Iowa and Virginia — is a direct, personal appeal to the governor.  In the last few years, Terry McAuliffe, as Virginia’s governor, restored voting rights to more than 168,000 people, and the governors in Kentucky and Iowa granted roughly 9 in 10 of the restoration requests they received in the first half of the decade....

The right to vote is the most meaningful mark of citizenship in a democracy. It should be withheld only in extreme circumstances, and its restoration shouldn’t depend on the whims of a governor.  What’s worse, many of these laws, especially in the South, are inextricable from their racist origins. Florida’s was enacted in 1868 — two years after the state thumbed its nose at the 14th Amendment — with the intent to prevent newly freed black people from voting.  Those effects linger today, as one in five black adults in Florida remain disenfranchised because of a criminal record.

The new initiative, which excludes people convicted of murder or sexual offenses, will be placed on the ballot if it receives 766,200 signatures and will take effect if it earns at least 60 percent of the vote. Its advocates have submitted more than one million signatures to date, although many still need to be verified before the Feb. 1 deadline.

One hundred and fifty years after Florida enshrined this awful law, there’s only one clear way to get rid of it.  Legal challenges have fallen short, the governor is no friend to voting rights, and lawmakers have limited power when it comes to constitutional amendments.  It’s time for Florida’s voters to step up and restore the most fundamental constitutional right to more than a million of their neighbors.

I hope this proposed constitutional amendment can get to the ballot and can garner a super-majority of votes.   As long time readers may know, I have long believed as many people as possible should be enfranchised in a democracy, and my basic thinking on this front was explained in this Big Think piece years ago headlined "Let Prisoners Vote."

Thinking beyond this ballot initiative, I suspect Congress could enact legislation that could restrict the reach of extreme state felon disenfranchisement laws.  I know Senator Rand Paul spoke about this issue some years back, and I would guess they might be some opportunity for some bipartisan legislation to try to limit how some states seek to limit the franchise.  (I recognize there could be some constitutional/federalism issues raised if Congress gets too involved in state voting laws, but often if there is a will to expand the franchise, there can be a way.) 

January 3, 2018 in Collateral consequences, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9)

Tuesday, January 02, 2018

NY Times again forcefully calls for Supreme Court to end the use of the death penalty

The New York Times editorial page has long advocated for the abolition of the death penalty, and it started the new year with another long and forceful editorial on this front.  Headlined "Capital Punishment Deserves a Quick Death," here are excerpts:

As the nation enters 2018, the Supreme Court is considering whether to hear at least one case asking it to strike down the death penalty, once and for all, for violating the Eighth Amendment’s ban on cruel and unusual punishments.

Whether the justices take that or another case, the facts they face will be the same: The death penalty is a savage, racially biased, arbitrary and pointless punishment that becomes rarer and more geographically isolated with every year. In 2017 the total number of people sitting on death rows across America fell for the 17th straight year. In Harris County, Tex., the nation’s undisputed leader in state-sanctioned killing, the year passed without a single execution or death sentence — the first time that’s happened in more than 40 years.

Still, Texas was one of just two states — Arkansas is the other — responsible for almost half of 2017’s executions. And nearly one in three of the nation’s 39 new death sentences last year were handed down in three counties: Riverside in California, Clark in Nevada and Maricopa in Arizona.

It would be tempting to conclude from this litany, which is drawn from an annual report by the Death Penalty Information Center, that capital punishment is being reserved for the most horrific crimes committed by the most incorrigible offenders. But it would be wrong. The death penalty is not and has never been about the severity of any given crime. Mental illness, intellectual disability, brain damage, childhood abuse or neglect, abysmal lawyers, minimal judicial review, a white victim — these factors are far more closely associated with who ends up getting executed. Of the 23 people put to death in 2017, all but three had at least one of these factors, according to the report. Eight were younger than 21 at the time of their crime....

The rest of the developed world agreed to reject this cruel and pointless practice long ago. How can it be ended here, for good?

Leaving it up to individual states is not the solution. It’s true that 19 states and the District of Columbia have already banned capital punishment, four have suspended it and eight others haven’t executed anyone in more than a decade. Some particularly awful state policies have also been eliminated in the past couple of years, like a Florida law that permitted non-unanimous juries to impose death sentences, and an Alabama rule empowering judges to override a jury’s vote for life, even a unanimous one, and impose death.

And yet at the same time, states have passed laws intended to speed up the capital appeals process, despite the growing evidence of legal errors and prosecutorial misconduct that can be hidden for years or longer. Other states have gone to great lengths to hide their lethal-injection protocols from public scrutiny, even as executions with untested drugs have gone awry and pharmaceutical companies have objected to the use of their products to kill people.

Last summer, Justice Ruth Bader Ginsburg suggested that the death penalty would eventually end with a whimper. “The incidence of capital punishment has gone down, down, down so that now, I think, there are only three states that actually administer the death penalty,” Justice Ginsburg said at a law school event. “We may see an end to capital punishment by attrition as there are fewer and fewer executions.”

That’s a dispiriting take. The death penalty holdouts may be few and far between, but they are fiercely committed, and they won’t stop killing people unless they’re forced to. Relying on the vague idea of attrition absolves the court of its responsibility to be the ultimate arbiter and guardian of the Constitution — and specifically of the Eighth Amendment. The court has already relied on that provision to ban the execution of juvenile offenders, the intellectually disabled and those convicted of crimes against people other than murder.

There’s no reason not to take the final step. The justices have all the information they need right now to bring America in line with most of the rest of the world and end the death penalty for good.

January 2, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18)

"American Exceptionalism in Crime and Punishment"

9780190203542The title of this post is the title of this new book published by Oxford University Press. The book is an edited collection of essays curated by Kevin Reitz. Here is the publisher's description of the book:

Across the U.S., there was an explosion of severity in nearly every form of governmental response to crime from the 1970s through the 2000s.  This book examines the typically ignored forms punishment in America beyond incarceration and capital punishment to include probation and parole supervision rates-and revocation rates, an ever-growing list of economic penalties imposed on offenders, and a web of collateral consequences of conviction unimaginable just decades ago.  Across these domains, American punitiveness exceeds that in other developed democracies-where measurable, by factors of five-to-ten.  In some respects, such as rates of incarceration and (perhaps) correctional supervision, the U.S. is the world "leader."  Looking to Europe and other English-speaking countries, the book's contributors shed new light on America's outlier status, and examine its causes.  One causal theory examined in detail is that the U.S. has been exceptional not just in penal severity since the 1970s, but also in its high rates of high rates of homicide and other serious violent crimes.

With leading researchers from many fields and national perspectives, American Exceptionalism in Crime and Punishment shows that the largest problems of crime and justice cannot be brought into focus from the vantage point of any one jurisdiction.  Looking cross-nationally, the book addresses what it would take for America to rejoin the mainstream of the Western world in its uses of criminal penalties.

Kevin kindly sent me a copy of the book's Table of Contents and his introductory chapter for posting. That chapter can be downloaded below, following these passages from that chapter's introduction:

One goal of this book is to broaden the scope of American Exceptionalism in Crime and Punishment (AECP) inquiry to include sanctions beyond incarceration and the death penalty.  From what we know, it is reasonable to hypothesize that the United States imposes and administers probation, parole, economic sanctions, and collateral consequences of conviction with a heavier hand than other developed democracies.  Although the inquiries in this book are preliminary, they raise the possibility that AECP extends across many landscapes of criminal punishment — and beyond, to the widespread social exclusion and civil disabilities imposed on people with a conviction on their record.

In addition, the book insists that any discussion of AECP should focus on US crime rates along with US penal severity.  More often than not, American crime is discounted in the academic literature as having little or no causal influence on American criminal punishment.  This is a mistake for many reasons but is especially unfortunate because it truncates causation analyses that should reach back to gun ownership rates, income inequality, conditions in America’s most disadvantaged neighborhoods, and possibilities of joint or reciprocal causation in the production of US crime rates and punitive severity.

This chapter is divided into three segments.  First, it includes a brief tour of the conventional AECP subject areas of incarceration and the death penalty.  Second, it will introduce claims that a wider menu of sanction types should be included in AECP analyses. Third, it will speak to the importance of late twentieth-century crime rates to US punitive expansionism.

Download AECP Reitz Introduction for SSRN

January 2, 2018 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (1)

Monday, January 01, 2018

Prez Reagan's Secretary of State laments "The Failed War on Drugs"

There is nothing really all that notable about this recent New York Times op-ed, headlined "The Failed War on Drugs," save for its authors.  George Shultz, who served as Secretary of State in the Reagan Administration, penned the piece alon with Pedro Aspe, a former secretary of finance in Mexico.  Actually, the op-ed is also notable because it is has some shaky statements (like its suggestion Nancy Reagan tried to charge the modern US drug war), but it is still worth seeing how it makes its case for modern reform in the Americas:

The war on drugs in the United States has been a failure that has ruined lives, filled prisons and cost a fortune.  It started during the Nixon administration with the idea that, because drugs are bad for people, they should be difficult to obtain.  As a result, it became a war on supply.

As first lady during the crack epidemic, Nancy Reagan tried to change this approach in the 1980s.  But her “Just Say No” campaign to reduce demand received limited support. Over the objections of the supply-focused bureaucracy, she told a United Nations audience on Oct. 25, 1988: “If we cannot stem the American demand for drugs, then there will be little hope of preventing foreign drug producers from fulfilling that demand.  We will not get anywhere if we place a heavier burden of action on foreign governments than on America’s own mayors, judges and legislators. You see, the cocaine cartel does not begin in Medellín, Colombia. It begins in the streets of New York, Miami, Los Angeles and every American city where crack is bought and sold.”

Her warning was prescient, but not heeded.  Studies show that the United States has among the highest rates of drug use in the world.  But even as restricting supply has failed to curb abuse, aggressive policing has led to thousands of young drug users filling American prisons, where they learn how to become real criminals.

The prohibitions on drugs have also created perverse economic incentives that make combating drug producers and distributors extremely difficult.  The high black-market price for illegal drugs has generated huge profits for the groups that produce and sell them, income that is invested in buying state-of-the-art weapons, hiring gangs to defend their trade, paying off public officials and making drugs easily available to children, to get them addicted.

Drug gangs, armed with money and guns from the United States, are causing bloody mayhem in Mexico, El Salvador and other Central American countries. In Mexico alone, drug-related violence has resulted in over 100,000 deaths since 2006.  This violence is one of the reasons people leave these countries to come to the United States.

First the United States and Mexican governments must acknowledge the failure of this strategy.  Only then can we engage in rigorous and countrywide education campaigns to persuade people not to use drugs.  The current opioid crisis underlines the importance of curbing demand.  This approach, with sufficient resources and the right message, could have a major impact similar to the campaign to reduce tobacco use.

We should also decriminalize the small-scale possession of drugs for personal use, to end the flow of nonviolent drug addicts into the criminal justice system.  Several states have taken a step in this direction by decriminalizing possession of certain amounts of marijuana.  Mexico’s Supreme Court has also declared that individuals should have the right to grow and distribute marijuana for their personal use.  At the same time, we should continue to make it illegal to possess large quantities of drugs so that pushers can be prosecuted and some control over supply maintained.

Finally, we must create well-staffed and first-class treatment centers where people are willing to go without fear of being prosecuted and with the confidence that they will receive effective care.  The experience of Portugal suggests that younger people who use drugs but are not yet addicted can very often be turned around.  Even though it is difficult to get older addicted people off drugs, treatment programs can still offer them helpful services....

We have a crisis on our hands — and for the past half-century, we have been failing to solve it.  But there are alternatives.  Both the United States and Mexico need to look beyond the idea that drug abuse is simply a law-enforcement problem, solvable through arrests, prosecution and restrictions on supply.  We must together attack it with public health policies and education.  We still have time to persuade our young people not to ruin their lives.

January 1, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

Sunday, December 31, 2017

Looking at enduring challenges in Miller's application in Louisiana and elsewhere

This new lengthy AP piece, headlined "Ruling but no resolution on which teen killers merit parole," details the continuing debate in Louisiana and other states over application of the Supreme Court's recent Eighth Amendment jurisprudence on juve LWOP sentences. Here are excerpts:

Nearly two years after the U.S. Supreme Court ruled that prison inmates who killed as teenagers are capable of change and may deserve eventual freedom, the question remains unresolved: Which ones should get a second chance? Now the ruling — which came in the case of a 71-year-old Louisiana inmate still awaiting a parole hearing — is being tested again in that same state, where prosecutors have moved in recent months to keep about 1 in 3 former juvenile offenders locked up for the rest of their lives.

“There is no possible way to square these numbers with the directive of the Supreme Court,” said Jill Pasquarella, supervising attorney with the Louisiana Center for Children’s Rights, which found that district attorneys are seeking to deny parole eligibility to 84 of 255 juvenile life inmates whose cases are up for review.

Some prosecutors countered that the heinousness of some of the crimes makes these inmates the rare teen offenders the court said could still be punished with life behind bars. “In this community, some of the most violent crimes we’ve had have been committed by juveniles,” said Ricky Babin, district attorney for Ascension, Assumption and St. James parishes, who has filed motions seeking new life-without-parole sentences in four of five cases.

The moves by Louisiana prosecutors echo the aggressive approach in Michigan, where district attorneys are seeking to keep two-thirds of 363 juvenile life inmates behind bars for good. That state’s cases have been on hold for months now awaiting a ruling on whether judges or juries should decide them. The friction prompts agreement by prosecutors and advocates that the nation’s highest court likely needs to step back into the debate over how the U.S. punishes juvenile offenders.

“It’s definitely clear now that the court does need to ... clarify that life without parole is unconstitutional for all children,” said Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth. “We’ve seen in certain states, in certain jurisdictions, that the standard that was set by the court ... is one that prosecutors and judges don’t necessarily feel compelled to follow.”

The court’s January 2016 ruling extended a ban on mandatory life without parole for juvenile offenders to those already in prison for murders committed when they were under 18. The decision didn’t lay out specific procedures for states to follow in reviewing the cases of those 2,000-plus inmates nationwide. Rather it said only that a lifetime behind bars should be reserved for the “rarest” offenders whose crimes reflect “irreparable corruption.”...

The decision ushered in a wave of new sentences and the release of dozens of inmates in states from Pennsylvania to Michigan, Arkansas and beyond — but also brought confusion and inconsistent approaches in other states, an Associated Press investigation earlier this year found.

In Louisiana, a law that took effect in August makes former teen offenders with no-release life terms eligible for parole after serving 25 years — unless a prosecutor intervenes. District attorneys had until the end of October to ask a judge to deny parole eligibility. Several district attorneys refused to discuss individual cases, and court paperwork they filed does not detail arguments against release. But prosecutors said their decisions were based on reviews of offenders’ crimes, their records in prison and talks with victims’ families. “These are all sensitive cases to victims. They lost a loved one in this,” said Scott Stassi, first assistant district attorney for Point Coupee, West Baton Rouge and Iberville parishes. His office is seeking life without parole in all four of its cases....

Louisiana is being closely watched because the state has so many cases — only Pennsylvania and Michigan have more — and its justice system has a reputation for stiff punishment. A new U.S. Supreme Court petition filed by Pasquarella’s group and the national Juvenile Law Center calls out Louisiana for continuing to sentence juveniles to life without parole in 62 percent of new cases since 2012, including those in which offenders were convicted of second-degree murder. The petition seeks an outright ban on life without parole for juveniles; 20 states and the District of Columbia already prohibit the sentence for teens....

In New Orleans, with more juvenile life cases than any other judicial district in Louisiana, prosecutors are seeking to deny 30 inmates a chance for parole. The district has 64 cases, but nearly a quarter had been resolved before the new law took effect. District Attorney Leon Cannizzaro Jr. said the decisions should have been left to the state’s parole board, because it is better able than prosecutors to assess how inmates may have changed. The board will pass judgment on inmates whose parole eligibility is not opposed by prosecutors, but cases in dispute will be argued before a judge....

E. Pete Adams, executive director of the Louisiana District Attorneys Association, thinks it is inevitable that the nation’s top court will be pressed to weigh in as prosecutors test the boundaries of the 2016 ruling. “Ultimately, whatever the court says we’ll abide by,” he said. The Supreme Court recently declined to hear two related cases, including an Idaho petition asking the justices for an all-out ban on juvenile life without parole. For now, that leaves decisions to local prosecutors, judges and parole officials.

A few recent related posts:

December 31, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Is criminal justice reform really "poised to take off in 2018"?

The question in the title of this post is prompted by this lengthy Washington Examiner article headlined "Criminal justice reform poised to take off in 2018."  Here are excerpts:

Criminal justice reform came back with such renewed energy this year after sputtering out in Congress in 2016 that meaningful bipartisan legislation is poised for success in 2018.

In October, Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, announced he and a bipartisan group of senators were reintroducing the Sentencing Reform and Corrections Act, which would overhaul prison sentences for nonviolent drug offenders and allow for more judicial discretion during sentencing. The bill mirrors legislation introduced last Congress that failed after Senate Majority Leader Mitch McConnell, R-Ky., refused to bring it up.

Then days later, Sens. Sheldon Whitehouse, D-R.I., and John Cornyn, R-Texas, reintroduced the Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers In Our National System Act, which builds off of successful criminal justice reforms in the senators' respective states.

The CORRECTIONS Act requires the Department of Justice and its Federal Bureau of Prisons to find a way to reduce inmate recidivism rates. It also calls for lower-risk inmates to be put in less-restrictive conditions to reduce prison costs and allow for more resources to be shifted to law enforcement. The legislation also expands recidivism-reduction programs, and requires the federal probation office to plan for re-entry of prisoners ahead of time....

And finally, the Mens Rea Reform Act was introduced by Sen. Orrin Hatch, R-Utah, and co-sponsored by Republican Sens. Mike Lee of Utah, Ted Cruz of Texas, David Perdue of Georgia and Rand Paul of Kentucky....

Kara Gotsch, who oversees the Sentencing Project's federal advocacy work, told the Washington Examiner, she sees the likelihood of legislation passing as "small" and cited changes being made at the federal level in the Department of Justice under Attorney General Jeff Sessions as a cause for concern. "Areas to watch are how Sessions' harsher charging and sentencing policies take effect now that more Trump-appointed U.S. attorneys are being installed," Gotsch said, noting the Justice Department has predicted an increase in the prison population in 2018 after four years of decline under the Obama administration.

"Also, the U.S. Sentencing Commission is poised to issue new guideline amendments related to alternatives to incarceration which would expand eligibility for federal dependents to receive a non-incarceration sentence. I will be watching to see how far they extend it."

The Justice Department says it will "continue to enforce the law" as the nation faces an opioid epidemic and rising violent crime. “In 2016, 64,000 Americans died from drug overdoses. For two straight years, violent crime has been on the rise. Americans voted for President Trump's brand of law and order and rejected the soft on crime policies that made it harder to prosecute drug traffickers and put dangerous criminals back on the street where our law enforcement officers face deadly risks every day," Justice Department spokesman Ian Prior said.

Where Congress could fail in 2018, states are there to pick up the slack....

For example, Republican Gov. Rick Snyder of Michigan signed an 18-bill criminal justice reform package in March, and state legislators in Florida ended the year championing various bills that they say would help reduce the state’s burgeoning prison population. A pair of measures are set to be taken up that would implement pre-arrest diversion programs statewide that Florida lawmakers say would reduce crime and incarceration rates, as well as a measure that would restore voting rights to some 1.6 million felons in the Sunshine State.

Other states such as New Jersey, Virginia, Alabama and New York elected candidates during the 2017 elections who openly support criminal justice reform, setting up the possibility for revamping at the state and local levels next year.

Phil Murphy, who was elected in a landslide to be the new governor of New Jersey, promised he would put the Garden State in a position to pass criminal justice reform. On his campaign website, he promises changes such as creating a commission to examine mandatory minimum laws, implementing bail reform to prevent someone from being stuck behind bars for being unable to pay a fine, and the legalization of marijuana “so police can focus resources on violent crime.”

"It's important to recognize that 2017 saw passage of criminal justice reform in red and blue states throughout the nation, in contrast to reforms stalling on the federal level," Udi Ofer, deputy national political director at the America Civil Liberties Union said. The ACLU worked to help pass 57 pieces of criminal justice reform legislation in 19 states, he noted.

"From sentencing reform in Louisiana and bail reform in Connecticut, to drug reform in Oregon and probation reform in Georgia, this year proved that the movement for criminal justice reform continues to be strong in the states, even under a Trump-Sessions administration," Ofer said, adding that in 2018, the ACLU expects "these reforms to continue, and to grow, particularly around bail reform, prosecutorial reform and sentencing reform."

For 2018, he said the ACLU is working on bail reform in 33 states including California, Georgia, Ohio and New York. In July, Sens. Kamala Harris, D-Calif., and Rand Paul, R-Ky., introduced the Pretrial Integrity and Safety Act, which would encourage states to change or replace the process they use for allowing people to pay money to avoid sitting in jail until their trial. Ofer also said he expected the issues of mass incarceration and criminal justice reform to "play a larger role in federal and state elections in 2018" following the wins of candidates supporting such reforms in 2017.

As is my general tendency, I am hopeful but not optimistic about the prospects for federal statutory sentencing reform during a pivotal election year. If other possible "easier" legislative priorities get completed (or falter), I could see at least some modest reforms making it through the legislative process. But inertia can be a potent political and practical force in this setting, especially in an election year, so I am not holding my breath.

December 31, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Friday, December 29, 2017

Interesting accounting of "Top Criminal-Justice Wins of 2017"

John Legend and Carimah Townes have this extended review of notable 2017 criminal justice developments at The Root under the headline "The Top Criminal-Justice Wins of 2017."  Here is part of the lead into the listing of 11 "victories," which I have then reprinted without the accompanying explanation:

The criminal-justice system took a hard beating this year — especially at the federal level. The Department of Justice’s head honcho, Attorney General Jeff Sessions, directed all federal prosecutors to seek the harshest charges possible in every criminal case, scaled back police department investigations, bolstered civil asset forfeiture, put military-grade weapons back in the hands of local police and expanded the federal government’s role in immigration enforcement.  Important crime statistics  —  including arrest data  —  were stripped from the FBI’s annual crime report, which is typically used to assess national trends and develop potential solutions. Police officers are still getting away with killing unarmed civilians.

Yes, this year was one of the worst in recent memory.  But what if I told you that there’s reason to hope  —  that there is still some good to latch on to?  Well, there is.  Here are 11 criminal-justice victories to prove it.

1. New York and North Carolina “raised the age.”...

2. The Senate passed critical juvenile-justice legislation....

3. Some juvenile lifers were released from prisons....

4. Thousands of convictions were dropped because of lab scandals in Massachusetts....

5. Louisiana passed a comprehensive reform package....

6. A progressive district attorney candidate in Philadelphia won the election by a landslide....

7. New York City announced a plan to close Rikers Island....

8. There are more eyes on prosecutors....

9. Use of the death penalty is still on the decline....

10. Poor drivers in California got some relief....

11. Multiple programs are helping formerly incarcerated people rebuild....

December 29, 2017 in Recap posts, Who Sentences? | Permalink | Comments (1)

Thursday, December 28, 2017

Silk Road creator Ross Ulbricht raises notable sentencing issue in SCOTUS cert petition

As detailed in this new Reason piece, headlined "Ross Ulbricht Files Appeal to the Supreme Court on His Life Sentence Without Parole: Silk Road founder's appeal stresses the dangerous Fourth and Sixth Amendment implications of his prosecution and sentencing," a notable federal criminal defendant is bringing some notable issues to the Supreme Court via a new cert petition. The full cert petition is available at this link, and here are the petition's seemingly simple questions presented:

1. Whether the warrantless seizure of an individual’s Internet traffic information without probable cause violates the Fourth Amendment.

2. Whether the Sixth Amendment permits judges to find the facts necessary to support an otherwise unreasonable sentence.

SCOTUS gurus know that the first question intersects with issues in the pending Carpenter case, and that fact alone might make this high-profile case a poor vehicle for getting to the post-Booker sentencing issue also raised. The petition, notably, suggests "It would be most efficient for the Court to resolve the question presented in this case now, while it is considering a related question in Carpenter."

SCOTUS gurus know that the second question is one that has been repeatedly avoided by SCOTUS since its Booker-Rita rulings wherein the late Justice Scalia suggested that, even within the advisory guideline system created by Booker, there must be some Sixth Amendment limits on findings by judges to justify lengthy prison sentences.  Despite pushing the matter, Justice Scalia could not garner enough votes for this Sixth Amendment issue to be addressed by the full Court on the merits before his untimely demise.  I am not really expecting a different reality now, although Ulbricht's lawyers astutely notes in his cert petition that Justice Scalia's replacement has previously suggested concerns on this front:

Shortly after Justice Scalia’s opinion in Jones, then-Judge Gorsuch similarly observed that “[i]t is far from certain whether the Constitution allows” a judge to increase a defendant’s sentence within the statutorily authorized range “based on facts the judge finds without the aid of a jury or the defendant’s consent.” United States v. Sabillon-Umana, 772 F.3d 1328, 1331 (10th Cir. 2014) (citing Jones).  Three years later, however, that question re- mains unanswered by the Court, despite intervening opportunities to address it.

A few prior related posts on sentencing and appeals of Ross Ulbricht:

December 28, 2017 in Advisory Sentencing Guidelines, Blakely in the Supreme Court, Booker and Fanfan Commentary, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Wednesday, December 27, 2017

"No Trump windfall for private prisons yet, but some bet on gains"

The title of this post is the headline of this notable new Reuters piece, and here are excerpts:

Investors who bet on private prison operators as big winners from Donald Trump’s tough line on crime and illegal immigration are looking back at a bruising year of high hopes and disappointment. Some, however, say the stocks still offer good value even though an anticipated windfall under the Trump administration so far has failed to materialize.

They say the two listed operators - Geo Group Inc (GEO.N) and CoreCivic Inc (CXW.N) - stand to win contracts from states struggling with prison overcrowding, such as Kansas and Oklahoma, and have plenty of room to accommodate new demand....

The administration’s proposals to bolster the U.S. Immigration and Customs Enforcement (ICE) agency could help in the future though it is still unclear how much new money it will bring. “People are focusing on ICE and ignoring the state level opportunities,” said Jordan Hymowitz managing partner Philadelphia Financial Management in San Francisco.

Geo and CoreCivic shares soared after Trump won the White House, partly on expectations that detention centers they run for ICE would fill up thanks to an anticipated surge in arrests along the Mexican border. Yet the opposite happened - arrests declined for months after Trump's inauguration because fewer people attempted to cross the border and shares in CoreCivic and Geo reversed course after peaking in February and April respectively.

While detentions have been rising from month to month since hitting a year-low in May, the stocks have not yet recovered. CoreCivic now trades 37 percent below its post election high, while Geo is about 32 percent below its 2017 peak.

Investors say lack of clarity on how much business they will get from ICE, the companies’ biggest client, is holding the shares back.... The immigration enforcement agency, which cites its average cost per bed at $129 per day, accounted for about a quarter of CoreCivic’s and Geo’s revenue in the first nine months of 2017. Federal, state and local prisons make up most of the remaining revenue. ICE asked Congress for a $1.2 billion funding increase, but the latest budget proposal offered $700 million, according to Geo, and its 2018 funding remains unclear.

GEO and CoreCivic make up two-thirds of the roughly $5.3 billion per year U.S. private prison business, according to market research firm IBISWorld. However, potential state contracts promise to boost prison companies’ earnings and make them less controversial.... Investors said a pending Kansas Department of Corrections proposal for CoreCivic to build a new prison which the state would manage, would address some investor concerns by making the company a landlord rather than a prison operator. If copied by other states, such approach would open new opportunities for the companies, which mostly derive revenue from running their own prisons or government facilities....

Thousands of vacancies at CoreCivic and Geo facilities should also be viewed as a positive, because they could lift earnings with little extra investment, investors say. Hymowitz estimated that CoreCivic, which has around 15,000 empty beds, could boost by a fifth its funds from operations (FFO) per share if it could fill just a quarter of them. CoreCivic said in November it could add $1 to annual earnings per share (FFO) if it can open its eight idle prisons and boost inmate numbers in partially vacant facilities. Geo said in October that filling 7,000 empty beds could add $50-$60 million to its annual earnings before interest, tax, depreciation and amortization (EBITDA), a roughly 11-13 percent increase to 2018 analyst estimates.

December 27, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Garden State perspective on sex offender castration ... for no obvious reason

This lengthy new local article from New Jersey, headlined "New Jersey child molesters won’t face castration threat any time soon," provides an example of how castration of sex offenders interests reporters even absent having an obvious reason to focus on the issue.  Here is how the article starts and some additional excerpts:

In a year filled with arrests for sexual crimes against child victims, there is a familiar refrain heard each time one of these arrests is announced.  “Castrate him,” is shouted from all corners of society and social media.

Almost 80 alleged child molesters or kiddie porn collectors were arrested this year by a regional task force.  None of those offenders, however, will ever have to face castration-style penalties if convicted in New Jersey Superior Court.  That’s because New Jersey, unlike a handful of states across America, lacks a law that would require certain sex offenders to be neutered or semi-neutered.

Removing a sex offender’s testicles or doping him up on testosterone-reducing drugs may sound harsh, but that is the law of the land in certain jurisdictions outside the Garden State. Several states across America have laws requiring certain child molesters to take so-called “chemical castration” hormonal drugs that curtail sexual desire by sharply reducing testosterone levels, but New Jersey state lawmakers have not seriously considered that idea since the turn of the century. Surgical castration — a medical procedure that physically removes a male’s testicles — is an option for certain Megan’s Law offenders in California who prefer to voluntarily undergo a permanent, surgical alternative to hormonal chemical treatment....

New Jersey politicians have concerns about the sexual exploitation of children — Republican Gov. Chris Christie on July 21 signed a bill sponsored by Sen. Linda Greenstein (D-Mercer/Middlesex) to strengthen New Jersey’s child pornography laws and establish additional penalties against leaders of child porn networks — but a politician has not introduced a castration bill in the state Legislature in over 20 years.

A state senator in 1996 wanted New Jersey to force male defendants convicted twice of aggravated sexual assault on a young child to receive chemical castration as punishment. Inspired by California’s example, former State Sen. Joseph L. Bubba (R-Passaic) introduced Senate Bill No. 1568 in the chamber on Oct. 3, 1996. He signed on as the primary sponsor of the bill that, if enacted, would have required chemical castration of certain sex offenders.  The bill was introduced in the New Jersey Senate and referred to the Senate Judiciary Committee, where it died without being acted upon. 

Bubba’s political career then quickly unraveled when he lost a GOP primary in June 1997.  No other politician since Bubba has introduced a chemical castration bill in the New Jersey Legislature.

December 27, 2017 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)

Monday, December 25, 2017

Christmas season clemency headlines

President Trump only granted a single commutation this holiday season (details here), but the stories linked below document that a good number of state offenders in a good number of states were able to enjoy an extra merry Christmas thanks to Governors exercising their clemency powers:

Though I suspect this is not a comprehensive accounting of recent clemency actions by Governors, I still cannot help but notice that four of five Governors making holiday headlines with their clemency actions are Republicans.

December 25, 2017 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Sunday, December 24, 2017

Noting some notable SCOTUS petitions

Via How Appealing, I noticed these two notable stories about notable certiorari petitions on notable sentencing issues.  The first linked story concerns a petition in a capital case that has been widely discussed, but that I doubt will be granted; the second linked story concerns a petition in a non-capital juve case that raises an issue that has been festering in lower courts ever since the Supreme Court's Graham ruling in 2010:

December 24, 2017 in Assessing Graham and its aftermath, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Interesting (and sound?) outcome for juve who pled guilty to Slender Man stabbing

Serious crimes committed by young kids present a range of difficult sentencing issues, and a high-profile case of this variety was resolved on quite interesting terms last week.  This ABC News article, headlined "Teen who pleaded guilty in Slender Man stabbing case to remain in institutional care for 25 years, judge says," provide this account of the outcome:

A judge has sentenced one of the two Wisconsin teenagers accused of stabbing their friend in the woods to please the online fictional character Slender Man. Anissa Weier, 16, will now spend 25 years under a mental health institution’s supervision, with credit for her 1,301 days already spent in incarceration.  More than two years and six months of her sentence will be spent in a mental hospital before she can petition the court for release every six months.  If released, Weier will remain under institutional supervision until year 2039 and will be 37 years old.

“I just want everyone involved in this to know that I do hold myself accountable for this,” Weier told the court.  “I want everybody involved to know that I deeply regret everything that happened that day, and that I know that nothing I say is going to make this right, your honor, and nothing I say is going to fix what I broke.  I am just hoping that by holding myself somewhat accountable and making myself responsible for what I took part in that day, that I can be responsible and make sure this doesn’t happen again. I’m never going to let this happen again.”

Weier pleaded guilty earlier this year to attempted second-degree intentional homicide, as a party to a crime, with the use of a dangerous weapon as part of a plea deal.  A jury then found Weier not guilty by reason of mental disease or defect. Earlier this year the court also accepted a plea deal for co-defendant Morgan Geyser, who pleaded guilty to attempted first-degree intentional homicide.  In accordance with the plea deal, the court also found Geyser not guilty by reason of mental disease or defect despite her earlier guilty plea. Geyser’s sentencing is set for 2018.

In a victim impact statement, Stacie Leutner, mother of the stabbing survivor Payton Leutner, wrote that she and her family accept the plea deals but petitioned Judge Michael Bohren to “consider everything Payton and those closest to her have endured over the last three-and-a-half years” prior to the sentencing. In the victim impact statement, Stacie Leutner wrote that some of her daughter’s wounds from the attack still “tingle and ache and remind her of their presence every day.”...

“We accepted the plea deals for Morgan and Anissa for two reasons,” Stacie Leutner wrote. “First, because we believed it was the best thing to do to ensure Payton would not have to testify.  Traumatizing her further didn’t seem worth it. She has never talked about her attack so asking her to testify and relive her experience in front of a courtroom of strangers felt cruel and unnecessary. And second, because Payton felt placement in a mental health facility was the best disposition for both girls.”  Although she has accepted the plea deals, Stacie Leutner writes that her daughter “still fears for her safety.”

Weier and Geyser were arrested May 31, 2014, after the stabbing of Payton Leutner, whom they left in the woods in Waukesha, Wisconsin.  Leutner crawled to a nearby road and was helped by a passing bicyclist before she was hospitalized with life-threatening injuries but survived. Weier, Geyser and Payton Leutner were 12 years old at the time. Prosecutors have said that both girls were obsessed with the character Slender Man, who is often depicted in fan fiction stories online as a horror figure who stalks children.

In January, Weier's parents told “Good Morning America” that their daughter had expressed remorse. Her mother, Kristi Weier, said that according to police interview tapes of Geyser and her daughter, "They thoroughly believed that Slender Man was real and wanted to prove that he was real."

December 24, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Saturday, December 23, 2017

Making a space, yet again, for the airing of sentencing grievances this Festivus

Senator Rand Paul, as is his modern tradition, is using Twitter today to air Festivus grievances for all sorts.  My personal favorite is this one, which laments that an "octogenarian Mormon has better pot jokes than" he does.  But one of my grievances is that Senator Paul has not been quite so vocal an advocate for sentencing reforms in recent years, although he set the bar so high back in 2013 (even on Festivus) that I probably should not have expected him to keep at it so aggressively.  (Also, I wonder if having been the victim of a mysterious violent crime at the hand of his neighbor has impacted his thinking on some criminal justice issues.)

As I did here in this space a few years ago, I readily could rattle off a wide range of sentencing grievances against a wide range of persons.  But both Festivus and life are too short (and my family and friends too lovely and my stack of exams to grade too large) to justify spending too much time on grievances today.  But I always welcome, and benefit from, hearing others air their sentencing grievances; I welcome folks to do just that in the comments here.

December 23, 2017 in Who Sentences? | Permalink | Comments (4)

Friday, December 22, 2017

Reviewing the "hope and skepticism" engendered by Prez Trump's Rubashkin commutation

As reported in this prior post, Prez Trump made some minor modern clemency history by commuting the 27-year prison sentence of Sholom Rubashkin. This NBC News piece, headlined "Trump’s first commutation met with hope and skepticism," provides some context and commentary on this decision:

After President Donald Trump commuted the 27-year sentence of Sholom Rubashkin, a former kosher meatpacking plant CEO convicted of financial fraud, prison reform advocates on Thursday immediately perked up.

Trump, they said, did something not even President Barack Obama — a strong proponent for reform — had done: commuted a sentence during his first year in office. It wasn't until 2011 when Obama — three years into his first term — commuted the sentence of a federal prisoner, although he had pardoned nine people a year before.

"I'm extremely excited about this and am very optimistic that Trump is going to surprise people," said Amy Povah, the founder of CAN-DO, a nonprofit that advocates clemency for federal prisoners convicted of drug crimes.  "I communicate with a lot of prisoners, and I guarantee you they woke up to renewed hope."

Still, the number of commutations that could roll out under the Trump administration remains unknown.  With so much at stake, some fighting for criminal justice reform are asking whether the Rubashkin case is a precursor of things to come — or just a rare one-off.  Neither the White House nor the Justice Department immediately responded to requests for comment Thursday....

Rubashkin had the support of both Democrats and Republicans in Washington for his commutation.  Notably, a push for the Obama administration to take action fell on deaf ears. That was even as Obama moved swiftly later in his final term to begin commuting sentences.  Obama granted clemency to 1,715 federal prisoners — more than any other U.S. president in history. The vast majority had been sentenced under mandatory minimum laws that were enacted in the 1980s and ’90s to address the scourge of drugs....

Kevin Ring, the president of Families Against Mandatory Minimums, said he's concerned that the bar might be set too high for inmates seeking commutations — given that Rubashkin's case was high-profile enough to attract the interest of lawmakers, including House Minority Leader Nancy Pelosi, D-Calif., and Sen. Orrin Hatch, R-Utah.  He also questioned if certain types of prisoners — those not associated with white-collar crimes like Rubashkin — would benefit from clemency.  "Most are just families who don't wield any political influence," Ring said.....

In recent days, House Speaker Paul Ryan, R-Wis., has suggested Congress could tackle criminal justice reform in the next year.  That's important to Holly Harris, the executive director of the U.S. Justice Action Network, a lobbying group with advocates from the left and right.

She said a bipartisan bill in the House, the Prison Reform and Redemption Act, which would allow certain prisoners to serve the end of their sentences in halfway homes or home confinement, could be a catalyst in overhauling the system.  "Voters are very well educated and realize that one-size sentencing doesn't work," Harris said.  "The president of the United States has sent a really positive signal" with the release of Rubashkin.

While Trump ran as the "law and order" candidate, his lack of specifics on the criminal justice issue, apart from how it relates to immigration and national security, could end up going beyond what Obama started and result in sweeping change, Povah added.  "We know that he's an outsider, and I don't think he always necessarily cares what's conventional," she said.  "So I kind of hope that that can benefit people."

Recent related post:

December 22, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Noting executions uncompleted in 2017

This recent Houston Chronicle story, headlined "71 percent of scheduled executions not carried out in 2017," provides another perspective on US execution data for the year winding down. Here are some details:

Nearly three out of four death dates scheduled nationwide in 2017 were cancelled, after courts and governors intervened in 58 executions across the country.  That's one of the striking takeaways from a pair of end-of-year reports that offer sweeping overviews of capital punishment in 2017.

The broader trends offer no surprises: executions are down, but Texas is still the nation's killingest state. Nearly a third of the year's 23 executions took place in Texas....

"The process is better than it was a decade ago," said Robert Dunham of DPIC. "And there were some potentially wrongful executions that resulted in stays this year that would have resulted in executions a decade ago, but there are still significant and troubling failures."

Ohio and Texas both contributed significantly to the number of cancelled executions, Dunham said.  The Lone Star state saw nine prisoners' execution dates called off this year, many due to claims of false or misleading testimony or forensic evidence. San Antonio death row inmate Juan Castillo had three dates called off, including one delayed due to Hurricane Harvey and another cancelled in light of claims that his conviction was based on false testimony.

Prior recent related post:

December 22, 2017 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Wednesday, December 20, 2017

"President Trump Commutes Sentence of Sholom Rubashkin"!?!?!

The title of this post is the headline of this press release from the White House this evening.  Here are the details:

Today, President Donald J. Trump commuted the prison sentence of Sholom Rubashkin, an action encouraged by bipartisan leaders from across the political spectrum, from Nancy Pelosi to Orrin Hatch.

Mr. Rubashkin is a 57-year-old father of 10 children.  He previously ran the Iowa headquarters of a family business that was the country’s largest kosher meat-processing company.  In 2009, he was convicted of bank fraud and sentenced thereafter to 27 years in prison.  Mr. Rubashkin has now served more than 8 years of that sentence, which many have called excessive in light of its disparity with sentences imposed for similar crimes.

This action is not a Presidential pardon.  It does not vacate Mr. Rubashkin’s conviction, and it leaves in place a term of supervised release and a substantial restitution obligation, which were also part of Mr. Rubashkin’s sentence.

The President’s review of Mr. Rubashkin’s case and commutation decision were based on expressions of support from Members of Congress and a broad cross-section of the legal community. A bipartisan group of more than 100 former high-ranking and distinguished Department of Justice (DOJ) officials, prosecutors, judges, and legal scholars have expressed concerns about the evidentiary proceedings in Mr. Rubashkin’s case and the severity of his sentence.  Additionally, more than 30 current Members of Congress have written letters expressing support for review of Mr. Rubashkin’s case.

Because I have some personal history working on this case, I am not inclined to comment at great length beyond wanting to here praise President Trump for bringing some (non-political?) attention to his historic clemency powers through this grant. I also will link to some prior posts about this long-controversial case.

Some of many prior posts on the Rubashkin case:

December 20, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18)

Lamenting that the "law descends into a ghoulish inferno" as it contemplates the execution of a condemned Alabama murderer

LawProf Bernard Harcourt has this lengthy new op-ed in the New York Times under the headline "The Ghoulish Pursuit of Executing a Terminally Ill Inmate."  Both the substance and style of the commentary is compelling, and here are excerpts:

When judges schedule a lethal injection for a terminally ill prisoner whose struggle against lymphatic cancer and extensive medical history has left him without any easily accessible veins, our law descends into a ghoulish inferno.  It is a dreadful place where our most august jurists ruminate over catheter gauges and needle sizes, and ponder whether to slice deep into the groin or puncture internal jugular veins. History will not judge us favorably.

Last week, only a few hours after the stunning electoral victory of a Democratic candidate in the Alabama senatorial race, the justices of the Alabama Supreme Court signed a death warrant in the case of a 60-year-old man who has been languishing on death row for 30 years and fighting cranial cancer since 2014.

I had barely managed to absorb the news from Alabama’s election when I got the call at noon the next day. I recognized the Alabama area code but thought it was a reporter seeking a comment on the election.  Instead, a clerk from the Alabama Supreme Court dryly notified me that the justices had just set an execution date for my longtime client, Doyle Lee Hamm.

Mr. Hamm has been on Alabama’s death row since 1987, after being convicted of murdering a motel clerk, Patrick Cunningham, during a robbery.  For over three years now, he has been battling a fierce lymphatic and cranial cancer.  In February 2014, Mr. Hamm was found to have a large malignant tumor behind his left eye, filling the socket where the nerves from his brain went into his eye.  The doctors found B-cell lymphoma, a type of blood cancer of the lymph nodes, with a large mass protruding through the holes of his skull. They also discovered “numerous abnormal lymph nodes” in the abdomen, lungs and chest....

His medical treatment and history has left him without any usable peripheral veins.  Back in late September, an anesthesiologist from Columbia University Medical Center, Dr. Mark Heath, conducted an extensive physical examination to determine whether there were any veins suitable to deliver a lethal injection.  Dr. Heath found no usable veins. He also found that Mr. Doyle’s lymphatic cancer was likely to interfere with any attempt to utilize his central veins.  In Dr. Heath’s expert opinion, “the state is not equipped to achieve venous access in Mr. Hamm’s case.”

Yet, without even addressing the risks associated with attempting venous access for a man who will be 61 years old with no usable veins in his arms or legs, the justices of the Alabama Supreme Court set an execution date.  Some other judges — perhaps on the federal bench — now will have to deal with the bloody mess.  And a bloody mess it would be.

Those other judges will have to pore over medical reports and sonograms — as a federal judge did in the case of David Nelson, another Alabama death row inmate, in 2006, before he died of cancer — to decide whether they can insert an 18-gauge catheter into Mr. Hamm’s femoral vein in his groin, or scalpel him open to find a subclavian vein, or poke around his neck to find his internal jugular vein; whether the thickness of the catheter would preclude pricking a vein in his hand where a butterfly needle can no longer enter; and how to navigate around malignant lymph nodes while trying to achieve percutaneous access to his central veins....

This is justice today. Court opinions filled with ghastly details about how we prick and poke, and slice and cut, and poison other human beings. Opinions that, someday soon, we will look back on with embarrassment and horror.  Our justice is so engrossed with how we kill that it does not even stop to question the humanity of executing a frail, terminally ill prisoner.

In Doyle Hamm’s case, the lack of peripheral veins and lymphatic inflammations create the unconstitutional risk of a cruel and unnecessarily painful execution.  But the constitutional violation is only half of it.  It is justice itself that is in peril.

You may recall the machine that Franz Kafka brilliantly described in the haunting pages of “The Penal Colony.” That machine tattooed the penal sentence on the condemned man’s body, over hours and hours, before sucking the life out of him.  Our machinery of death today makes Kafka’s imaginative machine seem almost quaint.  Ours not only tattoos the condemned man’s body with needles and scalpels but also irremediably taints our justice for years to come.

Stories like these continue to reinforce my belief that states seriously interested in continuing with the death penalty ought to be seriously involved in exploring execution alternatives to lethal injection.

Meanwhile for more background on this particular lawyer's work to prevent his client from being executed, one should check out this New Yorker post  headlined, "The Decades-Long Defense of an Alabama Death-Row Prisoner Enters a Final Phase."

December 20, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (10)

"Three ways conservatives can lead criminal justice reform"

The title of this post is the title of this new commentary authored by Bob McClure, who is president and CEO of The James Madison Institute. Here are excerpts:

As head of a conservative think tank dedicated to principles of limited government and constitutional liberties, I find two things increasingly obvious: Our criminal justice system is in dire need of comprehensive reform, and that effort is being led not by bureaucrats in Washington but by policymakers and leaders in the states.  I look around the country and see great strides by states like Georgia, Oklahoma, Texas and Louisiana.  I see policymakers in my home state of Florida starting to join the movement, and I want to get excited at the possibilities for real culture-changing efforts.

The reforms these states have passed will ultimately accomplish two things: They will improve public safety and will save millions of taxpayer dollars.  Nevertheless, the road forward is anything but a clear or easy journey.

In our organization’s research of policy initiatives, a particular statistic disappoints me more than all others: our nation’s incarceration rate.  According to data from the International Center for Prison Studies, the United States currently incarcerates approximately 737 people per 100,000 citizens, counting both adults and juveniles.  This puts us right at the top of the list -- more than Iran, more than Russia, more than Rwanda.  We owe it to ourselves to ask why this is the case and how we can correct course....

Drug and non-violent offenses have created a revolving door in our jails and prisons, both at the state and federal levels.  It’s estimated that as many as one-fourth to one-third of our inmates are in prison for drug-related offenses.  Many are there because of oppressive sentencing rules that have eliminated the proper role of judges and created an incarceration-industrial complex trapping far too many families in a cycle of prison, poverty and despair.  Consequently, we have seen our prisons jam-packed with hundreds of thousands of offenders who have the potential to be rehabilitated but who end up sliding further down the path of crime and punishment....

There are three specific actions that can and should be championed at the state level to continue the progress conservatives have made in addressing criminal justice policy reform:

1.  Restore the role of judges in the system. For far too long, judicial discretion in sentencing has been eroded, the unfortunate result of well-intentioned conservatives over many years.

2.  Begin to address the distinction between those trafficking in narcotics as a criminal enterprise and those individuals selling smaller amounts of drugs to feed their addiction.  We want to lock up the bad guys feeding poison to our children, but we should be able to distinguish between those hardened criminals and addicts needing treatment.

3.  Reaffirm the need for substance abuse and mental health approaches in the justice system. The cost for drug crimes is a sliding scale over time.  As individuals reoffend and continue the cycle, the long-term costs of incarceration, safety net use, and lower employability far outweigh the short-term investment in treatment and rehabilitation.

This trio of actions is just a small piece of a very broad conservative policy reform agenda that states must champion.  As we seek to promote conservative principles and at the same time address the challenges impacting our society from scourges like addiction, it is my hope that states can be the shining example of how to lead the way forward.

December 20, 2017 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Brennan Center provides its latest encouraging accounting of crime in 2017

Ames Grawert and James Cullen at The Brennan Center has authored this new report titled "Crime in 2017: Updated Analysis." Here is how it gets started:

In September, the Brennan Center analyzed available crime data from the nation’s 30 largest cities, estimating that these cities would see a slight decline in all measures of crime in 2017.  The report, Crime in 2017: A Preliminary Analysis, concluded by noting that “these findings directly undercut any claim that the nation is experiencing a crime wave.”

That statement holds true in this analysis, which updates the September report with more recent data and finds that murder rates in major American cities are estimated to decline slightly through the end of 2017.  Murder rates in some cities remain above 2015 levels, however, demonstrating a need for evidence-based solutions to violent crime in these areas.

Updated Tables 1 and 2 show conclusions similar to the initial report, with slightly different percentages:

• The overall crime rate in the 30 largest cities in 2017 is estimated to decline slightly from the previous year, falling by 2.7 percent. If this trend holds, crime rates will remain near historic lows.

• The violent crime rate will also decrease slightly, by 1.1 percent, essentially remaining stable. Violent crime remains near the bottom of the nation’s 30-year downward trend.

• The 2017 murder rate in the 30 largest cities is estimated to decline by 5.6 percent. Large decreases this year in Chicago and Detroit, as well as small decreases in other cities, contributed to this decline.  The murder rate in Chicago — which increased significantly in 2015 and 2016 — is projected to decline by 11.9 percent in 2017.  It remains 62.4 percent above 2014 levels.  The murder rate in Detroit is estimated to fall by 9.8 percent. New York City’s murder rate will also decline again, to 3.3 killings per 100,000 people.

• Some cities are projected to see their murder rates rise, including Charlotte (54.6 percent) and Baltimore (11.3 percent). These increases suggest a need to better understand how and why murder is increasing in some cities.

Like all data, especially crime data, these numbers can and likely will get spun in any number of ways.  The start of this report reveals that some will point to these data to accuse AG Jeff Sessions and others of being fear-mongers when talking about a scary new crime trend.  But AG Sessions can (and I suspect will) say that any significant 2017 crime declines should be credited to criminal justice policy shifts he and others in the Trump Administration have made this year.  AG Sessions and others also can (and I suspect will) assert that 2017 crime rates are still significantly higher than the historic lows reached a few years ago and that we should aspire to have them be lower still.

These dynamics help account for why tough-on-crime thinking and messaging persist: when crime starts going up, claiming we need to get tougher resonates; when crime starts going down, claims about the benefits of toughness resonate.  Though many in both political parties and many members of the public are coming to embrace "smart on crime" ideas, nobody should lose sight of the (inevitable?) appeal of tough-on-crime mantras.

December 20, 2017 in National and State Crime Data, Who Sentences? | Permalink | Comments (1)