Sunday, February 26, 2017
SCOTUS considering cases involving sentencing and collateral consequences in coming days
This coming week the Supreme Court hears arguments in three cases that ought to be over interest to sentencing fans. Here are the basics of the cases in the order they are to be consider in the next two days, with descriptions and links to argument previews via SCOTUSblog:
Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites -- including Facebook, YouTube, and nytimes.com -- that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”
Issue: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act -- and therefore constitutes grounds for mandatory removal.
Issue: Whether the Supreme Court's decision in Pepper v. United States overruled United States v. Hatcher and related opinions from the U.S. Court of Appeals for the 8th Circuit to the extent that those opinions limit the district court's discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c) in determining the appropriate sentence for the felony serving as the basis for the Section 924(c) conviction.
For all sorts of reasons, Packingham seems likely to get the most attention of this bunch. But Dean could provide to be a sleeper post-Booker case for federal sentencing fans.
Saturday, February 25, 2017
"Conservative Criminal Justice Advocates Try To Change The System — Even In The Trump Era"
The title of this post is the title of this new BuzzFeed News piece which follows up with this subheadline: "Conservative groups pushing for changes to the criminal justice system flooded this year’s conservative confab known as CPAC hoping to convince more people on the right to embrace their cause." Here are excerpts:
Groups, like the American Conservative Union Foundation, an arm of the ACU, which hosts CPAC, hope to convince more people on the political right to embrace the cause as a conservative one by leveraging their recent successes at the state level and reminding lawmakers that it’s an issue with support from multiple conservative groups.
“I do feel that letting politicians know that we are large in numbers and we do support this, and we are present at all of these events, we’re not going to go away; it’s something that’s important and it’s […] a part of the conservative movement,” says Christina Delgado, a spokesperson for the conservative group FreedomWorks....
But some, especially members of the Republican conference in Congress, have expressed concerns over whether reforms — which aim to reduce mass incarceration, rising prison costs, and recidivism rates — represent a soft-on-crime approach to the criminal justice system that could jeopardize public safety. “You do have people that have a bit more of a reactionary tough-on-crime approach that have come up to the booth and talked to us about it,” says Derek Cohen, deputy director of Texas-based Right on Crime, which is also attending CPAC. “But once you start talking to them about, you know, the practicalities of running a criminal justice system, they actually get it very quickly.”...
Delgado says the issue came up in questions during a Thursday event hosted by FreedomWorks that featured Kentucky Gov. Matt Bevin, a Republican who recently signed an order to try to help ex-offenders land jobs after their sentence is up. Delgado says Bevin noted “it’s not about going softer on crime, it’s about just making sure that we’re addressing the more important aspects of crime, and that is the actual danger, the actual criminals, the actual problem.”
Cohen says different types of conservatives — social, fiscal, libertarian — “all have their own reasons for actually being interested in the reform campaign.” For many libertarians, it’s issues such as civil asset forfeiture that make the case for criminal justice reform. For fiscal conservatives, it’s about cutting rising corrections costs.”...
But even with progress happening in Republican-leaning states, it remains to be seen where exactly the new Trump administration will fall on specific federal criminal justice issues. Trump said he wanted to “bring back law and order” during the election campaign, but has not detailed what that will mean.
Though not all are convinced Trump will be swayed by the arguments for criminal justice reform — his attorney general, Jeff Sessions, was a vocal opponent during his time in the Senate — pro-reform groups are hoping state successes appeal to Trump. “As President Trump considers how best to reduce crime and restore public safety, we hope that he can learn from reform champions in states like Oklahoma, Louisiana and Kentucky to chart a new path for America,” Steve Hawkins, president of the Coalition for Public Safety — another CPAC attendee — said in a statement to BuzzFeed News.
Cohen says Right on Crime, which has attended the last five CPACs, has met with members of Congress recently, and that “there seems to be renewed energy” in passing reform legislation. Judiciary Committee members Sens. Dick Durbin and Chuck Grassley have said they plan on re-introducing the bill in the current sessions of Congress. “Now, what shape that reform’s going to be in, I think is a bit premature to say,” Cohen said, “but there definitely is the same appetite if not a greater one.”
Recent prior related post:
February 25, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)
Friday, February 24, 2017
Interesting commentary on Prez Obama's Harvard Law Review article and his criminal justice legacy
As noted in this prior post, last month the Harvard Law Review published this lengthy article authored by Barack Obama titled "The President’s Role in Advancing Criminal Justice Reform." Today I saw at the interesting new site Carceral Complex this pair of follow-up commentaries:
President Obama’s Criminal Justice Legacy: What Went Wrong by Dustin Palmer
The themes of the potent and extended first piece by Dustin Palmer are summarized toward its conclusion:
Law reviews are an excellent place for professorial musings, but the weight of the law (and its failures) is borne by the people. After combing through the legalese, it is important to evaluate actions, not words. Obama’s rhetoric fits comfortably within the narrative of what supporters might have hoped would happen when a young former community organizer and constitutional law professor was elected president. The article itself, and its length, surely attempts to function as a “final word” on his justice reform efforts. Anecdotes about taking clemency participants to lunch or visiting a federal prison paint images of the compassionate, hopeful campaigner.
His actual record – on fundamental, defining aspects of the justice system – is much to the contrary. Failures to reform the War on Drugs, immigration abuse, police militarization, civil asset forfeiture, and the surveillance state left the criminal justice system not “smarter, fairer, and more effective” but undeniably worse. They are a national tragedy, and this failure will define his legacy.
The second shorter piece by Brett Diehl is somewhat less harsh, but not really less damning:
One is left with a sense that the HLR article may represent more of an attempt to construct an individual legacy than to empower actual reform. It was clear by January 2017 that many of the gains in rethinking criminal justice policy of the previous eight years would be rolled back under Trump and his Attorney General Jefferson Beauregard Sessions. Yet Obama’s piece ends, like most of his speeches, with an optimistic declaration that, “I remain hopeful that together, we are moving in the right direction.” Ever an optimist, not once does he mention the incoming administration.
Yes, Obama’s administration made important gains in specific geographic and policy areas. But overall, it failed to shift the paradigm around criminal justice in our nation. In writing to the audience of the HLR, this failure was perpetuated. While it may reach the occasional lay reader, the piece’s formatting, length, and density surely scared off many potential readers (myself included). In this, Obama’s presidency proves to be more words over actions: rhetorical power, fit for us to remember fondly, without bold progress.
Thursday, February 23, 2017
AG Sessions, reversing recent decision made during Obama Administration, signals DOJ return to reliance on private prisons
As reported in this Bloomberg News piece, "U.S. Attorney General Jeff Sessions ordered the Federal Bureau of Prisons to continue using private prisons, rescinding an order by former President Barack Obama’s administration." Here is more context:
Sessions signed the order on Feb. 21, according to a Justice Department statement. The Justice Department last year halted a decade-long experiment of hiring private companies to help manage the soaring prison population. "The memorandum changed long-standing policy and practice, and impaired the Bureau’s ability to meet the future needs of the federal correctional system," Sessions wrote in a new memo released Thursday but dated Feb. 21. "I direct the Bureau to return to its previous approach."
The move comes as President Donald Trump’s administration has pledged to crack down on illegal immigration and crime. The majority of inmates held at private facilities used by the Justice Department are sentenced “criminal aliens,” according to the Bureau of Prisons. That largely encompasses undocumented immigrants convicted of drug offenses or entering the U.S. without proper documentation.
For a variety of reasons, I do not find this development all that surprising or really all that big of a deal. But I know a lot of reform advocates on the left are especially troubled by the private prison industry, and thus I suspect this move will be another talking point for those concerned about the direction of the federal criminal justice system under the new Administration.
Florida legislators talk of repealing mandatory minimums for nonviolent offenses
As reported in this local article, headlined "In major Tallahassee reversal, mandatory sentences called a waste of taxpayer money," there is a notable movement to repeal some mandatory minimum sentences in the Sunshine State. Here are the details:
Cynthia Powell is serving a 25-year sentence for selling 35 pills for $300 in 2002. Her incarceration at Homestead Correctional Institution costs taxpayers an average of $18,064 per year — or $451,600 by the time she is released in 2023.
The Florida Senate Criminal Justice Committee concluded Tuesday that’s money poorly spent. It voted unanimously for SB 290, which would end minimum mandatory sentences for nonviolent offenses like Powell’s. The measure represents a major shift from the tough-on-crime bills of the last two decades that filled prisons and created what both liberals and conservatives now believe has been a subclass of lifers in jail and a waste of tax money. The “prison diversion bill” would save the state $131 million in avoided costs and put 1,001 fewer people in jail, said Sen. Daryl Rouson, D-St. Petersburg, the bill’s sponsor.
The measure would allow judges to depart from the 118 minimum mandatory sentences in Florida law but excludes drug traffickers. It restores the Florida Sentencing Commission, which existed from 1982 to 1997, but limits its scope to determining the severity ranking that adds points to an offender’s record based on certain offenses. Anyone who commits a violence offense, is not eligible for the court’s leniency.
Reforming Florida’s legacy of harsh sentencing is one of several reforms being pushed by a coalition of liberal and conservative advocates that were passed unanimously by the Senate committee on Tuesday. “We are in an interesting juncture in our society and the Legislature, where Democrats and Republicans in both chambers agree that it’s really time to look at our criminal justice system and start to make some reforms,” said Sen. Randolph Bracy, D-Orlando, chairman of the committee....
Greg Newburn, director of Families Against Mandatory Minimums, a conservative group that supports ending mandatory minimum sentences for nonviolent crimes, said “dozens of states have already made the decision to move in this area.” They include Georgia, Oklahoma and North Carolina. “The results are uniform,” he said. “We get lower crime. We get smaller prison populations. They’ve closed prisons and saved tens of millions of dollars.”
If Powell, the Homestead inmate, had sold two fewer pills in 2002, she would have gotten a 15-year sentence, he said. If she sold them today, it would be a seven-year sentence. Instead, she won’t be released until 2023. “There are many other people in similar situations who simply don’t need to be there,” he said. “It’s a waste of money. We receive no public safety benefit whatsoever.”
His organization supports full repeal of mandatory minimum drug laws — as states such as Michigan, New York and Delaware have done — but he considers the piecemeal progress proposed by the Senate “a good reform.”
Jim DeBeaugrine of the Center for Advanced Justice, a sentencing reform advocacy group, warned the committee that giving drug offenders shorter sentences will only keep them out of prison if they receive treatment for substance abuse and mental health issues. “If you try to do it on the cheap, the results of this outcome are compromised,” he said. “The only way you will ever end the issue of mass incarceration is you’ve got to stop putting so many people in prison.”
Wednesday, February 22, 2017
Buck's notable dis of state finality interests in "flawed" capital sentence
Though there are a number of interesting procedural and substantive elements to the Supreme Court's ruling today in Buck v. Davis reversing a Texas death sentence (basics here), I am especially intrigued by the short shrift given by the Chief Justice's majority opinion to the state's claimed interest in finality. (Regular readers know I can get fixated on finality and have written at length about why I think convictions and sentences ought to be treated differently for finality purposes.) Here is all that Chief Justice Roberts writing for the Court had to say about finality (with my emphasis added):
In opposition, the State reminds us of the importance of preserving the finality of judgments. Brief for Respondent 34. But the “whole purpose” of Rule 60(b) “is to make an exception to finality.” Gonzalez, 545 U.S., at 529. And in this case, the State’s interest in finality deserves little weight. When Texas recognized that the infusion of race into proceedings similar to Saldano’s warranted confession of error, it effectively acknowledged that the people of Texas lack an interest in enforcing a capital sentence obtained on so flawed a basis. In concluding that the value of finality does not demand that we leave the District Court’s judgment in place, we do no more than acknowledge what Texas itself recognized 17 years ago.
In his dissent, Justice Thomas says the majority opinion "belittles Texas’ claimed interest in finality," and I think that is a fair characterization of the passage above. I am also inclined to turn this belittling into a broader and enduring "Buck finality principle": a state has little or no valid interest in preserving the finality of a (capital) sentence that is obviously "flawed" in some significant way. Though I do not expect this Buck dis of state finality interests to significantly impact finality jurisprudence, I do expect to cite this Buck the next time I need to respond to any claims that flawed sentences must be preserved in the name of finality.
"The Constitutional Law of Incarceration, Reconfigured"
The title of this post is the title of this notable new paper authored by Margo Schlanger now available via SSRN. Here is the abstract:
As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention. The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for tragedies behind bars — allowing, even encouraging, them to avoid constitutional accountability. And lower courts compounded the error by importing that reading into Due Process doctrine as well.
In 2015, in Kingsley v. Hendrickson, a jail use of force case, the Court relied on 1970s precedent, not subsequent caselaw that had placed undue emphasis on the subjective culpability of prison and jail officials as the crucial source of constitutional concern. The Kingsley Court returned to a more appropriate objective analysis. In finding for the plaintiff, the Supreme Court unsettled the law far past Kingsley’s direct factual setting of pretrial detention, expressly inviting post-conviction challenges to restrictive — and incoherent — Eighth Amendment caselaw. The Court rejected not only the defendants’ position, but the logic that underlies 25 years of pro-government outcomes in prisoners’ rights cases.
But commentary and developing caselaw since Kingsley has not fully recognized its implications. I argue that both doctrinal logic and justice dictate that constitutional litigation should center on the experience of incarcerated prisoners, rather than the culpability of their keepers. The takeaway of my analysis is that the Constitution is best read to impose governmental liability for harm caused to prisoners — whether pretrial or post-conviction — by unreasonably dangerous conditions of confinement and unjustified uses of force. In this era of mass incarceration, our jails and prisons should not be shielded from accountability by legal standards that lack both doctrinal and normative warrant.
Supreme Court, voting 6-2, reverses Texas death sentence reached after defense attorney introduced expert who linked race and violence
The Supreme Court handed down three opinion this morning, and the big one for sentencing fans is the capital case from Texas, Buck v. Davis, No. 15-8049 (Feb. 22, 2017) (available here). The Chief Justice wrote the opinion for the Court, and here is that opinion's opening and some of its substantive analysis on the case's highest-profile issue:
A Texas jury convicted petitioner Duane Buck of capital murder. Under state law, the jury could impose a death sentence only if it found that Buck was likely to commit acts of violence in the future. Buck’s attorney called a psychologist to offer his opinion on that issue. The psychologist testified that Buck probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person’s propensity for violence was his race, and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death.
Buck contends that his attorney’s introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. This claim has never been heard on the merits in any court, because the attorney who represented Buck in his first state postconviction proceeding failed to raise it....
Given that the jury had to make a finding of future dangerousness before it could impose a death sentence, Dr. Quijano’s report said, in effect, that the color of Buck’s skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race. See Zant v. Stephens, 462 U. S. 862, 885 (1983) (identifying race among factors that are “constitutionally impermissible or totally irrelevant to the sentencing process”). No competent defense attorney would introduce such evidence about his own client....
Dr. Quijano’s testimony appealed to a powerful racial stereotype—that of black men as “violence prone.” Turner v. Murray, 476 U. S. 28, 35 (1986) (plurality opinion). In combination with the substance of the jury’s inquiry, this created something of a perfect storm. Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race....
[W]e cannot accept the District Court’s conclusion that “the introduction of any mention of race” during the penalty phase was “de minimis.” 2014 WL 11310152, at *5. There were only “two references to race in Dr. Quijano’s testimony”—one during direct examination, the other on cross. Ibid. But when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.
Justice Thomas authored a dissent in Buck, joined by Justice Alito, which gets started this way:
Having settled on a desired outcome, the Court bulldozes procedural obstacles and misapplies settled law to justify it. But the majority’s focus on providing relief to petitioner in this particular case has at least one upside: Today’s decision has few ramifications, if any, beyond the highly unusual facts presented here. The majority leaves entirely undisturbed the black-letter principles of collateral review, ineffective assistance of counsel, and Rule 60(b)(6) law that govern day-to-day operations in federal courts.
Tuesday, February 21, 2017
A few notable criminal justice panels at CPAC
It is around that time of year for the annual Conservative Political Action Conference (CPAC), and the misbehavior of one conservative is generating all the pre-CPAC buzz. But, as has been the story for the last few years, sentencing fans should be intrigued by some of the criminal justice reform programming appearing on the CPAC 2017 agenda. Specifically, I found notable these two panels scheduled for Friday this week:
Prosecutors Gone Wild
Moderator: Pat Nolan, ACU Foundation Center for Criminal Justice Reform
David A. Keene, The Washington Times
Sidney Powell, Former U.S. Attorney
Kevin Ring, Families Against Mandatory Minimums
Conservatives Leading the Way on Criminal Justice Reform in State Capitals
Moderator: David Safavian, ACU Foundation Center for Criminal Justice Reform
State Rep. Julie Emerson (LA-39)
Marc Levin, Right on Crime, Texas Public Policy Foundation
Pat Nolan, ACU Foundation Center for Criminal Justice Reform
February 21, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)
Reversing course, Florida Supreme Court allows capital prosecutions to proceed while state legislature still working through Hurst fix
As explained in this local article, on Monday the Florida Supreme Court issued a new ruling about the administration of the death penalty, and issue which has been a big mess for the state since the Supreme Court's Hurst ruling last year. Here are the basics:
In what was described as an “about-face” after a previous ruling, the Florida Supreme Court on Monday ordered that death penalty cases can proceed, even with an unconstitutional law still on the books. The order came as the Legislature prepares to address a pair of Florida high court rulings last fall that struck down the state’s most recent death-penalty sentencing scheme as unconstitutional and effectively halted capital cases.
In a pair of October opinions, the state court ruled that a new law — passed in response to a U.S. Supreme Court decision in a case known as Hurst v. Florida — was unconstitutional because it required only 10 jurors to recommend death “as opposed to the constitutionally required unanimous, 12-member jury.” The October majority opinion in the case of Larry Darnell Perry also found that the new law “cannot be applied to pending prosecutions.”
But in a reversal of that decision Monday, the majority ruled that capital cases can move forward, even before lawmakers fix the statute. Attorney General Pam Bondi hailed the ruling, saying in a statement it “provides our courts with the clarification needed to proceed with murder cases in which the death penalty is sought.”...
The majority on Monday decided that the new law can be applied to pending prosecutions — and is constitutional — “if 12 jurors unanimously determine that a defendant should be sentenced to death.”
But in her dissent, Justice Barbara Pariente argued that what could be a “temporary” fix, until lawmakers address the issue, could lead to more litigation. “Such concerns are precisely why it is for the Legislature, not this (Supreme) Court, to enact legislation curing the act’s fatal 10-2 provisions, assuming the Legislature intends for the death penalty to continue to be imposed in Florida,” Pariente wrote in a dissent joined by Justice Peggy Quince.
But [House Judiciary Chairman Chris] Sprowls, R-Palm Harbor, said the decision “finally” tells lower courts they can proceed with capital cases. “That is what I think people within the criminal justice system would expect. What they did not expect is to have a paralysis created and that’s what the court had done. Today they have alleviated that paralysis by at least allowing cases to proceed,” he said.
Defense lawyers, however, took a harsher view. “As a society, we rely upon court precedent to determine how to interpret and apply the laws. The (Supreme) Court’s about-face within these opinions is confounding. They also seem incongruent with the court’s unanimous plea, in (a case known as) Steele, to the Legislature to fix what the court said it couldn’t,” 10th Judicial Circuit Assistant Public Defender Pete Mills, who also serves as chairman of the Florida Public Defenders Association Death Penalty Steering Committee, told The News Service. Mills was referring to a 2005 opinion in State vs. Steele in which the court urged the Legislature to require a unanimous jury vote, rather than the previous simple majority vote, in capital-case proceedings.
While Monday’s opinion may have resolved questions about how the courts can proceed, for now, it likely won’t slow down the Legislature’s rush to address the issue early in the session that begins March 7. “We still want to move it rapidly, get it up and out to make sure there’s no question that this is what the statute says and that we have a working death penalty scheme in the state of Florida,” Sprowls said.
Sprowls’ committee is slated to consider a measure (HB 527) Tuesday that would do away with the 10-2 jury recommendations and instead require unanimity for death sentences to be imposed. A Senate panel will give a final vetting to a similar proposal the following day. The issue deals only with the sentencing phase of death-penalty cases, after jurors unanimously find defendants guilty of crimes. House Speaker Richard Corcoran, R-Land O’ Lakes, and Senate President Joe Negron, R-Stuart, told The News Service — before the court’s decision Monday — they wanted to send a death penalty measure requiring unanimous jury recommendations to Gov. Rick Scott by the end of the session’s first week.
“My position on it is that you have about 200 death penalty cases that are in abeyance right now, because of the Supreme Court’s ruling, and I can’t think of anything more important to the family of victims and also to a person charged with a capital felony that their cases proceed justly and with due process through the criminal justice system,” Negron said Wednesday. “To me, it’s our responsibility as legislators to make sure that the law is appropriately enforced. That would be a top priority.” The cases “in abeyance” referred to more than half of Florida’s Death Row inmates who are eligible for new sentencing hearings under a separate state court ruling addressing retroactivity of the Hurst decision, which was predicated on a 2002 U.S. Supreme Court ruling in a case known as Ring v. Arizona.
The full Florida Supreme Court ruling discussed here is available at this link.
Justice Sotomayor (joined by Justice Breyer) authors lengthy dissent to denial of cert in Alabama lethal injection protocol challenge
This morning, the US Supreme Court got back to work through the issuance of this lengthy order list. The one cert grant was involves a federal criminal case, Class v. US, concerning whether a defendant who pleads guilty can still challenge the constitutionality his statute of conviction (SCOTUSblog case page here). But the part of the order list likely to get the most attention is this lengthy dissent from the denial of certiorari authored by Justice Sotomayor in a Alabama capital case concern lethal injection protocols. Here is the start, heart and end of the extended opinion (which Justice Breyer joined in full):
Nearly two years ago in Glossip v. Gross, 576 U. S. ___ (2015), the Court issued a macabre challenge. In order to successfully attack a State’s method of execution as cruel and unusual under the Eighth Amendment, a condemned prisoner must not only prove that the State’s chosen method risks severe pain, but must also propose a “known and available” alternative method for his own execution. Id., at ___, ___ (slip op., at 13, 15).
Petitioner Thomas Arthur, a prisoner on Alabama’s death row, has met this challenge. He has amassed significant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony, and he has proposed an alternative — death by firing squad. The Court of Appeals, without considering any of the evidence regarding the risk posed by the current protocol, denied Arthur’s claim because Alabama law does not expressly permit execution by firing squad, and so it cannot be a “known and available” alternative under Glossip. Because this decision permits States to immunize their methods of execution — no matter how cruel or how unusual — from judicial review and thus permits state law to subvert the Federal Constitution, I would grant certiorari and reverse. I dissent from my colleagues’ decision not to do so....
The decision below permits a State, by statute, to bar a death-row inmate from vindicating a right guaranteed by the Eighth Amendment. Under this view, even if a prisoner can prove that the State plans to kill him in an intolerably cruel manner, and even if he can prove that there is a feasible alternative, all a State has to do to execute him through an unconstitutional method is to pass a statute declining to authorize any alternative method. This cannot be right....
The decision below is all the more troubling because it would put an end to an ongoing national conversation — between the legislatures and the courts — around the methods of execution the Constitution tolerates. The meaning of the Eighth Amendment’s prohibition on cruel and unusual punishments “is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791” but instead derives from “‘the evolving standards of decency that mark the progress of a maturing society.’” Kennedy v. Louisiana, 554 U. S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)). Evolving standards have yielded a familiar cycle: States develop a method of execution, which is generally accepted for a time. Science then reveals that — unknown to the previous generation — the States’ chosen method of execution causes unconstitutional levels of suffering. A new method of execution is devised, and the dialogue continues. The Eighth Amendment requires this conversation. States should not be permitted to silence it by statute....
Twice in recent years, this Court has observed that it “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Baze, 553 U. S., at 48 (plurality opinion); Glossip, 576 U. S., at ___ (slip op., at 3) (same). In Glossip, the majority opinion remarked that the Court “did not retreat” from this nonintervention strategy even after Louisiana strapped a 17-year-old boy to its electric chair and, having failed to kill him the first time, argued for a second try — which this Court permitted. Id., at ___– ___ (slip op., at 3–4). We should not be proud of this history. Nor should we rely on it to excuse our current inaction.
Monday, February 20, 2017
Awakening to a sleepy sentencing debate: do tired federal judges sentence more harshly?
I just came across this pair of notable papers exploring empirically whether and how less sleep might mean more punishment from federal judges:
"Sleepy Punishers Are Harsh Punishers: Daylight Saving Time and Legal Sentences" by Kyoungmin Cho, Christopher Barnes, and Cristiano Guanara
Abstract: The degree of punishment assigned to criminals is of pivotal importance for the maintenance of social order and cooperation. Nonetheless, the amount of punishment assigned to transgressors can be affected by factors other than the content of the transgressions. We propose that sleep deprivation in judges increases the severity of their sentences. We took advantage of the natural quasi-manipulation of sleep deprivation during the shift to daylight saving time in the spring and analyzed archival data from judicial punishment handed out in the U.S. federal courts. The results supported our hypothesis: Judges doled out longer sentences when they were sleep deprived.
"Are Sleepy Punishers Really Harsh Punishers?: Comment" by Holger Spamann
Abstract: This comment points out four severe reservations regarding Cho et al.’s (PS 2017) finding that U.S. federal judges punish more harshly on “sleepy Mondays,” the Mondays after the start of Daylights Savings Time. First, Cho et al.'s finding pertains to only one of at least two dimensions of harshness, and the opposite result obtains in the second dimension. Second, even within the first dimension, Cho et al.'s result is statistically significant only because of a variable transformation and sample restrictions that are neither transparent in the article nor theoretically sound. Third, reanalysis of the data with superior methods reveals no significant “sleepy Monday” effect in the years 1992- 2003. Fourth, sentences were on average shorter on “sleepy Mondays” out of sample, namely in 2004-2016.
Sunday, February 19, 2017
Front-line advocate's response to interview with former White House Counsel Neil Eggleston about Prez Obama clemency efforts
Regular readers know I am always eager to provide a forum for responses and respectful criticisms of sentencing-related activities and comments by public officials. In that vein, I am pleased to provide here the sharp commentary sent my way by Beth Curtis, a prisoner advocate who runs the website Life for Pot. Beth sent an extended commentary my way under the heading "Responding to: The Man Who Ran Obama’s Clemency Machine"; she was inspired to write by the recent Marshall Project interview with former White House Counsel Neil Eggleston about Prez Obama's clemency efforts (noted here).
Beth's full commentary is available for download below, and here is a snippet to highlight why the full piece is worthy of time and attention:
For the first five years of Obama’s presidency the federal prison population grew by 13,000 incarcerated people. In 2013, the population was 214,149, the highest incarceration rate in history.
Criminal justice organizations, prisoner advocacy groups, criminal defense attorneys, law school clinics, prisoner’s families and various other lobbying groups started the drum beat for sentencing reform and an initiative of Presidential Clemency. Finally in 2013 Eric Holder announced that there would be a clemency initiative that could mean 10,000 or more acts of mercy for incarcerated people who would not be a threat if they were released.
Those of us with incarcerated loved ones who had sentences that would assure that they would die behind bars now had a reason for hope. We felt an overwhelming sense of gratitude to the President and all who were involved in the decision and the process that would lead to our loved ones freedom. We could hope to have our family member in our daily lives again. The hope was an ache, but we knew this President had compassion. It was not to be.
The lack of commitment became apparent almost immediately. I have the web site Life for Pot and the nonviolent marijuana offenders that I advocate for waited patiently for their evaluation by cp-14. Surprisingly some were rejected, and others accepted to the project and were told they would be assigned an attorney. Those fortunate inmates who were assigned an attorney would sometimes just receive a notification that they were represented and hear nothing more. We urged them to submit their own and wait.
This is not just a passing interest for me. I have a 69 year old brother, John Knock, who has two life sentences for a nonviolent marijuana conspiracy. He has been incarcerated for 20 years and never had an infraction. His prison resume is impeccable. He is a first time offender. On January 18, his clemency petition was denied by President Obama.
These are the numbers that tell you about the mercy and compassion of the Clemency Initiative. The promise was 10,000 or more. 1,715 Commutations granted – we could only find 39 for nonviolent marijuana only offenders. The rest were denied or left pending.
Over 18,000 petitions for commutation were denied. Over 4,000 petitions for commutation we closed without action. Over 8,000 petitions for commutation were left pending in the Pardon Attorney’s office for the next administration.
I must reject Mr. Eggleston’s assertion that he had better information and insight than the attorneys, advocates, or families about who was a good candidate for release. He asserts that he and President Obama looked over all the applicants and rejected all but 1,715.
Apparently Mr. Eggleston and President Obama based their denials on secret information. That implies that all the nonviolent marijuana offenders that I know who were denied should remain in prison till they die because Mr. Eggleston and President Obama have special information unknown to anyone else? What are the secrets that gave them confidence to make this Sophie’s Choice? They missed the point of Clemency. It is not a legal process but a Constitutional Power given to the President to be compassionate and merciful. In this endeavor they failed miserably.
These assertions made by Mr. Eggleston have tainted the character and behavior of all they left behind. I can only believe this was done in order to in order to burnish the administrations legacy of compassion at the expense of those they left behind without hope.
There is one secret that most of us know that the White House and the Pardon Attorney did not address. That secret is that most nonviolent offenders who receive sentences of life without parole were charged with conspiracy and went to trial. A conspiracy charge does not require definitive evidence, but only the testimony of those testifying for a plea or for part of the forfeiture. If you exercise your sixth amendment right to trial you receive the trial penalty. This charge allows the Prosecutor to tell the story.
In the spring of 2016 at a White House Briefing, it was obvious to many of us that the promise of clemency was waning and The Administration was pivoting to reentry as the major emphasis for time and money.
The White House would not pay attention to any effort to expedite the clemency project by granting clemency to categories of inmates. Many individuals and groups implored them to take this approach so that they would not fail the thousands who placed their trust in their concept of mercy. The White House and Justice Department did not seem to even understand the concept as it had been used in the past. Heals were dug in, and fates were sealed.
UPDATE: For those unable to get download to work (which may be my fault, as I am working from the road), here is a link to Beth's site with her full commentary.
Prior related post:
"I sentenced criminals to hundreds more years than I wanted to. I had no choice."
The title of this post is the headline of this recent Washington Post commentary authored by former federal judge Shira Scheindlin. Here are excerpts from a lengthy piece that merits a full read:
In my nearly 22 years as a U.S. district judge in New York, I sentenced roughly 1,000 defendants. Thankfully, not all were subject to “mandatory minimum” sentences — in which Congress has imposed a required statutory punishment for a particular crime. But many were; 145 federal crimes still require a minimum sentence, including distribution of narcotics, immigration violations and identity theft, just to name a few.
Every first-year law student learns that sentencing has four goals: retribution, incapacitation, deterrence and rehabilitation. Yet thanks mostly to the Sentencing Reform Act of 1984 and the Anti-Drug Abuse Act of 1986, I was often prohibited from assessing a defendant’s history, personal characteristics or role in the offense. In sentencing, where judgment should matter most, I could not exercise my judgment. I felt more like a computer than a judge. And I was not alone. Over the years, many of my colleagues on the federal bench felt the same frustrations.
This problem upset me as soon as I was appointed in 1994. Mandatory minimums were almost always excessive, and they made me feel unethical, even dirty. After seven years, my patience had run thin and my conscience was troubled; I began to consider resigning. I sought the advice of a revered mentor, a federal judge with more than 30 years of experience. He pointed out that quitting would serve nobody, as another judge would be required to impose identical sentences anyway. He also said that if I left, the bench would lose a judge who could advocate for criminal justice reform through her decisions. So I remained. But to this day, I am pained by many of the sentences I was required by law to impose. While I bore the title “Honorable Judge,” I felt less than honorable and more like a complicit tool of an unjust system....
Judicial discretion in sentencing matters. Many judges, including me, routinely sentence below the guidelines, particularly for first-time, nonviolent drug offenders. Indeed, in 2015 only 36.5 percent of all drug offenses nationwide resulted in a guideline-compliant sentences. Between 2005 and May 2016, when I retired from the bench, I sentenced more than 200 defendants convicted of narcotics offenses and imposed a lighter-than-advised sentence more than 80 percent of the time. Had I sentenced at the top of the guidelines’ range, these defendants would have served more than a millennium of additional prison time.
After I left the bench, Peter Dubrowski — my last law clerk — and I decided that we would review the sentencing protocols for each of those 200 defendants. As I expected, we found strikingly similar storylines. The overwhelming majority of the defendants were indigent. Seventy-two percent had children to support, and many of the defendants were under the age of 25 — barely adults themselves. More than half had not graduated from high school, most had not obtained a GED, and barely 5 percent had attended college. A majority battled alcohol addiction, drug addiction or both, and had begun abusing substances by age 14. Most were unemployed. Most came from single-parent homes, and most had at least one parent who was, or had been, incarcerated....
Does the length of the sentence deter people outside the courtroom from committing crimes? This is a popular idea in our country. Over time, I came to believe it is fiction. If this effect was real, my fellow judges and I would have seen narcotics arrests and prosecutions decline over the years. They never did. No young man on the street was ever deterred from criminal activity by the sentence given to a buddy. “Contrary to deterrence ideology and ‘get tough’ rhetoric,” says a report from the Sentencing Project, a nonprofit that studies criminal punishment, the evidence “fails to support” deterrence.
Saturday, February 18, 2017
BYOD in Az: spotlighting Arizona's (cheeky?) drug acquisition provision in its latest execution protocol
This AP article reports on a notable an unusual provision in Arizona's new execution protocol. The article is headlined "Arizona to death-row inmates: Bring your own execution drugs," and here are details:
The recent revelation that condemned prisoners in Arizona can now provide the lethal drugs to be used in their executions has received attention around the world and raised questions about the state's rules for the death penalty.
The novel policy has drawn sneers from defense attorneys who were puzzled as to why the state would think that they would assist in killing their clients. It has inspired wisecracks about Arizona's penchant for taking on envelope-pushing criminal justice policies and left some readers on social media asking whether the bring-your-own-drugs policy was actually the product of a news parody website.
Criminal defense lawyers and death penalty experts say they have never heard of a state suggesting that condemned inmates can line up drugs to be used in their executions. However unlikely it is that any of Arizona's 119 death-row inmates will take up the offer, the change is a reflection of the difficulties that Arizona, like other states, faces in finding execution drugs now that European pharmaceutical companies have blocked the use of their products for lethal injections.
Executions in Arizona have been on hold since the 2014 death of convicted killer Joseph Rudolph Wood, who was given 15 doses of the sedative midazolam and a painkiller and who took nearly two hours to die. The state will not be able to carry out executions until the resolution of a lawsuit that alleges Arizona has abused its discretion in the methods and amounts of drugs used in past executions.
The state hasn't publicly explained its aim in taking on the new policy, which surfaced last month in the lawsuit. The Arizona Department of Corrections, which carries out executions, didn't respond to requests for comment. The Arizona Attorney General's Office, which is defending the state in the lawsuit, declined to comment.
Under the policy, the state's top prison official would be required, in one execution drug protocol, to use the barbiturate pentobarbital that's obtained by lawyers for inmates or someone acting on their behalf. The corrections director also would have the choice of picking one of two drug protocols involving the sodium pentothal if the barbiturate is obtained on behalf of a prisoner....
Dale Baich, an assistant federal public defender who represents the inmates in the lawsuit,... explained that the policy is unfeasible because the Controlled Substances Act prohibits attorneys and inmates from getting the drugs. "As a lawyer, I just can't go to local Walgreens and pick up a couple of vials of pentobarbital," Baich said.
It's the responsibility of the state, not condemned prisoners, to carry out executions, Baich added. The policy would seem to appeal to inmates who have abandoned their appeals and want to speed up their executions. But Baich said the Controlled Substances Act would still prevent those prisoners from getting lethal-injection drugs.
Robert Dunham, executive director of the Death Penalty Information Center, which has been critical of the way executions are carried out in the United States, said the policy also raises ethical concerns. Death-penalty lawyers are supposed to zealously represent their clients and have a duty not to take actions that harm them, Dunham said. "No one has done it before, and the fact that it is impossible, impractical, illegal and unethical may have something to do with that," he said.
Timothy Agan, a longtime criminal defense lawyer in Phoenix who has handled several death penalty cases, said he can't imagine condemned prisoners lining up to seek their own execution drugs and couldn't foresee a situation in which the policy would be used.
Arizona's revised executions protocol is available at this link, and on page 28 one finds this language (with my emphasis added):
The Director shall have the sole discretion as to which drug protocol will be used for the scheduled execution. This decision will be provided to the inmate and their counsel of record in writing at the time the state files a request for Warrant of Execution in the Arizona Supreme Court. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical pentobarbital in sufficient quantity and quality to successfully implement the one-drug protocol with pentobarbital set forth in Chart A, then the Director shall use the one-drug protocol with pentobarbital set forth in Chart A as the drug protocol for execution. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are unable to obtain such pentobarbital, but are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical sodium pentothal in sufficient quantity and quality to successfully implement the one-drug protocol with sodium pentothal set forth in Chart B or the three-drug protocol with sodium pentothal set forth in Chart C, then the Director shall have the sole discretion as to which drug protocol (Chart B or Chart C) will be used for the scheduled execution.
Friday, February 17, 2017
"The Progressive Prosecutor's Handbook"
The title of this post is the title of this notable new short piece by David Alan Sklansky now available via SSRN. Here is the abstract:
A growing number of chief prosecutors are winning office by pledging a more thoughtful and evenhanded approach to criminal justice — an approach more attentive to racial disparities, the risk of wrongful conviction, the problem of police violence, and the harms of mass incarceration. But there is no roadmap for progressive prosecutors, no consensus set “best practices” for elected prosecutors who want to make criminal justice not just more effective but also fairer and more humane.
This short essay starts to develop such a roadmap. It offers ten suggestions to reform-oriented chief prosecutors: decide in advance how you want to be judged, evaluate and reward your attorneys for what you care about, collect and share data, build in second looks, have a clear and generous disclosure policy, do not turn a profit, reduce case delays, investigate police shootings independently and transparently, pay attention to office culture, and diversity your staff.
US Sentencing Commission announces plans and opens registration for two(!) national seminars
I was intrigued this morning to receive an email from the US Sentencing Commission announcing that it will be conducting two "National Seminars on the Federal Sentencing Guidelines." As this USSC webpage reveals, historically the USSC has presented only a single annual seminar, and even that event did not happen in 2013 due to tight budget times thanks to the sequestration that year. But now, despite a new administration saying two bad old federal regulations are going to be cut for every shiny new one, apparently the mighty Sentencing Commission this year was able to flip this around by offering two shiny new seminars when in the bad old days we only got one.
Jokes aside, I have always found the USSC annual seminars to be terrific and informative events, and the fact that these events are free to participants and fully open to the public truly makes them a very valuable and important form of government public service. This USSC page provides the details of the two upcoming events and links for registering for them:
2017 National Seminar Series on the Federal Sentencing Guidelines
May 31-June 2 in Baltimore
September 6-8 in Denver
The Commission will also hold a seminar in San Diego on June 22-23 for judges only. Other seminars are open to the public.
Registration opened on Friday, February 17, 2017 for both the Baltimore and Denver seminars. Registration is on a first come, first served basis.
Thursday, February 16, 2017
Notable accounting of what Mayor Emanuel sought from AG Sessions to deal with Chicago's gun violence
This local article, headlined "Emanuel used meeting with Sessions to get specific on fed help," reports on the requests Chicago's mayor made to the new Attorney General to help combat violence in a city that has been a frequent talking point about violent crime for Prez Trump. Here is how the article starts:
Attempting to turn President Donald Trump’s talk into federal action, Mayor Rahm Emanuel said Tuesday he used his first meeting with U.S. Attorney General Jeff Sessions to present a list of ways the federal government can help stop the bloodbath on Chicago streets. “On the FBI, DEA, ATF, send more agents [who] are permanently placed here in Chicago to cooperate and work with our Chicago Police Department. They do it in a number of areas today. But, we don’t have the full expanse of what we need to do the job and we have a good relationship with those three federal entities,” the mayor said.
“Second is invest in the technology that you saw in Englewood in the 7th District and the 11th District — the strategic predictive analytic rooms — help us take that to other police districts in the city.”
The mayor’s wish list goes beyond policing to expansion of mentoring, summer jobs and after-school programs from which both the state and federal government have been AWOL, as he put it. “I talked about making sure that our kids have an alternative consistent with what I’ve said about BAM [Becoming A Man] as a mentoring program,” Emanuel said. “There’s an account that deals with ex-offenders. We would like to see that because we have the largest ex-offender program. . . . And help us with summer jobs and after school where the federal government has actually been cutting those resources.”
Emanuel said he also renewed his call for the U.S. Justice Department to step up federal prosecution of gun crimes. A Chicago Sun-Times story last year found that federal weapons charges in Chicago have fallen slightly over the past five years — despite the local rise in firearm offenses. Federal prosecutors in some other major urban areas — Manhattan, Brooklyn, Milwaukee, Detroit and Baltimore — have charged far more people with weapons offenses than the U.S. attorney’s office in Chicago has.
Sources said the meeting with Sessions focused exclusively on ways the Justice Department can assist Chicago in stopping the unrelenting gang violence on city streets.
Wednesday, February 15, 2017
"Emotional Judges and Unlucky Juveniles"
The title of this post is the title of this notable new paper on SSRN authored by two economists, Naci Mocan and Ozkan Eren. Here is the abstract:
Employing the universe of juvenile court decisions in a U.S. state between 1996 and 2012, we analyze the effects of emotional shocks associated with unexpected outcomes of football games played by a prominent college team in the state. We investigate the behavior of judges, the conduct of whom should, by law, be free of personal biases and emotions. We find that unexpected losses increase disposition (sentence) lengths assigned by judges during the week following the game. Unexpected wins, or losses that were expected to be close contests ex-ante, have no impact.
The effects of these emotional shocks are asymmetrically borne by black defendants. We present evidence that the results are not influenced by defendant or attorney behavior or by defendants’ economic background. Importantly, the results are driven by judges who have received their bachelor’s degrees from the university with which the football team is affiliated. Different falsification tests and a number of auxiliary analyses demonstrate the robustness of the findings.
These results provide evidence for the impact of emotions in one domain on a behavior in a completely unrelated domain among a uniformly highly-educated group of individuals (judges), with decisions involving high stakes (sentence lengths). They also point to the existence of a subtle and previously-unnoticed capricious application of sentencing.
Repeat rape and murder for sex offender subject to monitoring shows limits of GPS as incapacitation tool
This article in my local paper about a local murder that has received a lot of attention provides a cold reminder that GPS monitoring typically cannot and will not alone serves as fool-proof crime prevention tool. The article is headlined "Ex-convict charged in slaying of Ohio State student was on GPS monitoring," and here are the details:
A sex offender who is accused of abducting, raping and killing an Ohio State University student was on GPS monitoring. Brian L. Golsby, 29, who was released from state prison on Nov. 13 after serving six years for robbery and attempted rape, had special conditions of supervision under his post-release control for five years.
"I can confirm that he was on GPS monitoring, which is not uncommon due to the fact that he did not have a permanent residence upon his release," said JoEllen Smith, a spokeswoman for the Ohio Department of Rehabilitation and Correction. Golsby was living in a state-contracted residential housing program that granted him a temporary residence.
Grove City police arrested Golsby after 21-year-old Reagan Tokes' body was found on Feb. 9 near the entrance of Scioto Grove Metro Park. Detectives say Golsby abducted Tokes after she left work Feb. 8 in the Short North. He forced her to withdraw $60 from an ATM, raped her and fatally shot her twice in the head before dumping her body. Investigators already had Golsby's DNA from prior offenses and matched it to a cigarette butt left in Tokes' car. Tokes was set to graduate from OSU in May with a degree in psychology.
Smith said state law prevents her from going into details of the conditions Golsby had to follow. All offenders are prohibited from carrying guns, but it's unclear whether travel restrictions were placed on Golsby in addition to what sex offenders have to abide by. "DRC contracts with community providers for electronic monitoring and GPS services. The level of monitoring depends on the offender and circumstances for which the service is requested," Smith said.
She would not specify which vendors are used or describe the level of monitoring that offenders like Golsby could have. It's unclear whether he triggered an alert while wearing the bracelet, or, if he had discarded the monitor, how parole officers would have been notified. It's also unknown how often parole officers check the movements of offenders assigned to them, or how far back the monitor records travel. "DRC is not providing specifics relative to this case due to the ongoing criminal investigation," Smith said.
Columbus police have been looking at Golsby as a possible suspect in a series of attacks on women in German Village and near Nationwide Children's Hospital.
Interesting Q&A about Prez Obama's clemency efforts with former White House counsel Neil Eggleston
The Marshall Project has this notable new piece that reviews Prez Obama's clemency work via an interview with former White House counsel Neil Eggleston. The piece is headlined "The Man Who Ran Obama's Clemency Machine: 'He felt strongly that this was a gift, and the gift had to be earned.'" Here are excerpts:
From one angle, former President Barack Obama was the most merciful president in U.S. history, granting commutations to more than 1,700 federal prisoners.... But his final tally was also far below earlier expectations, given that former Attorney General Eric Holder once speculated that the final number of clemency grants could reach 10,000 — one of every 19 federal prisoners. Obama also received more petitions for clemency than any recent president.
Blame has been passed around, much of it centering on the bureaucracy that emerged to handle the deluge of potential cases, as well as the role federal prosecutors played in the process. In the end, attorneys who felt they had submitted strong cases to the president often wondered why they lost. “In granting so many fewer petitions than originally projected, the administration may have done more to exacerbate the arbitrariness of the sentencing regime writ large than to remedy it,” one of those attorneys, Sean Nuttall, wrote recently at The Marshall Project.
One key figure in the process was Neil Eggleston, who served as White House counsel from April 2014 through the end of Obama’s term. We asked him to discuss the process from the inside....
How closely did President Obama look at each of the applications for clemency he received? And what did you learn about him based on how he handled them?
I would give him memos on the cases, and he would spend a long time on each one. For a significant number, he was fine with my recommendation. For others, he would say: “Why are you recommending this person to me? Look at his conduct in prison, look at his prior convictions. I’m uncomfortable that this guy is going to take advantage of a second chance.”
Or the alternative: There were times when the deputy attorney general may have recommended in favor of a commutation, and I recommended against it, and [Obama] would call me in and ask: “Why don’t you agree with this one?” Or he’d say: “Look there’s this prior conviction, I’m troubled by it, can you get me more information?”
He was really into the details. There were two parts to the way he thought. The first was he just thought a lot of these sentences from the 90’s and 2000’s were excessive. But he also felt very strongly about the idea of rehabilitation and second chances. It wasn’t enough that the person had just gotten too lengthy a sentence. He also wanted make sure these were people who would benefit from a second chance. So if someone didn’t do any programming, got into fights, had a lot of infractions, etc., I think the president was concerned they would be unlikely to do anything but go back to their life of crime when they got out. He felt strongly that this was a gift, and the gift had to be earned.
One common criticism of the process was that there were arbitrary outcomes, that two people with similar cases could be granted and denied clemency.
I think the thing the outside commentators didn’t really understand was that I had more information about these people than others did, including, frankly, their lawyers. I had records of how they performed in prison, and information about their prior crimes. And when people say there was arbitrariness it’s because they didn’t know factors that I knew. All 1,700 went through me and the small group of lawyers underneath me. And ultimately I didn’t want people in jail thinking to themselves, “How can this be?” So is there some arbitrariness? Humans making decisions will not always be perfect. But I reject the notion that there was arbitrariness....
Were you afraid that a single heinous crime by one of these released men or women would derail the whole program?
We never mentioned the words “Willie Horton.” But the answer is yes — very much so. The president wanted to make sure these were people who would take advantage of their second chances, but part of that was making sure they wouldn’t go back to jail. In the letter the president sent to released prisoners, he wrote to them that their choices “will also influence...the possibility that others in your circumstances get their own second chance in the future.” He was saying: “If you mess up, I may not be able to give clemency to other people.” It’s pretty explicit....
One criticism was that it was strange to have prosecutors — from the same department who got these sentences in the first place — weigh in on clemency decisions. Did you think about this?
I think that criticism was completely misguided and based on some sort of theoretical, potential problem. The fact is that Deputy Attorney General Sally Yates, a 27-year Department of Justice prosecutor out of Atlanta, was a very strong supporter of this initiative. Loretta Lynch, too. The people who criticized their involvement did so on a theoretical conflict — not an actual conflict. It’s just not true.
That suggests the Department of Justice under incoming Attorney General Jeff Sessions could rapidly go in another direction and oppose the use of clemency.
I know Sessions publicly opposed our initiative. I hope that I’m wrong, but I worry that given his comments, this will not be pursued by the new administration. It’s going to require them to decide this is something they want to continue. I hope they do.
Tuesday, February 14, 2017
Hard-to-believe harshness in prosecution of Virginia teen receiving underage pics
This new Reason piece by Lenore Skenazy tell a tale about a teenager in Virginia prosecuted for a sex offense that seem truly hard to believe. The piece is fully headlined "Teen Girl Sent Teen Boy 5 Inappropriate Pictures. He Faced Lifetime Registry as a 'Violent Sex Offender' or 350 Years in Jail. Welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders." And here is the story:
Zachary, now 19, is in jail awaiting sentencing for five pictures his teenage girlfriend sent him of herself in her underwear. He faced a choice between a possible (though unlikely) maximum sentence of 350 years in prison, or lifetime on the sex offender registry as a "sexually violent offender" — even though he never met the girl in person. Here's what happened.
About two years ago, when Zachary was a 17-year-old high school senior in Stafford County, Virginia, a girl in his computer club invited him over to visit. She introduced him to her younger sister, age 13. This younger sister told Zachary he reminded her of a friend: this friend, also a 13-year-old girl, shared Zachary's love of dragons and videogames.
The two 13-year-olds started skyping Zachary together. Eventually Zachary and the dragon-lover struck up a online friendship, which developed into a online romance. By the summer, a month after Zachary turned 18, the girl sent him five pictures of herself in her underwear. Her face was not visible, nor were her private parts.
That's according to information provided by Zachary's parents, as well as an evaluation with Zachary conducted by a psychologist. Zachary is incredibly smart, according to the psychologist, though socially awkward and emotionally immature. Importantly, he does not possess "distorted" ideas about sex, according to the psychologist.
Even so, Zachary was arrested and charged with 20 felonies, including indecent liberties with a minor, using a computer to propose sex, and "child porn reproduce/transmit/sell," even though he did not send or sell the pictures to anyone. All this, from five underwear pictures. If convicted, Zachary's father told me, he faced a theoretically possible maximum sentence of 350 years.
Instead, he took a plea bargain. This is what prosecutors do: scare defendants into a deal. Zachary agreed to plead guilty to two counts of "indecent liberties with a minor." For this, he will be registered as a violent sex offender for the rest of his life. Yes, "violent" — even though he never met the girl in person.
Zachary's dad wrote to the authorities asking about this, and got a letter back from the Virginia State Police reiterating that, "This conviction requires Zachary to register as a sexually violent offender." The letter, which was obtained by Reason, added that in three years, "a violent sex offender or murderer" can petition to register less frequently than every three months. "How do you like that?" said the dad in a phone conversation with me. "Same category as a murderer."
As part of the plea, Zachary also agreed never to appeal. He will be sentenced on March 9. Until then, he remains in jail. If this sounds like a punishment wildly out of whack with the crime, welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders. The girl did not wish to prosecute Zachary, according to his dad. He told me the pictures came to light because she had been having emotional issues, possibly due to her parents' impending divorce. Eventually she was admitted to a mental health facility for treatment, and while there she revealed the relationship to a counselor. The counselor reported this to her mother, the police, or both (this part is unclear), leading the cops to execute a search warrant of Zachary's electronic devices where they found the five photos and the chat logs....
Outraged readers should root for two things. First, that this case prompts the Virginia legislature to review the laws that enable draconian persecutions like the one against Zachary.
Second, that Zachary be given a punishment that truly fits the crime. If you recall the case of another Zach — Zach Anderson, a 19-year-old who had sex with a girl he honestly believed was 17 (because she said so) but was actually 14 — he was originally sentenced to 25 years on the sex offender registry. But after public outcry, he got two years' probation instead, on a "diversion program." A program like this is sometimes available for first-time offenders. It sounds far more reasonable. Or maybe Zachary could do some community service — like speaking at high school assemblies to warn students that what seems like consensual teenage shenanigans could land them on the registry for the rest of their lives.
I have no basis to question the basic account of this case, but I cannot help but think there is more to this story given that the defendant he was charged with 20 felonies. I do not know Virginia law well, but really wonder just how five texted pics alone could provide the foundation for charging 20 felonies.
UPDATE: A helpful reader alerted me to this local article from last month with suggests that part of the crimes of the defendant here included trying to arranging a meeting for sex with the underage girl discussed above. This addition aspect of the story makes it a little easier to believe and understand, though it does not undercut the apparent reality that prosecutors here took a remarkably aggressive posture in a case involving essentially teen sexting.
Noting central place of Texas in (incomplete) consensus disfavoring increased use of incarceration
Today's New York Times has this extended commentary about incarceration authored by Tina Rosenberg running under the headline "Even in Texas, Mass Imprisonment Is Going Out of Style." Here are excerpts:
It promises to be a bleak four years for liberals, who will spend it trying — and, most likely, failing — to defend health care, women’s rights, climate change action and other good things. But on one serious problem, continued progress is not only possible, it’s probable. That is reducing incarceration. In an era of what seems like unprecedented polarization and rancor, this idea has bipartisan support. The Koch brothers and Black Lives Matter agree. The American Civil Liberties Union and the American Conservative Union Foundation agree. Bernie Sanders and Newt Gingrich agree.
Here’s what they agree on:
• The United States went overboard on mass incarceration in the 1980s and 1990s.
• This has ruined a lot of lives — of those incarcerated, yes, but also others among their families and communities.
• The evidence says that harsher sentences don’t prevent crime and may even lead to more crime.
• Jailing people is really, really expensive.
• Prison brings no help and much harm to the 80 percent of prisoners who are addicted to drugs or mentally ill.
• There are alternatives to imprisonment that keep Americans safe.
(There are also crime and justice issues that these liberals and conservatives do not agree on, such as the death penalty, the merits of private prisons and, of course, guns.)
Even all this agreement is no guarantee of progress in Washington. President Trump’s policies on crime are whatever slogans get the crowd roaring. Attorney General Jeff Sessions has a D-plus record on this issue as a senator. He supported reducing the disparity in sentencing for cocaine and crack possession. He did vote for the Prison Rape Elimination Act — kudos for that, I suppose. But last year, Mr. Sessions, along with a few other Republican senators, blocked the major bill on this issue, the Sentencing Reform and Corrections Act, from coming to a vote. So the administration can be expected to be unhelpful, with Congress a question mark.
While Washington’s actions are important, however, federal prisons hold only one in eight imprisoned Americans. So mass incarceration is really a state issue. And in the states, momentum is heartening. After quintupling between 1974 and 2007, the imprisonment rate is now dropping in a majority of states. Overall, it fell by 8.4 percent from 2010 to 2015, while crime dropped by 14.6 percent, according to research by the Pew Charitable Trusts.
California slashed its incarceration rate by 27 percent between 2006 and 2014 after a court order. New York cut its rate by 18 percent, largely because of reform of the Rockefeller drug laws that mandated long sentences for possession. New Jersey’s rate dropped by 24 percent.
More remarkable — and probably more persuasive to other states and to Congress now — is the shift in red states, where incarceration rates have been the highest. In the last decade, they have dropped substantially in South Carolina, Mississippi, Georgia and, notably, in lock-’em-up Texas....
The cost of prisons was a huge issue. In 2007, the Texas Legislative Budget Board projected that the state would need more than 17,000 new prison beds over five years, a building project that would cost $530 million, never mind the operating costs. That pushed the ultraconservative House speaker, Tom Craddick, to a breaking point. Jerry Madden, the Republican chairman of the House Corrections Committee, said in an interview that Craddick took him aside. “Don’t build new prisons,” Craddick told him. “They cost too much.”
Madden was an engineer and took that approach, asking: What is proven to work to keep people out of prison? How much of that do we need to buy in order to not build more of them? For ideas, he and his staff talked to research and advocacy groups, including the liberal coalition and the conservative Texas Public Policy Foundation, which gave birth to and houses Right on Crime.
That there was a conservative research group to consult was in itself remarkable. “No one in conservative think tanks worked on criminal justice, other than to advocate for more prisons and more incarceration,” said the foundation’s director, Brooke Rollins, who had been Gov. Rick Perry’s policy director. But in 2004, Rollins got a call from Tim Dunn, an oilman who helps fund the foundation and serves on its board. Dunn has put millions of his own money into pushing the Texas legislature further to the right. Texas Monthly called him “probably the most influential person many Texans have never heard of.”
“Conservatives are wrong on crime,” he told a startled Rollins. “Scripture would not call us to build prisons and forget people.” Dunn believes that crime victims want restitution and repentance, while the prison system merely incapacitates. On his personal website, he wrote that “nonviolent crimes should be recompensed in a way that gets people back into the work force and adding to communities as quickly as possible,” and that Texas should “focus on restoring victims and communities damaged by crime.”
At Dunn’s urging, Rollins hired Levin part time to work on a conservative approach to criminal justice reform. “We found the conservative and liberal think tanks agreed on 70, 80 percent of the stuff,” said Madden. And it’s those areas of agreement that were put in the bill. The reforms passed nearly unanimously — and although Perry had previously vetoed narrower reforms, this time he signed them. (He now endorses the Right on Crime agenda.) Reforms continue today: 16 bills passed in the last legislative session, including one allowing people to erase their criminal records in some circumstances....
The state now has drug courts, veterans’ courts and mental health courts. “They are there to provide help, but at the same time, structure,” said Madden, who is retired from the legislature. “You have a problem and we’re going to help you with your problem.” Many inmates were in prison for technical violations of their probation or parole. Now those violations often bring rapid sanctions and supervision instead of a return to prison.
The rate of incarceration in Texas state prisons fell by 17 percent from 2007 to 2015, according to the coalition, and the juvenile incarceration rate fell by nearly three-quarters. Recidivism is dropping steadily. At the same time, the crime rate has dropped by 27 percent.
Texas still has much to do. It ranks sixth or seventh in the nation in imprisonment rates. Some 8,900 people are in the state jail system for crimes that are neither violent nor sexual. Many are there for drug charges, but they often can’t get treatment in jail. Thousands of people are sent back to prison each year for technical revocation of parole or probation. As for juveniles, 22,000 are in the adult system, where they are at high risk of sexual assault and suicide....
The fall in crime rates — itself a reason incarceration has dropped — has made reform politically possible. Conservative leadership in states like Texas gives everybody cover. And Americans support criminal justice reform by large majorities. One telling example: in his re-election campaign in 2014, Gov. Nathan Deal of Georgia, a Republican, highlighted his reforms that lowered the rate of incarceration among African-Americans by 20 percent. Twenty years ago, a Republican in Georgia would have boasted about the opposite.
If crime rates begin rising again, could hard-line thinking once more prevail? Yañez-Correa doesn’t think so. “Many legislators want to work on these issues jointly because other issues are so polarized,” she said. “People on both sides are genuinely interested and devoted.”
This story is important and encouraging, but it fails I think it connect fully with the import and impact of Prez Trump campaigning on a "law and order" platform and his eagerness to make much of the uptick in murder and other violent crimes in some big cities in recent years. The folks over at Crime & Consequences and many others are quick and keen to link any and every increase in crime to recent decreased use of incarceration, and that perspective is certainly some element of how Prez Trump and AG Sessions think about crime and punishment issues.
I remain hopeful that, especially at the state level, there is continued interest in, and bipartisan support for, an array of "smart on crime" alternatives to incarceration for a range of less serious and less dangerous offenders. But I do not think that Prez Trump and AG Sessions, arguably the two most important criminal justice policy-makers for the next few years, subscribe to all or even most of what is listed above in the commentary as points of agreement. And that is a very big deal that must always be front and center as one considers the future of criminal justice reform at both the federal and state level.
February 14, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)
Monday, February 13, 2017
Is due process violated when a plea is taken and sentence imposed on a nearly dead-drunk defendant?
I am always eager to find funny sentencing stories, but the sentencing stories that might seem funny are really never that funny. This Omaha World-Herald article, which prompts the question in the title of this post, is one of those not-really-funny stories. The article is headlined "Court accepts guilty plea from Omaha woman too drunk to stand, sparking concerns due process was violated," and here are the particulars:
Douglas County Judge Lawrence Barrett convened court on a Thursday morning in early February, 15 cases on his docket. The first: A 32-year-old Omaha woman accused of violating the probation term she had been given for reckless driving.
A month after Barrett had placed her on probation, Sarah E. Carr was arrested in Lincoln on suspicion of driving drunk. Officers said her blood-alcohol content was over .15. Hence the probation violation. Hence the Feb. 2 hearing. Barrett called out Carr’s name. Her aunt approached. “Your Honor, Sarah is here, but she’s passed out in the car.” Barrett: “She’s passed out in her car?”
After some discussion, the aunt and a court official went to the vehicle, pulled out a drunken Carr and loaded her into a wheelchair. What happened next shocked longtime legal observers. Judge Barrett allowed the woman, plopped in her wheelchair, to plead guilty to a probation violation. He then found her guilty and sentenced her to 90 days in jail. And no one protested.
After Carr received her sentence, deputies administered a breath test. Her blood-alcohol content measured .44 — 5½ times the legal limit for driving, and a level so high that it could lead to death, according to toxicology experts.
Her barely conscious plea has caused a stir in the courthouse, prompting concerns about what was done to preserve the woman’s constitutional rights to due process. Under the Fifth Amendment, a defendant must “knowingly, willingly, intelligently and voluntarily” enter a plea. Carr has since told others she has little to no memory of being in court. (Attempts to interview Carr at the jail last week were unsuccessful.)
After The World-Herald inquired about the case, Deborah Lee, a 16-year Douglas County public defender who represented Carr, resigned. Douglas County Public Defender Tom Riley confirmed that Lee resigned but declined to detail reasons. Carr is far from the first defendant to show up drunk at court — especially in county courtrooms where DUIs and other drunken offenses are heard.
But courthouse veterans say this is the first case they could recall in which the typical protocol wasn’t followed when someone suspects a defendant is drunk. In other cases, judges have had deputies or probation officers administer a breath test. T ypically, a defense attorney then asks for the case to be delayed. The judge increases bail or revokes it. And the defendant sobers up in jail until his or her next court date.
Riley said someone should have put a stop to the Carr hearing. “This certainly isn’t the first person who has appeared in court under the influence,” Riley said. “It was incumbent upon someone in the courtroom — whether it was our lawyer or the prosecutor or the (judge) on their own observation — to at least make further inquiry into her condition.”
Judge Barrett, a 23-year veteran of the bench and a former assistant public defender, said he hopes the woman gets help before she further harms herself. He encouraged a World-Herald reporter to listen to a digital recording of the hearing. When the reporter asked if Carr was drunk, the judge said: “Not that I know of.” “I questioned her,” Barrett said. “She listened to everything I asked — and responded.”
Barrett’s statement that he didn’t know the woman was drunk raised eyebrows among those who observed the hearing.... An Omaha man, who was among about 30 people gathered in the courtroom, later said he was appalled at the scene, calling it a “miscarriage of justice.” An attorney in the courtroom recalled that the woman appeared “dazed and confused.”...
[Kevin] Slimp, the assistant city prosecutor, could not be reached for comment. However, Omaha City Prosecutor Matt Kuhse said Slimp has told him that he did not know Carr was drunk. In fact, Kuhse said, Slimp had little recall of anything about the case, other than the woman being in a wheelchair. Kuhse said city prosecutors often are balancing multiple cases — and often are having side conversations with defense attorneys while another case is being heard.
“When you notice that someone is just not getting what’s going on, we do have an obligation to step in,” Kuhse said. “That being said, I’m not convinced there’s enough evidence to show that the prosecutor should have stepped in in this case. We now know that it was a .44 (blood-alcohol level), but that’s the benefit of hindsight. My understanding is that she answered appropriately to the judge’s questions. It wasn’t like she blurted out ‘banana’ to a yes-no question.”...
Riley said he was “distressed” by the case. “Do I think the result would have been different? Probably not,” he said. “But there’s a right way to do things, and there’s a wrong way to do things. “Shame on us for not doing it the right way.” Riley said he assigned another public defender to visit Carr in jail last week. The new attorney explained to Carr that she probably would succeed if she attempted to withdraw her plea. One reason to try: Riley said his office could have argued for a lesser jail term. Barrett gave Carr the maximum term for that misdemeanor.
Carr was not interested — instead opting to focus on getting better, Riley said. “Mercifully, there would have been options to undo this,” Riley said. “I’m glad that this person wasn’t irreparably harmed. “But there were enough problems with all of this to share blame all around. I’m hopeful this will open people’s eyes up to how we should be doing things.”
Will Prez Trump and AG Sessions listen to law enforcement leaders with diverse views on crime and punishment?
The question in the title of this post is prompted by this New York Times article, headlined "Police Chiefs Say Trump’s Law Enforcement Priorities Are Out of Step," discussing a new report issued by organization Law Enforcement Leaders to Reduce Crime and Incarceration. The NY Times piece provides this accounting of the report along with some diverse perspectives on how diverse law enforcement leaders look at and toward the Trump Administration:
Not surprisingly, President Trump’s approach to crime, which began to take shape in a series of moves last week, generated swift criticism from liberals and civil rights groups. But it also stirred dissent from another quarter: prominent police chiefs and prosecutors who fear that the new administration is out of step with evidence that public safety depends on building trust, increasing mental health and drug addiction treatment, and using alternatives to prosecution and incarceration.
“We need not use arrest, conviction and prison as the default response for every broken law,” Ronal W. Serpas, a former police chief in Nashville and New Orleans, and David O. Brown, a former Dallas chief, wrote in a report released last week by a leading law enforcement group. “For many nonviolent and first-time offenders, prison is not only unnecessary from a public safety standpoint, it also endangers our communities.”
The organization, the Law Enforcement Leaders to Reduce Crime and Incarceration, is made up of more than 175 police officials and prosecutors, including Charlie Beck, Los Angeles’s police chief; Cyrus R. Vance Jr., Manhattan’s district attorney; and William J. Bratton, the former police chief in New York and Los Angeles. Other leading law enforcement groups have also called for an increase in mental health and drug treatment, a focus on the small number of violent offenders who commit the most crimes, training officers on the appropriate use of force, and retooling practices to reflect a growing body of evidence that common practices, such as jailing people before trial on minor offenses, can actually lead to an increase in crime. The group warned that “failing to direct these resources toward our most immediate and dangerous threats risks wasting taxpayer dollars,” singling out using federal money on “dragnet enforcement of lower-level offenses.”
Mr. Trump has shifted the focus from civil rights to law and order, from reducing incarceration to increasing sentences, from goading the police to improve to protecting them from harm. Last week, he swore in a new attorney general, Jeff Sessions, who has said that the government has grown “soft on crime,” and helped block a bipartisan bill to reduce sentences. Mr. Sessions said that a recent uptick in crime in some major cities is a “dangerous, permanent trend,” a view that is not supported by federal crime data, which shows crime remains near historical lows. The president signed executive orders that repeatedly connected public safety to immigration violations, vowing to fight international crime cartels; to set up a task force to “comprehensively address illegal immigration, drug trafficking, and violent crime”; and to focus on preventing violence to peace officers.
Some police chiefs and sheriffs have complained that immigration enforcement is not consistent with their priorities and could undermine hard-earned trust. “I would rather have my officers focused on going after violent criminals and people breaking into homes than going after nannies and cooks,” Chief Art Acevedo of Houston said. Kim Ogg, the new district attorney in Houston, won office promising to make changes like dropping prosecution of low-level drug offenses, reducing the use of money bail and releasing videos of police shootings. Those priorities were much more aligned with the Obama administration than Trump’s, in whose pronouncements Obama-era buzzwords like deincarceration, constitutional policing and de-escalation — reducing the use of force during police encounters — have all but disappeared. Mr. Trump did tell a gathering of police chiefs this week: “As part of our commitment to safe communities, we will also work to address the mental health crisis. Prison should not be a substitute for treatment.”...
Some police chiefs said they are reserving judgment until there is more meat on the bones of the administration’s plans. “Hopefully, they are going to seek our practical advice,” said Edward A. Flynn, Milwaukee’s police chief, who also heads the legislative committee of the Major Cities Chiefs Association. “That to us is key. We don’t want any more policy bromides grounded in campaign promises. We want ideas grounded in practical wisdom about how to protect our cities.”
Still, a number of chiefs — and perhaps the vast majority of lower-ranking officers — say they are basking in the glow of Mr. Trump’s positive attention after feeling under siege during the Obama administration. “Law enforcement in general was painted with a very broad brush,” said Michael J. Bouchard, the sheriff of Oakland County, Mich. “The idea was that policing was broke, and I think that was a false dialogue.”
Unions agreed. “I can promise that if we have a president who is speaking about protecting the lives of police officers, that the membership is going to be supportive of him,” said Chuck Canterbury, the president of the Fraternal Order of Police. “No police officer took an oath that said, ‘I agree to support and defend the Constitution and to get my butt whipped.’” Michael A. Ramos, the president of the National District Attorneys Association and the chief prosecutor in San Bernardino County, Calif., hailed the shift in emphasis, saying the pendulum had swung “way too far” toward being “soft on crime.”
Law enforcement leaders responded more positively to Mr. Trump’s order to ratchet up the fight against organized crime cartels, which operate through intermediaries in even the smallest American cities through the sale of heroin, methamphetamine, and other drugs. But Darrel W. Stephens, the executive director of the Major Cities Chiefs Association, said the nation also needed to address its appetite for drugs: “We must do everything we can to stop the flow of drugs into our country, but doing so would not solve our substance abuse problem.”
The full 28-page report referenced here is titled "Fighting Crime and Strengthening Criminal Justice: An Agenda for the New Administration," and it is available at this link. An executive summary and press release provides these five bullet points describing the report's suggested priorities:
• Prioritizing fighting violent crime.
• Enact federal sentencing reform.
• Increasing mental health and drug treatment.
• Bolstering community policing.
• Expanding recidivism reduction programs.
Sunday, February 12, 2017
Is big data "reinforcing racial bias in the criminal justice system"?
The question in this post is prompted by this Washington Post commentary headlined "Big data may be reinforcing racial bias in the criminal justice system." The piece is authored by Laurel Eckhouse, a researcher with the Human Rights Data Analysis Group’s Policing Project at UC Berkeley, and here are excerpts:
Big data has expanded to the criminal justice system. In Los Angeles, police use computerized “predictive policing” to anticipate crimes and allocate officers. In Fort Lauderdale, Fla., machine-learning algorithms are used to set bond amounts. In states across the country, data-driven estimates of the risk of recidivism are being used to set jail sentences.
Advocates say these data-driven tools remove human bias from the system, making it more fair as well as more effective. But even as they have become widespread, we have little information about exactly how they work. Few of the organizations producing them have released the data and algorithms they use to determine risk.
We need to know more, because it’s clear that such systems face a fundamental problem: The data they rely on are collected by a criminal justice system in which race makes a big difference in the probability of arrest — even for people who behave identically. Inputs derived from biased policing will inevitably make black and Latino defendants look riskier than white defendants to a computer. As a result, data-driven decision-making risks exacerbating, rather than eliminating, racial bias in criminal justice....
We know that a black person and a white person are not equally likely to be stopped by police: Evidence on New York’s stop-and-frisk policy, investigatory stops, vehicle searches and drug arrests show that black and Latino civilians are more likely to be stopped, searched and arrested than whites. In 2012, a white attorney spent days trying to get himself arrested in Brooklyn for carrying graffiti stencils and spray paint, a Class B misdemeanor. Even when police saw him tagging the City Hall gateposts, they sped past him, ignoring a crime for which 3,598 people were arrested by the New York Police Department the following year.
Before adopting risk-assessment tools in the judicial decision-making process, jurisdictions should demand that any tool being implemented undergo a thorough and independent peer-review process. We need more transparency and better data to learn whether these risk assessments have disparate impacts on defendants of different races. Foundations and organizations developing risk-assessment tools should be willing to release the data used to build these tools to researchers to evaluate their techniques for internal racial bias and problems of statistical interpretation. Even better, with multiple sources of data, researchers could identify biases in data generated by the criminal justice system before the data is used to make decisions about liberty. Unfortunately, producers of risk-assessment tools — even nonprofit organizations — have not voluntarily released anonymized data and computational details to other researchers, as is now standard in quantitative social science research.
For these tools to make racially unbiased predictions, they must use racially unbiased data. We cannot trust the current risk-assessment tools to make important decisions about our neighbors’ liberty unless we believe — contrary to social science research — that data on arrests offer an accurate and unbiased representation of behavior. Rather than telling us something new, these tools risk laundering bias: using biased history to predict a biased future.
Looking at Ohio Gov Kasich's clemency record and those of his predecessors
This local article, headlined "Kasich stays conservative with pardons," discusses how my Governor has recently used his clemency powers. Here are the details:
Gov. John Kasich used his executive clemency power a little more in 2016 than in previous years, but remains the most conservative governor in 30 years in granting commutations, pardons and reprieves for criminal sentences.
Kasich, a Republican now in his seventh year as governor, approved 18 of 526 requests for clemency last year, slightly more than 3 percent. He approved just two of 244 requests in 2014. The 18 cases approved last year included one in which the Florida man seeking clemency for a 41-year-old Ohio crime died after filing the application; Kasich approved the pardon posthumously.
Statistics obtained by The Dispatch from a public-records request made annually to the governor's office do not include death-penalty cases, such as those granted on Friday when Kasich granted reprieves to move back eight scheduled executions in response to a court order.
In six years in office, Kasich approved 86 of 2,291 requests to reach his desk, about one in 26.
Ohio governors have nearly unlimited clemency power in criminal cases after the Ohio Adult Parole Authority has made a recommendation in a case. The governor does not have to agree with the parole board's decision, but he did in all 13 cases he approved last year.
The clemencies approved by Kasich were all for old, mostly non-violent crimes. All were pardons, which is "an act of grace or forgiveness that relieves the person pardoned from some or all of the ramifications of lawful punishment," according to the Ohio Department of Rehabilitation and Correction....
Kasich agreed with the parole board in all but eight of 526 cases last year. In the eight cases, he denied clemency where the parole board recommended it.
In the three decades that Ohio has tracked gubernatorial clemency, governors have used the power in different ways, sometimes reflecting personal, political or ideological persuasions. Ted Strickland, a Democrat who preceded Kasich as governor, approved 20 percent of 1,615 clemency requests that he handled between 2007 and 2011. Most cases involved low-level, nonviolent offenses, but he commuted five death-penalty sentences to life in prison without parole....
Republicans George V. Voinovich, governor from 1991 to '98, and Bob Taft (1999-2007) each approved less than 10 percent of the clemency requests received. James A. Rhodes, a Republican, approved 17.5 percent of clemencies in 1982, his last year in office.
Democrat Richard F. Celeste, governor from 1983 to 1991, touched off a legal battle in the final days of his second term when he commuted the death sentences of eight men and granted clemency to 25 female prisoners who were victims of battered-woman syndrome. As a result of Celeste's actions, the General Assembly changed the law to require governors to have a recommendation from the parole board before making a clemency decision.
Saturday, February 11, 2017
Ohio Gov forced to delay scheduled executions yet again due to lethal injection ltigation
As this local article reports, "Gov. John Kasich has delayed eight scheduled executions because of continuing litigation over lethal injection drugs." Here are the details:
The governor used his executive clemency authority to reschedule the executions, beginning with Ronald Phillips who was to be put to death on Wednesday for the 1993 rape and murder of three-year-old Sheila Marie Evans. Phillips will now be executed on May 10, under the revised schedule.
The delays follow the Jan. 26 decision by U.S. District Court Magistrate Judge Craig Merz barred the state's use of a three-drug protocol, declaring it unconstitutional, and blocked the pending execution of Phillips and two other inmates. The state has appealed the ruling to the 6th U.S. Circuit Court of Appeals.
"While Ohio is confident its appeal will ultimately be successful ... the appellate court's scheduling will not allow the matter to be resolved in time to allow the state to move forward with its current execution dates," Kasich's office said in a statement this morning. "Accordingly, these delays are necessary to allow the judicial process to come to a full resolution, and ensure that the state can move forward with the executions."
Merz's lengthy order cited problems with executions in other states with the use of midazolam, one of the three drugs in Ohio's protocol, along with rocuronium bromide and potassium chloride.
Ohio hasn't had an execution since Jan. 16, 2014, when Dennis McGuire choked, gasped and struggled against his restraints for much of the 26 minutes it took for him to die. Midazolam was one of the drugs used to execute McGuire.
The revised schedule after Phillips [includes] Gary Otte, moved to June 13 from March 15 [and] Raymond Tibbetts, moved to July 26 from April 12.
Ever since Ohio announced it had acquired execution drugs and had a new execution protocol in early Fall 2016, I have been expecting and sort-of predicting that Ohio would finally find a way to get its machinery of death back up and running again in 2017. Given some prior Sixth Circuit and Supreme Court rulings, I continue to think Ohio will be able to complete some executions this year. But, of course, lethal injection litigation can be like Forrest Gump's box of chocolates: you never quite know what you are gonna get.
Friday, February 10, 2017
Mississippi taking steps to have firing squad, electric chair and gas chamber as execution methods again
As reported in this new Fox News piece, "Mississippi lawmakers want to bring back the firing squad, electric chair and gas chamber as execution methods, a step three other states have taken recently, but for a different reason." Here is more:
Oklahoma reintroduced the gas chamber, Utah the firing squad and Tennessee the electric chair in response to a nationwide scarcity of lethal injection drugs for death row inmates.
Mississippi legislator Andy Gipson said he introduced House Bill 638 in response to lawsuits filed by “liberal, left-wing radicals” challenging the use of lethal injection drugs as cruel and unusual punishment. "I have a constituent whose daughter was raped and killed by a serial killer over 25 years ago, and that person's still waiting for the death penalty. The family is still waiting for justice," Gipson told the Associated Press.
Gipson’s bill passed the House Wednesday, 74-43, and moves to the Senate for more debate.
Mississippi hasn't been able to acquire the execution drugs it once used, and it last carried out an execution in 2012. The state has 47 people on death row, and some have been there for decades.
The 33 states with the death penalty all have lethal injection as the primary method of execution, according to the Death Penalty Information Center and its executive director, Robert Dunham. The center says only Oklahoma and Utah have firing squads as an option; eight states have electrocution, five have the gas chamber, and three have hanging.
The firing squad became an option in Utah in 2015. That same year, Oklahoma Gov. Mary Fallin signed legislation to use nitrogen gas as an option. Tennessee enacted a law bringing back the electric chair in 2014.
“It’s interesting that what we anticipated would happen is happening,” Dunham told FoxNews.com Friday. “As states are having difficulty obtaining drugs for lethal injections, they’re looking at different options.” He expects legal challenges in states that reintroduce old execution methods. “What you will see is when states change their method of execution, there are invariably legal challenges that arise,” Dunham said.
Jim Craig, an attorney who is suing Mississippi over lethal injection drugs, told The Associated Press on Wednesday that each of the proposed new methods of executions would be challenged in court. "Every single one, in essence, just injects a whole new series of issues in the existing case," said Craig, who is with the New Orleans-based Roderick & Solange MacArthur Justice Center. He said with the firing squad, for example, the state would have to set protocols and procedures to reduce the risk of torture, and he doubts the Department of Corrections has prepared to do that....
Oklahoma officials told Fox 25 in November they haven’t established protocols to use nitrogen gas as a backup execution method but have heard from a company offering pain-free and mistake-free gas chamber executions. The company sent a letter to Oklahoma Department of Corrections guaranteeing the “demise of any mammalian life within four minutes,” according to the station.
Thursday, February 09, 2017
Prez Trump signs three crime-fighting executive orders, including one to create a “Task Force on Crime Reduction and Public Safety”
As reported and summarized in this CBS News report, this morning "President Trump signed three executive actions Thursday aimed at bolstering law enforcement and targeting violent crime and criminal drug cartels." Here is more:
The first executive order, according to what Mr. Trump outlined during the signing ceremony in the Oval Office, is meant to direct the Departments of Justice and Homeland Security to “undertake all necessary and lawful action to break the back of the criminal cartels that have spread across our nation and are destroying the blood of our youth and many other people.” The president signed the action Thursday after swearing in Attorney General Jeff Sessions. Among other powers, the action gives broad authority to increase intelligence and lawn enforcement information sharing with foreign powers in order to crack down on “transnational criminal organizations” and their subsidiaries. It also instructs an interagency panel to compile a report on crime syndicates within four months.
“These groups are drivers of crime, corruption, violence, and misery,” the order reads. “In particular, the trafficking by cartels of controlled substances has triggered a resurgence in deadly drug abuse and a corresponding rise in violent crime related to drugs.”...
The president signed two other actions Thursday, including one that creates a task force within the Justice Department dedicated to “reducing violent crime in America.” The “Task Force on Crime Reduction and Public Safety” will have administrative and financial support from the Attorney General’s office, according to the text of the order.
The last action directs the DOJ to implement a plan to “stop crime and crimes of violence against law enforcement officers.” The order itself instructs the department to “pursue appropriate legislation...that will define new Federal crimes, and increase penalties for existing Federal crimes, in order to prevent violence against Federal, State, tribal, and local law enforcement officers.” That recommended legislation could include “defining new crimes of violence and establishing new mandatory minimum sentences for existing crimes of violence.” The order also directs a thorough evaluation of all grant funding programs currently administered by the Justice Department.
I am intrigued by all three of these orders, but I want to read the full orders before I comment on these. Helpfully, the White House now has them available via these links:
Wednesday, February 08, 2017
Jeff Sessions confirmed as Attorney General ... now what for federal sentencing policies and practices?
As Fox News reports here, "Sen. Jeff Sessions won confirmation Wednesday evening to become the next attorney general of the United States," and here's more of the basic backstory:
The Senate narrowly approved the Alabama Republican’s nomination on a 52-47 vote, the latest in a series of confirmation votes that have been dragged out amid Democratic protests. One Democrat, Joe Manchin of West Virginia, joined Republicans in voting to confirm Sessions. Sessions himself voted present.
In his farewell address Wednesday evening, Sessions urged his erstwhile colleagues to get along better following days of bruising debate. "We need latitude in our relationships," Sessions said. "Denigrating people who disagree with us is not a healthy trend for our body."...
Wednesday’s vote came after a rowdy overnight session during which Sen. Elizabeth Warren, D-Mass., was formally chastised for allegedly impugning Sessions’ integrity on the floor. Warren had read a letter authored in 1986 by Coretta Scott King, who was against Sessions’ nomination at the time to the federal bench, arguing he used the power of his office to “chill” black voting rights. Warren also quoted the late Sen. Ted Kennedy, D-Mass., who originally had entered King’s letter into the record, describing Sessions as “disgraceful.”
GOP Senate leaders said Warren had violated Senate rules and should lose her speaking privileges. In a remarkable scene, the Senate then voted 49-43 to suspend Warren’s speaking privileges for the rest of the nomination process – the first time the Senate has imposed such a punishment in decades.
Democrats had repeatedly contended that Sessions is too close to Trump, too harsh on immigrants, and weak on civil rights for minorities, immigrants, gay people and women. Sessions was a prominent early backer of Trump, a supporter of his hard line on illegal immigration and joined Trump's advocacy of a wall along the U.S.-Mexico border....
Republicans argued Sessions has demonstrated over a long career in public service, including two decades in the Senate, that he possesses integrity, honesty, and is committed to justice and the rule of law.
Everyone interested in federal sentencing law, policy and reform as well as all federal sentencing practitioners now must wonder what exactly an Attorney General Sessions will mean for federal sentencing policies and practices emerging from the U.S. Department of Justice. (Over at Marijuana Law, Policy and Reform, I made the same point with respect to federal marijuana policies.)
I am expecting and somewhat fearing the possibility that AG Sessions will be eager, though new memoranda to US Attorneys, to ramp up application of mandatory minimums in a variety of settings. AG Sessions can formally and informally push for "tough and tougher" sentencing policies in lots of other ways as well, and it will be interesting to see whether and how he does in the weeks and months ahead.
Prez Trump talks crime and support for law enforcement with police chiefs . . . and says some interesting things
Prez Donald Trump gave this lengthy speech to a gathering of major city police chiefs, and he had a lot to say about crime and law enforcement toward its conclusion (after an extended Trumpian discussion of the litigation surrounding his travel executive order). Here is some of what the Prez has to say on the crime front (with a few points of emphasis added based on what struck me as especially interesting):
Right now, many communities in America are facing a public safety crisis. Murders in 2015 experienced their largest single-year increase in nearly half a century. In 2016, murders in large cities continued to climb by double digits. In many of our biggest cities, 2016 brought an increase in the number of homicides, rapes, assaults and shootings. In Chicago, more than 4,000 people were shot last year alone, and the rate so far this year has been even higher. What is going on in Chicago?
We cannot allow this to continue. We’ve allowed too many young lives to be claimed -- and you see that, you see that all over -- claimed by gangs, and too many neighborhoods to be crippled by violence and fear. Sixty percent of murder victims under the age of 22 are African American. This is a national tragedy, and it requires national action. This violence must end, and we must all work together to end it.
Whether a child lives in Detroit, Chicago, Baltimore, or anywhere in our country, he or she has the right to grow up in safety and in peace. No one in America should be punished because of the city where he or she is born. Every child in America should be able to play outside without fear, walk home without danger, and attend a school without being worried about drugs or gangs or violence.
So many lives and so many people have been cut short. Their potential, their life has been cut short. So much potential has been sidelined. And so many dreams have been shattered and broken, totally broken. It’s time to stop the drugs from pouring into our country. And, by the way, we will do that. And I will say this: General, now Secretary, Kelly will be the man to do it, and we will give him a wall. And it will be a real wall. (Applause.) And a lot of things will happen very positively for your cities, your states, believe me. The wall is getting designed right now....
It’s time to dismantle the gangs terrorizing our citizens, and it’s time to ensure that every young American can be raised in an environment of decency, dignity, love and support. You have asked for the resources, tools and support you need to get the job done. We will do whatever we can to help you meet those demands. That includes a zero tolerance policy for acts of violence against law enforcement. (Applause.) We all see what happens. We all see what happens and what’s been happening to you. It’s not fair.
We must protect those who protect us. The number of officers shot and killed in the line of duty last year increased by 56 percent from the year before. Last year, in Dallas, police officers were targeted for execution –- think of this. Who ever heard of this? They were targeted for execution. Twelve were shot and five were killed. These heroic officers died as they lived -– protecting the innocent, rushing into danger, risking their lives for people they did not even know, but for people that they were determined to save. Hats off to you people....
[I]nstead of division and disunity -- and which is so much disunity -- we must build bridges of partnership and of trust. Those who demonize law enforcement or who use the actions of a few to discredit the service of many are hurting the very people they say that they want to help. When policing is reduced, crime is increased, and our poorest citizens suffer the most. And I see it all the time. When the number of police goes down, crime goes up.
To build needed trust between law enforcement and the communities they serve, it is not enough for us to merely talk to each other. We must listen to each other. All of us share the view that those in uniform must be held to the highest possible standard of conduct -- so important. ...
That is why our commitment to law and law enforcement also includes ensuring that we are giving departments the resources they need to train, recruit and retain talent. As part of our commitment to safe communities, we will also work to address the mental health crisis. Prisons should not be a substitute for treatment. We will fight to increase access to life-saving treatment to battle the addiction to drugs, which is afflicting our nation like never ever before -- ever. (Applause.)
I've been here two weeks. I've met a lot of law enforcement officials. Yesterday, I brought them into the Oval Office. I asked a group, what impact do drugs have in terms of a percentage on crime? They said, 75 to 80 percent. That's pretty sad. We're going to stop the drugs from pouring in. We're going to stop those drugs from poisoning our youth, from poisoning our people. We're going to be ruthless in that fight. We have no choice. (Applause.)
And we're going to take that fight to the drug cartels and work to liberate our communities from their terrible grip of violence. You have the power and knowledge to tell General Kelly -- now Secretary Kelly -- who the illegal immigrant gang members are. Now, you have that power because you know them, you're there, you're local. You know the illegals, you know them by their first name, you know them by their nicknames. You have that power. The federal government can never be that precise. But you're in the neighborhoods -- you know the bad ones, you know the good ones.
I want you to turn in the bad ones. Call Secretary Kelly's representatives and we'll get them out of our country and bring them back where they came from, and we'll do it fast. You have to call up the federal government, Homeland Security, because so much of the problems -- you look at Chicago and you look at other places. So many of the problems are caused by gang members, many of whom are not even legally in our country.
I saw a few folks tweeting concerns this morning about Prez Trump's statement that we are "going to be ruthless in that fight" against "drugs from poisoning our youth, from poisoning our people." And, with coming likely confirmation of AG Jeff Sessions, there is a very reasonable basis for fearing that the Trump Administration is going to seek to double-down on old tough-and-tougher approaches to the drug war. But given some of the other Trump comments highlighted here (particular the comment that "prisons should not be a substitute for treatment"), I am holding out at least some hope that some nuance will be a part of the particulars of any new Trumpian drug war offensive.
Tuesday, February 07, 2017
"How States Can Take a Stand Against Prison Profiteers"
The title of this post is the title of this paper newly posted to SSRN and authored by Catherine Elizabeth Akenhead. Here is the abstract:
In recent years, state corrections departments have faced pressure to provide better prison conditions, while simultaneously cutting costs. Many critics have touted the emergence of privatized prison services as a cost-effective resolution. However, those services shift the costs on to some of the poorest and most vulnerable consumers, prisoners and their families. This Note explores how private companies providing prison banking services to state correctional facilities use unfair practices to increase profits. The umbrella of prison banking services includes deposits into inmate trust accounts, which allow prisoners to purchase necessities, as well as prepaid debit release cards, which are used to return money to prisoners upon release. This Note describes how certain private companies retain a monopoly on these services, and are awarded contracts based on the amount of commission paid to state correctional facilities.
As a result of paying those commissions and having no incentive to cut costs, private companies drive up their prices and charge consumers exorbitant rates to make deposits or to utilize prepaid cards. These practices are disproportionately affecting prisoners’ families who provide their incarcerated loved ones with monetary support, as well as released inmates struggling to get back on their feet post-incarceration. Statistically speaking, both of these groups are more likely to be low-income and least able to manage additional financial strain. This Note proposes state-level legislation to better protect consumers from these abuses and outlines five key provisions that, if adopted, will serve to prevent private companies from increasing their profit margins at the expense of vulnerable consumers.
Prez Trump in sheriffs meeting expresses support for broad civil forfeiture police powers
This Washington Post report details the notable joke Prez Trump made regarding a state legislator who apparently wants to limit police civil forfeiture powers, and highlights the broader issues raised by the surrounding discussion. Here are the details:
At a meeting on Tuesday with sheriffs from across the country, President Trump joked about destroying the career of an unnamed Texas state senator who supported curtailing a controversial police practice for seizing people's property....
Sheriff Harold Eavenson of Rockwall County, Tex., brought up the issue of civil asset forfeiture, which allows authorities to seize cash and property from people suspected, but in some cases never convicted or even charged, with a crime. Eavenson told Trump of a “state senator in Texas that was talking about legislation to require conviction before we could receive that forfeiture money.”
“Can you believe that?” Trump interjected. “And,” Eavenson went on, “I told him that the cartel would build a monument to him in Mexico if he could get that legislation passed.”
“Who's the state senator?” Trump asked. “Do you want to give his name? We'll destroy his career,” he joked, to laughter from the law enforcement officials in the room....
While many people are unfamiliar with the practice, asset forfeiture is widespread. In 2014, federal authorities alone seized over $5 billion from suspected criminals, more than the total losses to burglary that year. That number doesn't even count seizures conducted by state and local law enforcement. Critics of asset forfeiture policies say the broad leeway afforded to law enforcement officers in most states creates a system ripe for abuse....
A 2015 ACLU investigation found that Philadelphia police routinely seized what amounted to “pocket change” from some of the city's poorest residents. A 2014 Washington Post investigation found that police seized $2.5 billion in cash from motorists not charged with crimes as part of a federal program.
When told of the practice, a large majority of Americans are opposed to it. A December 2016 survey by YouGov and the libertarian Cato Institute found that 84 percent of Americans oppose taking “a person’s money or property that is suspected to have been involved in a drug crime before the person is convicted of a crime.”...
But law enforcement groups have been resolute in their support for the practice. They say seizing money from people not charged with crimes is sometimes necessary to protect public safety, particularly in cases where it may be hard to obtain a criminal conviction against a suspect.
Law enforcement groups often cast asset forfeiture as a tool for fighting drug kingpins and foreign drug cartels, as Sheriff Eavenson implied at the White House meeting. But reports of asset forfeiture abuse suffered by American citizens have become more common. Nonetheless, police have had great success in convincing state and federal lawmakers to uphold the practice.
President Trump has not spoken much about the practice, and the White House did not immediately return a request for comment. But Trump's nominee to lead the Justice Department, Sen. Jeff Sessions, has been an enthusiastic proponent of civil asset forfeiture. In a 2015 Senate hearing, Sessions said that “95 percent” of forfeitures involve suspects who have “done nothing in their lives but sell dope.”
February 7, 2017 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)
"The Death Penalty & the Dignity Clauses"
The title of this post is the title of this notable new article by Kevin Barry, and here is its abstract:
“The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment.” Justice Thurgood Marshall posed this question in 1972, in his concurring opinion in the landmark case of Furman v. Georgia, which halted executions nationwide. Four years later, in Gregg v. Georgia, a majority of the Supreme Court answered this question in the negative.
Now, 40 years after Gregg, the question is being asked once more. But this time seems different. That is because, for the first time in our Nation’s history, the answer is likely to be yes. The Supreme Court, with Justice Kennedy at its helm, is poised to declare the death penalty unconstitutional. No matter what the Court’s answer, one thing is certain: dignity will figure prominently in its decision.
Dignity’s doctrinal significance has been much discussed in recent years, thanks in large part to the Supreme Court’s watershed decisions in United States v. Windsor and Obergefell v. Hodges, which struck down laws prohibiting same-sex marriage as a deprivation of same-sex couples’ dignity under the Fourteenth Amendment. Few, however, have examined dignity as a unifying principle under the Eighth and Fourteenth Amendments — which have long shared a commitment to dignity — and under the Court’s LGBT rights and death penalty jurisprudence, in particular, which give substance to this commitment. That is the aim of this Article.
This Article suggests that dignity embodies three primary concerns — liberty, equality, and life. The triumph of LGBT rights under the Fourteenth Amendment and the persistence of the death penalty under the Eighth Amendment expose a tension in dignity doctrine: the most basic aspect of dignity (life) receives the least protection under the law. Because dignity doctrine demands liberty and equality for LGBT people, it must also demand an end to the death penalty. If dignity means anything, it must mean this.
In anticipation of the Court’s invalidation of the death penalty on dignity grounds, this Article offers a framework to guide the Court, drawn from federal and state supreme court death penalty decisions new and old, statistics detailing the death penalty’s record decline in recent years, and the Court’s recent LGBT rights jurisprudence. It also responds to several likely counterarguments and considers abolition’s important implications for dignity doctrine under the Eighth Amendment and beyond.
Florida legislature finally moving toward really fixing its capital procedures after Hurst
As reported in this AP article, "with death penalty cases grinding to a halt across the state, the Florida Legislature is finally taking its first — and probably only steps — to fix the law so prosecutors can resume cases once again." Here is more:
Legislators are moving ahead with a measure that would require a unanimous jury verdict in cases where the death penalty is being sought. Just a year ago legislators rejected the idea, but the state Supreme Court last October struck down a 2016 law that said the death penalty could be imposed after a 10-2 jury vote.
A Senate panel on Monday approved a bill requiring a unanimous jury verdict and a similar measure is being considered in the state House. The legislation could be among the first bills passed and sent to Gov. Rick Scott when the session officially kicks off in March.
"It is important that we have an orderly system of justice in place for both families of victims and individuals charged with serious crimes," said Sen. Randolph Bracy, an Ocoee Democrat who sponsored the bill. "This legislation removes ambiguity from our death penalty statute, which will help reduce delays in due process for all parties involved in death penalty cases."
Bracy's bill, however, doesn't address other questions raised by recent court decisions, including whether or not the state's nearly 400 current death row inmates deserve a new sentencing hearing if a jury did not unanimously recommend the death penalty. Katie Betta, a spokeswoman for Senate President Joe Negron, said he wants to keep the legislation narrow to get it passed quickly....
Bracy wanted to amend his bill so all current death row inmates would be treated the same but said he didn't have the votes to get the proposal adopted. Sen. Jeff Clemens, a Lake Worth Democrat, complained that legislators should be taking a comprehensive look at the death penalty to avoid having to deal with the issue year after year. But he said that some legislators are concerned they would look "weak" on the death penalty.
The Senate Criminal Justice Committee reported that there are more than 300 death penalty cases pending across the state, including 66 that are now ready for trial. Prosecutors have put some of these trials on hold while they wait for the Legislature to act.
Monday, February 06, 2017
Idaho judge includes celibacy for teen sex offender on intensive probation
As reported in this local article, after "sentencing a 19-year-old Twin Falls man to a year-long therapeutic prison program on a rape charge last week, a judge added an unusual caveat should the teen successfully complete the program and be placed on probation." Specifically:
“If you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married,” 5th District Judge Randy Stoker said.
The judge’s unusual proclamation was made during the sentencing of Cody Duane Scott Herrera, who pleaded guilty to the statutory rape of a 14-year-old girl in March 2015. Now, legal scholars are questioning whether the judge could hold Herrara to his warning.
Stoker said the condition would be put in place in part because Herrera told presentence investigators he’s had 34 sexual partners. “I have never seen that level of sexual activity by a 19-year-old,” Stoker said. Prosecutors also revealed Herrera, who could face more sex-related charges involving an underage girl, has had fantasies about a 13-year-old girl and watches pornography depicting rape.
The Idaho Department of Health and Welfare “did not designate Mr. Herrera as a sexual predator,” Stoker said during his sentencing, “though there seems to be an argument that could be made for that.”
The victim’s mother, making a victim-impact statement, certainly believed Herrera was a predator. “It was his intent from the beginning to take what he wanted from my 14-year-old child — her virginity,” the victim’s mother told the court. “And he stayed around until he got it from her. Cody will never understand what he has done to our family. Cody robbed her of her innocence. He destroyed the child left in her. This can never be returned.”
Stoker sentenced Herrera to an underlying prison sentence of five to 15 years, but suspended the sentence in favor of the year-long rider program. If Herrera successfully completes the program, he’ll be released to probation, and, according to Stoker, a life of celibacy unless he weds.
But that probation condition might be illegal or unenforceable, according to Shaakirrah R. Sanders, an associate professor at the University of Idaho College of Law. “I would suspect (a judge can’t do that),” Sanders said. “I think it infringes on his constitutional rights.” While judges “have quite a bit of discretion” in creating special probation terms, Sanders said, they can’t violate the federal or state constitution. “I think if he appealed, he would win,” Sanders said.
Twin Falls County Prosecutor Grant Loebs said he did think Stoker would be able to impose the probation condition. “The judge has the ability to tell people to do or not do all sorts of things that are (otherwise) legal and constitutional,” Loebs said, pointing out that abstaining from alcohol is a condition of most probations.
“A judge’s purpose is to keep them from committing another offense,” Loebs said. “A judge has right to order things to keep him from doing that … I don’t think this goes beyond what a judge is allowed to do.”
I have personally always viewed probationary conditions that prohibit alcohol more than a bit suspect, but I know that they are regularly imposed and have often been upheld when sufficiently linked to the offense of conviction. With that background, I think the prosecutor here has a reasonable basis for arguing that this celibacy condition could be upheld if challenged. Then again, even though sex and alcohol often are linked, some significant distinctions might be made in this context were there to be legal appeals by the defendant here.
February 6, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)
"Why we should free violent criminals"
The title of this post is the headline of this Boston Globe commentary authored by By David Scharfenberg. Here are excerpts:
The drug war, [some experts] say, is not the major force behind America’s huge prison growth over the last several decades. In fact, less than 20 percent of the country’s 1.5 million prisoners are serving time for such offenses. Free them all tomorrow, and the United States would still have the largest prison population in the world — larger than Russia, Mexico, and Iran combined.
Violent crime is a much more important driver, with almost half of prisoners doing time for offenses like murder and robbery. To make a real dent in mass incarceration, experts say, the country will have to do the difficult work of freeing more of these criminals sooner. “We put all of our attention — almost all of our attention — on things that aren’t nearly as important as the things we ignore,” says Fordham Law School professor John Pfaff, author of the forthcoming book “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.”
Pfaff says the criminal justice reform movement had to start with talk of greater leniency for nonviolent offenders. It couldn’t leap right to a discussion of, say, cutting murderers’ sentences down to a European-style 10 years. But now, he says, it’s time for something more. Not all “violent crime” is as serious as the phrase would imply. In some states, burglarizing a house when no one is home is considered a violent offense. And what about the 18-year-old robber who was carrying a gun but didn’t actually use it?
As for long sentences, it’s true that they play a role in driving prison growth. “Three strikes” laws, mandatory minimums, and other tough-on-crime measures have increased time served for all kinds of offenders — pot dealers and violent criminals alike. A Pew analysis of state prison data showed that prisoners released in 2009 served 36 percent longer than those who were released in 1990.
But at three years, the average prison term is shorter than the conventional wisdom would suggest. Pfaff argues that the real concern is not sentence length, but serving any time in prison at all. Whether you serve 12 or 16 months, he says, the impact is the same. Upon release, convicted felons have a hard time getting decent jobs or good housing. And with the odds heavily stacked against them, they’re more likely to reoffend.
The criminal justice reform movement, Pfaff argues, needs a reorientation — and a willingness to show mercy for prisoners beyond the proverbial nonviolent drug offender. That means diverting more people — whatever their offenses — away from the system, thereby sparing them from a criminal record. And there’s only one way to do that, he says: Change the behavior of the most powerful actor in the criminal justice system, the prosecutor....
Over the last couple of decades, Pfaff’s research shows, they’ve become ever-more aggressive about seeking jail time. In the mid-’90s, prosecutors filed felony charges against about one in three arrestees. By 2008, it was more like two in three. Why are prosecutors getting more aggressive? Maybe because they’re more politically ambitious, Pfaff theorizes. They may think a tough-on-crime record can be parlayed into a run for higher office. Or maybe the police are developing stronger cases, using more surveillance-camera footage, for example.
Whatever the cause, the impact has been enormous. The push to file more felony charges, Pfaff writes in his forthcoming book, is the single most important factor in the growth in prison admissions since crime started dropping in the early-’90s. One solution: legislate a reduction in prosecutorial power. Pfaff suggests creating detailed charging guidelines that would force prosecutors to steer more offenders away from the prison system.
Getting that sort of thing on the books will be difficult though; prosecutors have substantial clout in state legislatures and don’t want to see their power diminished . Which is why advocates may have better luck urging district and state attorneys’ offices to change from within and produce more flexible prosecutors.
Questions raised about Judge Gorsuch's law school work for Harvard Defenders and PLAP
The night Prez Trump nominated Judge Neil Gorsuch to be on the Supreme Court, I noted in this post that I found it notable that Prez Trump stated that "[w]hile in law school, he demonstrated a commitment to helping the less fortunate [by having] worked in both Harvard Prison Legal Assistance Projects and Harvard Defenders Program." But this Wall Street Journal article, headlined "Few Recall Gorsuch’s Volunteer Work at Harvard: Questions arise over Trump Supreme Court pick’s level of participation in programs to help less fortunate while in law school," raises questions about the scope and significance of Judge Gorsuch's work in these organizations:
When President Donald Trump introduced his Supreme Court pick on live television last week, he said Neil Gorsuch had “demonstrated a commitment to helping the less fortunate” by working in the Harvard Prison Legal Assistance Project and the Harvard Defenders. His affiliation with these volunteer programs — which offer law school students real-life legal experience representing prison inmates and the poor — helped give Mr. Gorsuch’s deeply conservative résumé a personal touch, and the groups were highlighted in news reports about his nomination.
But roughly three dozen students who participated in the two programs while Mr. Gorsuch was at Harvard Law School from 1988 to 1991 said they have no recollection of his involvement. “If he was active in PLAP I am sure I would remember him,” said Elizabeth Buckley Lewis, who attended Harvard at the same time as Mr. Gorsuch. Now a New York City tax lawyer who advises nonprofits, she said PLAP was her “most meaningful experience” at Harvard.
The White House gave The Wall Street Journal the name of one Harvard Law School graduate who said he could corroborate that Judge Gorsuch was in the Defenders, but declined to give any details of the judge’s participation. The White House also provided copies of a 2008 email exchange between the Defenders’ alumni director and Judge Gorsuch.
Two people who broadly oversaw the students during this period said they had no memory of Judge Gorsuch’s involvement, a third one declined to say, and a fourth died in 1998. Other Harvard classmates and friends of Mr. Gorsuch say they have no recollection of him discussing either program. Memories can fade over 25 years, and the programs demanded no specific time commitment. Mr. Gorsuch didn’t respond to emailed questions.
The White House referred The Wall Street Journal to Chris Edel, a New York County prosecutor who said he attended a few weeks of training for the Defenders program with Judge Gorsuch in either 1990 or 1991. They also lived together and were members of the Lincoln’s Inn Society, a social club. “What I am prepared to do is corroborate that Neil Gorsuch was in the Harvard Defenders,” said Mr. Edel. “I have a specific recollection of talking to him about one case, but I don’t want to go into the details…I’d like to leave it there.” Mr. Edel recalled one other classmate in the program. David E. Nahmias, now a Georgia Supreme Court justice. Mr. Nahmias said he didn’t remember whether Mr. Gorsuch was involved in the Defenders.
In PLAP, students represent inmates at disciplinary and parole hearings. Defenders provide representation to indigent defendants. In both cases, students are guided by more experienced students and by supervising attorneys. PLAP and Defenders are volunteer programs and students don’t earn credit, so participation isn’t reflected on Harvard’s transcripts....
Not every official bio of Mr. Gorsuch names his involvement with the groups. But they are included in a biography posted online by President George W. Bush’s White House after the judge’s 2006 confirmation to a federal appeals court, as well as a White House press release at the time.
On a Senate questionnaire in connection with the 2006 judicial appointment, Mr. Gorsuch answered a question about “serving the disadvantaged” in part by saying he had done pro bono work beginning in law school, citing the two programs. He said he helped Massachusetts inmates “with respect to, among other things, hearings on disciplinary actions taken against them” and represented “defendants in criminal proceedings in Massachusetts state courts.” Mr. Gorsuch didn’t go further, despite the questionnaire’s request that nominees “describe specific instances and the amount of time devoted to each.”
Mr. Gorsuch was among the recipients of a Nov. 2, 2008, email sent to 124 alumni of the Defender program by Alicia Reed, then the alumni director of the Defenders, who was seeking volunteers to mentor Harvard students. Mr. Gorsuch, by then serving as an appeals court judge in Denver, responded the following day: “I don’t know if I can be of much help this far away from Cambridge, but if I can please do let me know. I found Defenders to be a very rewarding experience.”
Upon seeing the headline of the Wall Street Journal article, I was tempted to accuse Prez Trump of peddling "fake news" when he stressed Judge Gorsuch's involvement with these programs. But it seems that Prez Trump was only repeating a claim that Prez Bush made that it seems was reasonable based on reports by Judge Gorsuch himself. And my guess based on this WSJ reporting is that the Judge was involved in a few cases with both of these groups, but never made work with the groups a centerpiece of his Harvard Law experience the way that some other students did. My experiences a few years later with a could volunteer activities at Harvard Law was similar — e.g., for one journal and the newspaper, I was only involving in a few editing assignments — and I am sure that those who were most involved in those particular activities would not recall my limited involvement.
Prior related post:
- Prez Trump notes Judge Gorsuch's law school work on behalf of prisoners and defendants during SCOTUS nomination
Friday, February 03, 2017
Oklahoma Governor's task force urging significant sentencing reform to deal with surging prison population
As reported in this lengthy local article, "faced with a rapidly growing prison population in a state with the second-highest incarceration rate in the nation, a task force created by Oklahoma Gov. Mary Fallin issued a report Thursday calling for dramatic decreases in sentences for nonviolent drug dealers and manufacturers." Here is more:
Without reform, Oklahoma is on pace to add 7,218 inmates over the next 10 years, requiring three new prisons and costing the state an additional $1.9 billion in capital expenditures and operating costs, the report said. But task members said those costs can be averted and the prison population can be reduced 7 percent over the next decade through a combination of sentence reductions and other reforms, including increased funding for alternative mental health and substance abuse treatment programs.
Oklahoma currently has 61,385 individuals in its overcrowded prison system. That includes 26,581 incarcerated in state facilities and private prisons, 1,643 awaiting transfer from county jails and 33,161 on some form of probation, parole, community sentencing or GPS monitoring, said Terri Watkins, spokeswoman for the Department of Corrections.
Oklahoma's prison population, which is at 109 percent of capacity, has grown 9 percent in the past five years and is now 78 percent higher than the national average. Only Louisiana has a higher rate, the report said.
Oklahoma's female incarceration rate remains the highest in the nation, a distinction the state has held for 25 years, task members said. The state's female population grew 30 percent between 2011 and 2016 and Oklahoma now incarcerates women at a rate more than 2 1/2 times the national average.
In a 38-page report that contains 27 recommendations, the governor's task force on justice reform recommends a number of dramatic changes to stave off a looming state financial crisis, including sharply reducing sentences for nonviolent drug dealers and manufacturers. The report also calls for sweeping changes in the parole system, including allowing many inmates to become eligible for parole after serving a fourth of their sentences. Currently, inmates typically serve about a third of their sentences before becoming eligible for parole for most nonviolent crimes.
Many of the task force's recommendations would require legislative action. The task force is recommending that the penalty for possession of methamphetamine, heroin or crack cocaine with intent to distribute be lowered to zero to five years for nonviolent first-time felony drug offenders, said Jennifer Chance, the governor's general counsel and a member of the task force. It is recommending that the penalty for manufacturing be lowered to zero to eight years.
Possession of methamphetamine with intent to distribute currently carries a sentence of two years to life in prison for a first-time felony drug conviction, while possession of crack cocaine with intent to distribute carries a term of five years to life and heroin seven years to life.
Oklahoma's criminal justice system has exacerbated the state's prison crowding crisis by repeatedly sentencing more nonviolent offenders — particularly drug offenders — to longer terms than neighboring states like Texas and Missouri, the report says. Many states have been far ahead of Oklahoma in reforming their justice systems, the task force found. "Since 2010, 31 states across the country have decreased imprisonment rates while reducing crime rates," the report states.
Reducing Oklahoma prison sentences for nonviolent drug crimes is critical to reversing those trends because nearly a third of all Oklahoma prison admissions are for drug crimes and those prison sentences are often lengthy, the task force said.
Chance said most of the 21 task force members were in agreement with the group's findings, but acknowledged that the two district attorneys on the panel, David Prater and Mike Fields, have strong disagreements with some of the report's recommendations. Prater is the chief prosecutor for Oklahoma County, while Fields is the chief prosecutor for Canadian, Garfield, Blaine, Grant and Kingfisher counties and president of the Oklahoma District Attorneys Association....
If the state cuts prison sentences for drug manufacturing, distributing and trafficking without dramatically increasing funding for drug addiction treatment programs, Prater predicted it will lead to more home and auto break-ins and other crimes. "This is such a dishonest report," Prater said. "It's going to make Oklahoma a much more dangerous place."
Prater said the report's backers like to point to Texas as a state that has simultaneously reduced its incarceration and crime rates through similar justice reforms, but he noted that Texas appropriated $241 million up front in 2007 to pay for a package of prison alternatives that included more intermediate sanctions and substance abuse treatment beds, drug courts and mental illness treatment slots. Unless Oklahoma dramatically increases upfront funding for substance abuse treatment and parole supervision programs, the state's experience is more likely to parallel that of Utah, Prater said.
That state drastically cut sentences without providing sufficient funding for community programs and police officers and judges there have complained about offenders repeatedly being released out on the street with little or no supervision, he said. Critics of Utah's reform efforts have cited the January 2016 slaying of Unified police officer Doug Barney as a reason for re-evaluating changes that were made. Barney's shooter, Corey Henderson, went through the revolving door of prison and many have argued he shouldn't have been out of jail when Barney was killed....
The Oklahoma Attorney General's Office was noncommittal about the report. “The Attorney General's Office was invited to take part in the Oklahoma Justice Reform Task Force, and members of our team were in attendance," Lincoln Ferguson, spokesman for Atty. Gen. Scott Pruitt, said in a prepared statement. "The AG's office takes no position on the merits or demerits of the proposal.”
The full report is an interesting read and is available here at this link.
"Will Gorsuch Be Another Scalia on Criminal Justice Issues? Not Likely"
The title of this post is the headline of this terrific extended commentary at The Crime Report authored by Caleb Mason. The piece does a wonderful job of reviewing many of the criminal jurisprudence highlights of Justice Scalia's three decades on the Supreme Court. And the start and end of the commentary explains why the author does not expect a Justice Gorsuch to be able to fully fill the shoes of Justice Scalia:
What’s the outlook for criminal-justice jurisprudence from the new Supreme Court, if Neil Gorsuch fills the late Justice Antonin Scalia’s seat?
It’s an interesting question, because, as I’ve written here before, Justice Scalia was genuinely idiosyncratic when it came to criminal cases. And the short answer is that Gorsuch won’t be another Scalia on criminal law, because no one can be. Scalia’s influence on criminal jurisprudence was powerful and multifaceted, and cut across the usual left-right voting divide on the Court.
Whether your perspective is defense or prosecution, you can say with conviction that Scalia was the driving force behind some of the best case law and some of the worst case law.
Here are some areas in which Scalia moved the law dramatically. On each of these issues, he argued vehemently for years before lining up the votes to shift doctrine....
In sum, Scalia was unique in his criminal-law jurisprudence. The weird mix of judicial impulses that led to the dramatic shifts in the law listed above is his and his alone. His criminal-law views didn’t predictably track right or left — though his hostility to court-created enforcement mechanisms was terrible for criminal defendants.
So now the question on everybody’s lips is whether Gorsuch is going to be Scalia-esque.
When it comes to criminal procedure and criminal law, I don’t think anyone is. If Judge Gorsuch is confirmed, he’ll have 30 years to forge his own judicial identity. And whoever he becomes on the Court, he won’t be another Scalia.
Some prior related posts:
- Prez Trump notes Judge Gorsuch's law school work on behalf of prisoners and defendants during SCOTUS nomination
- Highlighting the basis for hoping Judge Gorsuch will prove to be like Justice Scalia on some criminal justice issues
Thursday, February 02, 2017
House Judiciary Chair Goodlatte says sentencing reform is part of his agenda
As detailed in this press release, House Judiciary Committee Chairman Bob Goodlatte yesterday discussed his agenda for the 115th Congress in a speech given to the Federalist Society at the National Press Club. Only a small section of the prepared remarks addressed criminal justice and sentencing reform, but what was said was still somewhat encouraging:
The Judiciary Committee also has the solemn responsibility to ensure our laws are fair, efficient, and enforced. Under my leadership, the Committee will continue to advance an agenda that ensures our federal criminal laws are designed to appropriately punish wrongdoers, are effectively and appropriately enforced, safeguard civil liberties, increase public safety, and work as efficiently as possible.
Both Ranking Member Conyers and I remain committed to passing bipartisan criminal justice reform. We must rein in the explosion of federal criminal laws, protect innocent citizens’ property from unlawful seizures, and enact forensics reforms to identify the guilty and quickly exonerate the innocent. We must also reform sentencing laws in a responsible way and improve the prison system and reentry programs to reduce recidivism.
Additionally, it’s imperative that we continually examine federal criminal laws to ensure they protect civil liberties while also providing law enforcement with the tools needed to fight crime and keep us safe.
"The Predictable Disarray: Ignoring the Jury in Florida Death Penalty Cases"
The title of this post is the title of this new paper now available via SSRN authored by Michael Radelet and G. Ben Cohen. Here is the abstract:
Both the United States Supreme Court, and the Florida Supreme Court have now made it clear that the Florida death penalty statutes that have been in use over the past 45 years are unconstitutional. This result has been predicted since the original adoption of the statutes, and made clear by the Supreme Court's decisions in Sullivan v. Louisiana, Apprendi v. New Jersey, and Ring v. Arizona.
How the courts address the 393 prisoners currently on Florida's death row, sentenced to death under an unconstitutional statute, is yet to be determined. This paper reviews the history of the Florida death penalty statutes and provides a census of cases in Florida.
Wednesday, February 01, 2017
Highlighting the basis for hoping Judge Gorsuch will prove to be like Justice Scalia on some criminal justice issues
Leon Neyfakh has this piece at Slate of note headlined "Unlike Trump, Neil Gorsuch Has Shown Flickers of Humanity on Criminal Justice Issues." Here are excerpts:
Donald Trump got himself elected in part by acting not just tough on crime but merciless. The guy loves the police and hates anyone who’s even been accused of breaking the law—thinks they’re disgusting and dangerous and don’t deserve an inch of sympathy no matter the circumstances of their offense. This is what it means to be strong in Donald Trump’s mind—a reflection, it has been persuasively argued by historian Rick Perlstein, of the formative years he spent fearing for his life in New York during the bad old 1970s and ’80s.
So it comes as something of a surprise that his pick for the Supreme Court, Neil Gorsuch, has a judicial track record dotted with flashes of humanity when it comes to issues of criminal justice. There’s the time he dissented from his colleagues about whether it was right for a school police officer to handcuff and arrest a seventh-grader for burping in class. (“My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.”)
There’s the time he argued it was unfair to hold a guy responsible for failing to follow a law he didn’t know he was breaking, a dissenting opinion that began: "People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime. Today, this court votes narrowly, 6 to 4, against revisiting this state of affairs. So Mr. Games-Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land."
Maybe my expectations have sunk too low since Inauguration Day, but even just the premise of those sentences — that putting someone in prison is undesirable and that putting someone in prison who doesn’t deserve to be there is more likely unfair than fine — feels somewhat reassuring.
Also reassuring: a speech Gorsuch gave in 2006 that was being highlighted Tuesday night by the folks at Right on Crime, an organization of conservatives who support criminal justice reform. In that speech, Gorsuch mostly applied his soon-to-be-famous verve to the conservative parlor game of mocking silly federal statutes (“Businessmen who import lobster tails in plastic bags rather than cardboard boxes can be brought up on charges. Mattress sellers who remove that little tag? Yes, they’re probably federal criminals too”). But he also said something that betrays an awareness of just how dangerous it is for prosecutors — federal and otherwise — to enjoy so much discretion that they can pretty much punish anyone they want: “What happens to individual freedom and equality,” Gorsuch asked, “when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”...
But lest you think Mr. American Carnage has chosen a nominee who is some kind of soft-hearted criminal-coddler, consider the Gorsuch decisions flagged Tuesday by Igor Volsky from the Center for American Progress. One of them has Gorsuch declining to provide relief to a defendant who got life in prison without parole because his lawyer threatened to quit his case if he took a plea bargain instead of going to trial. Several others suggest a tendency to side with police officers who have been accused of excessive force—including one who killed a man by shocking him with a Taser to the head during a chase and another who put a 9-year-old who’d stolen an iPad from his school in a “twist-lock.”
"Constitutional Liberty and the Progression of Punishment"
The title of this post is the title of this notable new article authored by Robert J. Smith and Zoe Robinson. Here is the abstract:
The Eighth Amendment’s prohibition on cruel and unusual punishment has long been interpreted by scholars and judges to provide very limited protections for criminal defendants. This understanding of the Eighth Amendment claims that the prohibition is operationalized mostly to prevent torturous methods of punishment or halt the isolated use of a punishment practice that has fallen into long-term disuse.
This Article challenges these assumptions. It argues that while this limited view of the Eighth Amendment may be accurate as a historical matter, over the past two decades, the Supreme Court has incrementally broadened the scope of the cruel and unusual punishment clause. The Court’s contemporary Eighth Amendment jurisprudence — with its focus on categorical exemptions and increasingly nuanced measures of determining constitutionally excessive punishments — reflects an overt recognition that the fundamental purpose of the Eighth Amendment is to protect vulnerable citizens uniquely subject to majoritarian retributive excess.
Animating these developments is a conception of constitutional liberty that transcends the prohibition on cruel and unusual punishment. Indeed, 2015’s same-sex marriage decision, Obergefell v. Hodges, reflects a similar trajectory in the Court’s substantive due process jurisprudence. Taken together, these doctrinal developments illustrate a concerted move to insert the Court as the independent arbiter of legislative excesses that undermine the basic right to human dignity by virtue of unnecessarily impinging upon individual liberty. Ultimately, these liberty-driven developments signal new possibilities for the protection of defendant rights in a variety of contemporary contexts, including juvenile life without parole for homicide offenses, life without parole for non-violent drug offenses, the death penalty, certain mandatory minimum sentences, and the prolonged use of solitary confinement.
Tuesday, January 31, 2017
Prez Trump notes Judge Gorsuch's law school work on behalf of prisoners and defendants during SCOTUS nomination
President Trump lived up to his promise to appoint a judge from his not-so-short lists, and tonight the pick he announced was Tenth Circuit judge Neil Gorsuch. Though I would like to see some more diversity on the High Court, I can never be too disappointed when another graduate from my law school alma mater gets tapped to be a Justice. And, I found really interesting that Prez Trump noted this bit of Judge Gorsuch's history while in law school (with my links added):
This law school history is certainly not evidence that Judge Gorsuch would be likely to vote one way or the other in criminal cases, but I still think it quite notable that the judge has this history and than Prez Trump would stress this history.
In the days ahead, I hope to identify any interesting and notable criminal justice opinions of Judge Gorsuch from his time on the Tenth Circuit over the last decade.
Exactly who should (or are) sentencing fans rooting for as Prez Trump is about to announce his SCOTUS pick?
Regular readers know I have blogged a fair amount about some of the folks on Prez Trump's not-so-short SCOTUS pick list, and some of these prior posts are collected below. According to press reports, a couple of well-established and generally well-regarded circuit judges have emerged as the most likely pick. I now wonder if readers with a special interest in sentencing jurisprudence have a special reason to be pulling for a special candidate. If so, please share who and why in the comments.
Once a pick is announced, I expect to do a little blogging on the nominees' sentencing work even though I expect very few others will be assessing the pick's work in this arena. And, as always, I both welcome and depend on help from readers who might have insights and perspectives that I am sure to miss hanging out in my ivory tower.
A few prior related Trumpian SCOTUS posts:
- Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election
- Which possible SCOTUS pick from the Trump list should sentencing reformers be rooting for?
- Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list
- Prez-Elect Trump says he now has a SCOTUS short list among his not-so-short list of 21
- Circuit judges Diane Sykes and William Pryor reportedly on top of Prez-Elect's SCOTUS short-list
- Reports of now five names atop Prez-Elect Trump's SCOTUS short-list
- "In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes"
- And then there were two: Prez Trump's SCOTUS pick now reportedly between Circuit Judges Hardiman and Gorsuch
"Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences"
The title of this post is the title of this notable new report released today by The Sentencing Project. Here is the first part of the report's Executive Summary:
Amid growing public support for criminal justice reform, policymakers and criminal justice practitioners have begun to scale back prison sentences for low-level, nonviolent crimes. Although the results have been modest — a 5% reduction in the overall U.S. prison population between 2009 and 2015 — this shift follows almost four decades of prison expansion. But so far, criminal justice reform has largely excluded people in prison with life sentences. This growing “lifer” population both illustrates and contributes to the persistence of mass incarceration.
Most people serving life sentences were convicted of serious crimes. Their incarceration was intended to protect society and to provide appropriate punishment. But many were sentenced at a time when “life with the possibility of parole” meant a significantly shorter sentence than it has become today. Many remain incarcerated even though they no longer pose a public safety risk.
Researchers have shown that continuing to incarcerate those who have “aged out” of their crime-prone years is ineffective in promoting public safety. Long sentences are also limited in deterring future crimes given that most people do not expect to be apprehended for a crime, are not familiar with relevant legal penalties, or criminally offend with their judgment compromised by substance abuse or mental health problems. Unnecessarily long prison terms are also costly and impede public investments in effective crime prevention, drug treatment, and other rehabilitative programs that produce healthier and safer communities.
Despite this body of criminological evidence, the number of people serving life sentences has more than quadrupled since 1984 — a faster rate of growth than the overall prison population. Even between 2008 and 2012, as crime rates fell to historic lows and the total prison population contracted, the number of people serving life sentences grew by 12%. By 2012, one in nine people in U.S. state and federal prisons — nearly 160,000 people — were there under life sentences. Two factors have driven this growth: the increased imposition of life sentences, particularly those that are parole-ineligible, and an increased reluctance to grant parole to the 110,000 lifers who are eligible. MO
January 31, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Monday, January 30, 2017
Is VP Pence going to be a key player for possible federal sentencing reform?
The question in the title of this post is prompted by this interesting new Daily Caller article headlined "Want Drug-Sentencing Reform? Look To Mike Pence, Congressman Says. Here are the details:
Criminal-sentencing reform proponents in Congress are “hopeful” that Vice President Mike Pence will be an ally, helping them to work with the new law-and-order administration to pass legislation to cut mandatory minimum sentencing for drug-law offenders. “I’ve got reason to be hopeful,” House Oversight Committee Chairman Jason Chaffetz told reporters at a morning session of the Seminar Network, a large group of wealthy libertarian and conservative donors gathered in Palm Springs by Charles and David Koch....
Speaking to reporters alongside Sen. Mike Lee, also of Utah, Chaffetz said, “Gov. Pence, having been a governor, he understands this. In the end, he’s done some wise things. And I also think you will see concerted support from conservative governors who will buoy up any support in the White House.”
“If you’re going to be tough on crime, you better be smart about it. And there are hardened criminals who do need to spend the rest of their lives in prison.” But, he added, we need to fix the problem of repeat offenders spending years in prison for drug crimes.
Doug Deason, a Seminar Network donor with an interest in sentencing reform, highlighted the White House’s new legislative director, Marc Short, as another reason to be hopeful. Before joining the administration, Short was a longtime adviser to Pence and a lead deputy in the libertarian Koch network. “He cares passionately about criminal justice reform,” Deason said. Deason, a Texas businessman who is president of Deason Capital Services, was less enthusiastic about Sessions, telling reporters, “I’m glad they got him out of the Senate, they got him out of the way!”
Chaffetz defended Sessions, however, pointing to the Fairness in Sentencing Act the Alabama senator shepherded through in 2010, reducing the difference between sentences for crack cocaine and powder cocaine. “I think last year we were caught up in presidential politics… and I think he’s in a different position now,” Chaffetz said....
“We were so close last time,” Lee, a member of the Senate Committee on the Judiciary, lamented to reporters at the seminar.
January 30, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)
Friday, January 27, 2017
"Reducing Violent Crime in American Cities: An Opportunity to Lead"
The title of this post is the title of a notable new report produced by The Police Foundation and the Major Cities Chiefs Association, which is summarized and can be accessed via this web posting. Here is summary via the posting:
While national crime statistics remain historically low, violent crime—particularly homicides and shootings—is rising in many major cities. The Police Foundation and the Major Cities Chiefs Association (MCCA), with generous support from the Joyce Foundation, are jointly releasing a report entitled, Reducing Violent Crime in American Cities: An Opportunity to Lead. The report provides more than 25 recommendations for the new Administration and Congress, to strengthen federal-local partnerships and support local efforts to reduce violent crime.
According to FBI data, the country’s largest cities experienced a 10% increase in homicide and non-negligent murder from 2014 to 2015, and the second largest group of cities saw a 20% surge. More recent data from MCCA suggest these surges in large cities remains steady, with 61 agencies reporting a 10% increase in homicide from 2015 to 2016, and 1400 additional non-fatal shootings over 2015, another important indicator of violent crime. Law enforcement agencies in many of these cities are also reporting substantial increases in non-fatal shootings, another important indicator of violent crime. While the federal government has provided important assistance in recent years, budget and personnel reductions coupled with competing federal priorities leave some local law enforcement agencies without the fortified partnerships they need to effectively combat violent crime. Law enforcement leaders call for a federal agenda that prioritizes violent crime from both a budgetary and policy standpoint, and that addresses problems with evidence-based solutions.
“Major cities aren’t asking for temporary surges of hundreds more federal agents or responses that take months and years to have a sustained impact. They want tools and smart resources like ballistics imaging, gun tracing, and flexible grants,” said Chief Tom Manger, President of the Major Cities Chiefs Association (MCCA). Police Foundation President Jim Bueermann further emphasizes that “federal, state and local law enforcement need strong partnerships and smart, evidence-based, locally-tailored strategies to reverse trends in the number of shootings in many major cities.”
The recommendations in this report create an overarching strategy to address violence by prioritizing violent crime, holding federal partners accountable for local impacts, and enabling the kinds of partnerships that will create lasting solutions. The following items form the basis of the report’s recommendations: analysis of literature on effective violence reduction strategies; in-depth analysis of federal agency programs, budgets, priorities, authorities, and performance; and, survey data and input from local law enforcement executives.