Sunday, October 04, 2015

Highlighting how state education spending decreases as state corrections spending increases

Following on the heels of the Education Secretary urging states to spend less of prisons and more on schools (noted here), this Christian Science Monitor article notes reports on the relationship between different kinds of human capital investments states have made in recent years.  The article is headlined "The hidden costs of funding prisons instead of schools: As state incarceration rates continue to rise across the country, so are cuts in higher education funding."  Here are excerpts (with links from the original):

Lawmakers in 11 states are spending more on prisons and jails than their public colleges, according to a report compiled by the American Academy of Arts and Sciences.  According to the report, state budgets for public universities have been cut about 20 percent since 2008 when recession hit, while funding for prisons has spiked 141 percent.  

That's solving the wrong side of the problem, argued Secretary of Education Arne Duncan during a speech this week. "The linkage between education, or a lack thereof, and incarceration is powerful," he said.  "More than two-thirds of state prison inmates are high school dropouts," said Secretary Duncan, "and an African-American male between the ages of 20 and 24 without a high school diploma or GED has a higher chance of being imprisoned than of being employed."

A 2014 report from the Center on Budget and Policy Priorities (CBPP) shows a direct correlation between increased prison spending and cuts in education. Not surprisingly, states with the highest incarceration rates pull the most money from their schools.  And that drives up tuition at public universities, reports CNN. State funding "accounts for about half of a typical school's budget," CNN reports. "The other half comes from the federal government and tuition and fees."

According to the new AAAS report, the states that spend more on prisons than universities are Michigan, Oregon, Arizona, Vermont, Colorado, Pennsylvania, New Hampshire, Delaware, Rhode Island, Massachusetts, and Connecticut. 

Prior recent related post:

October 4, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Saturday, October 03, 2015

"Why Don’t Courts Dismiss Indictments? A Simple Suggestion for Making Federal Criminal Law a Little Less Lawless"

The title of this post is the title of this notable Green Bag article authored by James Burnham. Here are excerpts from the article's introduction:

Many lawyers are familiar with the problem of overbroad, vague federal criminal laws that ensnare unwary defendants and perplex the lawyers who defend them. It is a recurring theme in academic literature and it featured prominently in Justice Kagan’s recent dissent in Yates v. United States, where she described “the real issue” in the case as being “overcriminalization and excessive punishment in the U.S. Code.”...  [Many commentators] often jump directly to the Constitution as the solution to this problem, specifically the Due Process Clause and an emphasis on fair notice as a way to narrow vaguely worded statutes.

That is a good idea, but it overlooks a tool for combating overcriminalization that is, perhaps, simpler and more readily available than the heavy artillery of constitutional law–making it easier for criminal defendants to secure a legal ruling before trial on whether their alleged conduct actually constitutes a federal crime. Implementing this basic reform would require nothing more than applying the Federal Rules of Criminal Procedure, which already contain provisions for dismissing indictments that are materially identical to the familiar 12(b)(6) standard and the rules for dismissing civil complaints. Yet the same federal judges who routinely dismiss complaints for failure to state a claim virtually never dismiss indictments for failure to state an offense. The judiciary’s collective failure to apply the dismissal standard in criminal proceedings that is a staple of civil practice plays a central role in the ever-expanding, vague nature of federal criminal law because it largely eliminates the possibility of purely legal judicial opinions construing criminal statutes in the context of a discrete set of assumed facts, and because it leaves appellate courts to articulate the boundaries of criminal law in post-trial appeals where rejecting the government’s legal theory means overturning a jury verdict and erasing weeks or months of judicial effort.

Courts should eliminate this anomalous difference between criminal and civil procedure. There is no good reason why federal prosecutors cannot abide by the same pleading standards as civil plaintiffs. That is what the rules already provide. And holding prosecutors to that reasonable standard would go a long way toward making federal criminal law a little less lawless.

October 3, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, October 02, 2015

"What happens when Americans in prison come home?"

The question in the title of this post is a set-up for this terrific podcast now available via Radio Open Source (a weekly arts, politics and ideas public radio out of WBUR Boston). Highlights from the podcast are available at this link, and her is how the website with the podcast describes its context and contents:

We’re going inside the almost invisible world of American prisons, following President Obama and Pope Francis. This month we met and spoke to four survivors of mass incarceration — Azan Reid, Unique Ismail, Douglas Benton, and Marselle Felton — in a church basement in Codman Square, Dorchester.  We asked them: what did prison do, or undo, in you?  What do you see now that you didn’t see then?  And what don’t we know about you?

It’s a story of ambient violence and neglect in Boston’s Mattapan and Dorchester neighborhoods in the 1980s and ’90s.  Twenty years on these men are stuck in the fight of their lives — to beat the odds and stay out of the pipeline back to prison.  Amid it all there’s anger, regret, and wisdom; they’re panicked and hopeful, too.  As a bipartisan group of senators wonder how America might stop being the world’s runaway jailer, we’re looking at hints of an aftermath: what will happen when and if the 2 million Americans presently incarcerated come home?

Pastor Bruce Wall of Global Ministries Christian Church oversaw the discussion and joined us in studio with his impressions.

October 2, 2015 in Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

Top Oklahoma court puts all executions on hold upon state request after drug snafu

As reported in this AP piece, "Oklahoma's highest criminal court unanimously agreed Friday to halt all of the state's scheduled executions after the state's prison system received the wrong drug for a lethal injection this week." Here is more:

The Oklahoma Court of Criminal Appeals granted the state's request and issued indefinite stays of execution for Richard Glossip, Benjamin Cole and John Grant. Oklahoma Attorney General Scott Pruitt requested the stays to give his office time to investigate why the Oklahoma Department of Corrections received the wrong drug just hours before Glossip was scheduled to be executed Wednesday.

Just hours before Glossip was set to die, prison officials opened a box of lethal drugs and realized they received potassium acetate instead of potassium chloride, the third drug utilized in Oklahoma's lethal injection formula. The court ordered the state for status reports every 30 days, "including any proposed adjustments to the execution protocol."

Oklahoma's execution protocols were overhauled after last year's botched execution of Clayton Lockett, who writhed on a gurney and struggled against his restraints before being declared dead more than 40 minutes after the procedure began.

On Thursday, Oklahoma Department of Corrections Director Robert Patton insisted that those new protocols were properly followed. But the attorney general expressed concerns about the department's ability to properly carry out an execution. "Until my office knows more about these circumstances and gains confidence that DOC can carry out executions in accordance with the execution protocol, I am asking the Oklahoma Court of Criminal Appeals to issue an indefinite stay of all scheduled executions," Pruitt said in a statement after requesting the stays.

October 2, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"How to Fight Modern-Day Debtors’ Prisons? Sue the Courts."

EJUL-slide-3The title of this post is the headline of this Marshall Project report on recent litigation brought by Alex Karakatsanis and his Equal Justice Under Law non-profit. Here is the start of the report (with links from original):

A young civil-rights attorney in Washington, D.C., is suing courts across the country for jailing defendants unable to afford their bail, court fines, and probation fees.  As a result, cities in Alabama, Missouri, Mississippi, and Louisiana have recently done away with bail for misdemeanors and traffic violations.

The lawyer, 31-year-old Alec Karakatsanis, has now filed a federal lawsuit against Rutherford County, Tenn. and the private company it contracts with to collect court debts. According to the lawsuit, that company, Providence Community Corrections, ran “an extortion scheme” that “conspired to extract as much money as possible” from people who were threatened with jail time if they couldn’t pay court fees and fines.

PCC is “user funded,” which means the company does not charge the county for its services but depends solely on fees paid for by people on probation.  Some of those fees include “supervision fees,” costs for drug tests and classes, and even a $25 fee for those applying for fee reductions. Before Rutherford County outsourced its probation services to PCC in 1996, the county was only collecting a fraction of fees, PCC State Director Sean Hollis told the Daily News Journal in 2014.

PCC collected over $17 million from probationers in Rutherford County between 2009 and 2014, according to the Daily News Journal. Rutherford County Judge Ben Hall McFarlin told the paper at that time: “The county didn't pay for anyone to get that money," adding that he had never sentenced anyone to jail if their only violation was a failure to pay. "I don't see where the taxpayers would disagree with that.”

The lawsuit was filed on behalf of seven plaintiffs and alleges that indigent defendants in Rutherford County have lost their jobs, houses, cars, and even sold their own blood plasma to make payments and avoid jail time.

“Everything about this scheme is in flagrant violation of U.S. constitutional law, federal law, and even specific Tennessee law,” Karakatsanis told The Marshall Project. In Tennessee, it’s illegal to imprison a person over court debt.  

The suit was brought under a federal anti-corruption law accusing PCC and Rutherford County of operating a “racketeering enterprise” that misuses “the probation supervision process for profit.” A spokesman for PCC, Jeff Hahn, wrote in a statement that PCC's "mission is to encourage people to complete their probation successfully per the terms set by the courts." He added that "in each of the states we serve, we steadfastly comply with the laws governing the probation system."

It’s just the latest salvo from Karakatsanis, who helped start Equal Justice Under Law, a nonprofit civil-rights organization. Karakatsanis and co-founder Phil Telfeyan, 32, started their organization in 2014 with a grant from their alma mater, Harvard Law School, in order to challenge inequalities in the criminal justice system. The organization often works in partnership with local attorneys and nonprofits.

In November 2014, the city of Montgomery, Ala., agreed to terminate its contract with a private probation company as part of a settlement with Equal Justice Under Law.  The lawsuit alleged that indigent people in Montgomery were being jailed over their inability to pay their court debts.  Similar lawsuits were filed in 2015 against municipal courts in Ferguson, Mo., Jennings, Mo. and New Orleans, La., although those cities do not rely on private probation companies to collect debts.

Equal Justice Under Law has also sued six jurisdictions over their bail systems, and all six no longer require defendants to pay bail as a condition of their release. The organization filed a seventh lawsuit, in Calhoun, Ga., in early September.

October 2, 2015 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Thursday, October 01, 2015

Can and should the US Sentencing Commission try quickly to help everyone take stock of the SCRA 2015?

I am about to go off-line for the afternoon in order to (try to) read closely the full text of the Sentencing Reform and Corrections Act of 2015 (SRCA 2015) which was introduced today by US Senate leadership.   The full bill, which runs 141 pages and is available at this link, has so many notable parts;  I am already struggling to figure out what is what and to assess the good, the bad and the ugly of what can be found in this massive legislative proposal.  Moreover, without some basic (and not-so-basic) data about how many past, present and future federal cases could be readily impacted by various provisions, it is hard to know which are the most consequential elements of the bill from just a basic reading to the SRCA text .

Ergo, the question in the title of this post, which jumped into my head as I started to think about what to think about SRCA 2015.  I am sure it would take a very long time for the US Sentencing Commission to do a comprehensive analysis of all that appears in the SRCA 2015.  But I suspect the USSC and its terrific research staff might be able to compose quickly one of its terrific "Quick Facts" publications to aid those of us trying to better figure out what needs still be to figured out about this massive bill.

Notably and fittingly, in the press event announcing the SRCA 2015, Senator Chuck Schumer astutely described the sentencing and prison reform problem as a kind of Rubik's Cube with lots of interlocking and moving parts.  I am sincerely hopeful the US Sentencing Commission will commit itself in the days ahead to helping all of us fans of federal sentencing reform better figure out whether and how the different-colored pieces of the proposed SRCA 2015 match up.

Today's prior related posts:

October 1, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (5)

SCOTUS grants review in 13 new cases, including capital and federal sentencing appeal issues

As reported here by Lyle Denniston at SCOTUSblog, the Justices of the US Supreme Court today officially added a baker's dozen of new cases to its merits docket via this order list.  One of the grants is a capital case from Pennsylvania that is already garnering media attention, and these excerpts from the SCOTUSblog posting suggests there is a lot of interesting new matters for criminal justice fans to consider:

The judicial disqualification case the Court will hear (Williams v. Pennsylvania) will give the Court a chance to clarify when the rights of an individual are violated when a member of a state supreme court joins in ruling on a case in which that judge has been accused of bias because of a former role in the case.

Four years ago, in its decision in Caperton v. A.T. Massey Coal Co., the Court ruled that it violates constitutional due process when a member of the West Virginia Supreme Court cast the deciding vote in a case in which the judge had accepted large campaign donations from the mining company involved in the case.

One of the issues that the Court agreed to consider in the new Pennsylvania case is whether that precedent on judicial qualification also applies when the challenged judge did not cast a deciding vote. The judge involved — then Pennsylvania’s chief justice, Ronald D. Castille (who has since retired) — joined in a unanimous ruling by the state supreme court that reinstated a death sentence for a Philadelphia man, Terrance Williams.

Williams, then eighteen years old, was convicted in 1986 of murder, robbery, and criminal conspiracy in the killing of Amos Norwood and was sentenced to death. Williams contended that Norwood was a sexual predator who had preyed on underage boys, including Williams at the age of thirteen.

Later, when Williams case went before the state supreme court, his lawyers sought to have Chief Justice Castille disqualified, arguing that he had as a Philadelphia prosecutor authorized the decision to seek a death sentence for Williams, voiced strong support for the death penalty when running for a seat on the state supreme court and cited Williams’s case as an example of his “tough on crime” record. The case before the state’s highest court involved a claim that prosecutors had withheld evidence that would have aided in Williams’s defense. The state court rejected that challenge. The chief justice denied the recusal motion without explanation, and refused Williams’s request to refer it to the full court.

The commonwealth government of Puerto Rico gained Court review Monday of its claim that, since Congress gave it self-governing powers in 1950, it has the power to pass its own laws as a sovereign government, like any state in the Union. Thus, it argued, its legislature has full authority to pass criminal laws. And, as is important in this case, it has the independent right to prosecute someone for a crime even if the federal government has already prosecuted that same crime.

That argument was rejected by Puerto Rico’s Supreme Court, which concluded that Puerto Rico and the federal government were part of the same sovereignty — that of the United States. Puerto Rico, it decided, gets its power to legislate from Congress. Because the two governments are not separate sovereigns, the court declared, it would violate the Constitution’s ban on double jeopardy for a person to be tried by both Puerto Rico and federal prosecutors.

The case (Puerto Rico v. Valle), although focused on the double jeopardy issue, will apparently required the Court to decide just what constitutional significance to assign to the 1950 law on which Puerto Rico based its claim of sovereign powers....

In the other nine cases that the Court accepted for review, the questions are summarized as follows:

Utah v. Strieff — if police learn about an outstanding arrest warrant during a street or traffic stop that turns out to have been illegal, does the Fourth Amendment bar the use of any evidence obtained as a result of a search at the time of the arrest....

Duncan v. Owens — does it violate federal habeas law for a judge during a criminal trial to state a position on the accused person’s motive, based on evidence not introduced at the trial.

Taylor v. United States — must the government in a case under the Hobbs Act prove that robbery of a drug dealer does actually affect interstate commerce.

Molina-Martinez v. United States — what effect should a federal appeals court give to a district court’s ruling applying the wrong Sentencing Guideline range to a convicted individual.

October 1, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Basic elements of Sentencing Reform and Corrections Act of 2015

As I write this, I am watching (at this link) the tail end of speeches being given by a series of US Senators discussing their pleasure and thanks concerning the bipartisan agreement to propose the Sentencing Reform and Corrections Act of 2015 (which I will start calling SRCA 2015).  Here are links to two documents provided by the Senate Judiciary Committee summarizing what appears in this bill:

Here ais the full text of the summary document:

WOWSA!!  And the more detailed section-by-section analysis suggests that lots and lots of badly over-sentenced federal offenders subject to extreme mandatory minimum sentencing provisions in not-so-extreme cases (including folks I have represented or filed amicus briefs on behalf of like Weldon Angelos and Edward Young) might be able to get retroactive relief if this legislation becomes law!!  Thus, to summarize, just the introduction of SRCA 2015 is a huge development, and I strongly believe its provisions can will significantly reshape the federal sentencing and prison system if (and I hope when) it becomes law.

Though I will still need to see the precise text before I will be in a position to really assess all that appears in this bill, these summary documents confirm my hope that this bill was likely to be among the biggest and most ambitious federal sentencing reform efforts we have seen since the enactment of the Sentencing Reform Act more than three decades ago.  Mega-kudos to all involved, Senators and staffers and advocates of all stripes, and now let's see if all the good mojo that this SRCA 2015 represents might get this bill through the Congress in the coming weeks!!

UPDATE The full text of the SRCA runs 141 pages, and the folks at FAMM have it available at this link.

October 1, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Montgomery wards: might SCOTUS decide it lacks jurisdiction to resolve juve LWOP retroactivity case?

As noted in this prior post, I am doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana in large part because I find the substantive issues that surround Eighth Amendment retroactivity so dynamic and interesting.  But, critically, the Justices ordered briefing on a preliminary question for consideration in the Montgomery case: "Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?"  

I have a terrific research assistant drafting summaries of various amicus briefs submitted in Montgomery (all of which can be found via this SCOTUSblog page).  Here is how he summarized and assessed this amicus filing which was requested by the court to make the argument against jurisdiction: 

The United States Supreme Court appointed Willkie Farr & Gallagher LLP (“WFG”) to file an amicus brief arguing that the Court lacks jurisdiction to address the merits of whether or not Miller applies retroactively in state collateral proceedings.  That is, the Court has charged WFG with the task of arguing that the Louisiana Supreme Court’s decision that Miller does not apply retroactively cannot be reviewed by the Court.

WFG’s amicus brief argues against the Court’s jurisdiction in two steps.  First, WFG argues that whether or not Miller is retroactive in the state collateral review context can only present a federally reviewable issue if Teague is binding in such proceedings.  Second, WFG argues that Teague is not binding in state collateral review proceedings because its holding was predicated upon a federal statute and nothing more.  Consequently, Montgomery presents no question of federal law and so any opinion on the merits of the Miller retroactivity issue would be only advisory (or so goes WFG’s argument).  Thus, the Court lacks jurisdiction to address the Miller retroactivity issue in Montgomery, at least in the case’s present procedural posture.

WFG’s argument turns entirely on the way in which the Louisiana Supreme Court adopted Teague some 23 years ago in a case called Taylor v. Whitley, 606 So. 2d 1292 (La. 1992). In that case, the Louisiana Supreme Court, in addressing the retroactive application of new constitutional rules, stated:

[W]e have yet to consider the issue of retroactivity on collateral review in light of Teague.  We now do so and adopt the Teague standards for all cases on collateral review in our state courts.  In doing so, we recognize that we are not bound to adopt the Teague standards. [. . .] [W]e now adopt Justice Harlan’s views on retroactivity, as modified by Teague and subsequent decisions, for all cases on collateral review in our state courts.  Taylor, 606 So. 2d at 1296–97.

WFG argues that since the Louisiana Supreme Court expressly held that it was “not bound to adopt the Teague [retroactivity] standards,” its subsequent retroactivity decisions, while based entirely on Teague and its progeny, do not “fairly appear[] to rest primarily on federal law or be interwoven with federal law” such that the presumption of federal jurisdiction articulated in Michigan v. Long, 463 U.S. 1032, 1044 (1983), applies.

While this is surely one reading of Taylor, it is a narrow one.  The argument can be made (and was made by both parties in this case, see Brief of Court-Appointed Amicus, Montgomery v. Louisiana, (No. 14-280), at 10) that the Court does have jurisdiction under the Long presumption.

Taylor supports this argument.  The Taylor court states throughout its opinion that it is closely following and examining the federal case law on retroactivity.  See Taylor, 606 So. 2d at 1293 (“In order to address the issue of retroactivity, we begin by tracing the evolution of the United States Supreme Court’s decisions in this area.”).  Further, while the Taylor court stated that it did not feel compelled to adopt the Teague standards, it definitively held that it was adopting those standards and was doing so “as modified by ... subsequent decisions” for all cases in Louisiana under collateral review.  Id. at 1297.  In this way, Taylor supports the notion that Louisiana state law does not just “rest primarily on federal law” and is not just “interwoven with federal law,” but evolves with federal law in a expressly lock-step manner.

As a consequence, Louisiana law vis-à-vis retroactivity in state collateral review proceedings is (arguably) federal law vis-à-vis retroactivity in federal collateral review proceedings as expressed by Teague and “subsequent decisions.”  Accordingly, if ever the presumption of jurisdiction embodied in Long applied in a case, this would be the case.  To be fair, WFG’s argument is unsurprising given its task. Nonetheless, it will in all likelihood be a minor opening act to the main event during oral argument.

I share my RA's sentiment that it is very unlikely a majority of the Supreme Court will decides it lacks jurisdiction in Montgomery, and I suspect relatively little of the oral argument will be focused on this issues. But I suspect the Chief Justice (and perhaps a few other Justices) may be eager to use Montgomery to contend that state courts are never obligated to apply any part of the Teague doctrines that now control federal court retroactivity decisions. Consequently, this issue may get more attention in the argument and in the ultimate opinion than some may want.

Prior posts in series:

UPDATE: A helpful reader reminded me it might be useful in this context to remind readers of this prior post which includes this link to a prior article by Steve Sanders on this jurisdictional topic.

October 1, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Lots and lots of good reads from The Atlantic, Reason, and Slate

Busy times on a number of fronts has prevented me from highlighting a number of recent articles from The Atlantic, Reason, and Slate on a range of topics that should be of interest to sentencing fans. In an effort to catch up, I will just here note headlines and provide links (and urge readers in the comments to idenitfy which pieces they think perhaps merit added attention).

Recently from The Atlantic:


Recently from Reason:


Recently from Slate:

October 1, 2015 in Recommended reading, Who Sentences? | Permalink | Comments (1)

Bipartisan federal sentencing reform bill due to emerge from Senate today

In part because October is my favorite month, I am likley to remember that a potentially historic federal sentencing reform bill emerged from behind the Senate negotiating curtain on the first day of October 2015.  This New York Times article, headlined "Senators to Unveil Bipartisan Plan to Ease Sentencing Laws," previews some of what we should expect to see in the bill.  Here are excerpts:

A long-­awaited bipartisan proposal to cut mandatory prison sentences for nonviolent offenders and promote more early release from federal prisons is scheduled to be disclosed Thursday by an influential group of senators who hope to build on backing from conservatives, progressives and the White House.

The comprehensive plan, which has the crucial support of Senator Charles E. Grassley, the Iowa Republican who heads the Judiciary Committee, is the product of intense and difficult negotiations between Republicans and Democrats who hope to reduce the financial and societal costs of mass incarceration that have hit minority communities particularly hard.

The push has benefited from an unusual convergence of interests in an otherwise polarized Washington and has become a singular issue that usually warring groups have rallied around. Progressive advocacy groups have embraced the possibility of less jail time and better preparation for offenders when they are released; conservatives have championed the potential savings in reducing prison populations and spending on the strained criminal justice system.

According to those familiar with the still­-secret agreement, the legislation proposes an extensive set of changes in federal sentencing requirements. Those changes include a reduction in mandatory minimum sentencing to five years from 10 for qualified cases; a reduction in automatic additional penalties for those with prior drug felonies; and more discretion for judges in assessing criminal history.

The legislation would also ban solitary confinement for juveniles in nearly all cases, and allow those sentenced as juveniles to seek a reduction in sentencing after 20 years. Many of the new rules could be applied retroactively to people now serving time.

The authors also took steps to deny any new leniency to those who committed serious violent crimes or drug felonies. And the bill would put some new mandatory minimum sentences in place for those convicted of interstate domestic violence or providing weapons or other material to terrorists or certain countries.

Lawmakers hoping for more sweeping changes did not win the across­theboard reductions in mandatory minimum sentences they had sought when the negotiations began. They compromised to win the backing of Mr. Grassley, who in the past has been critical of broad efforts to reduce prison time.

If the authors wish to push the legislation through this year, it will require an aggressive effort and a decision by Senator Mitch McConnell, Republican of Kentucky and the majority leader, to make the measure a priority. The bill is most likely to be considered by the Judiciary Committee this month, with a committee vote possible on Oct. 22. Congressional consideration could also be kicked into 2016....

Backers of a criminal justice overhaul were not aware of the details of the legislative deal, which senators were trying to keep under wraps until the announcement Thursday, but they welcomed the movement toward getting the debate in the public arena.

“This sounds good to us,” said Mark Holden, general counsel for Koch Industries, which has led conservatives in calling for new sentencing laws and is part of the bipartisan Coalition for Public Safety. “It is a good place to start, and hopefully this will be the impetus that gets things moving.”  Holly Harris, the executive director of the U.S. Justice Action Network, another part of the coalition, noted that “the devil is in the details.”

I share the sentiments that this sounds like a pretty good deal and that the devil is really in the details. But, absent the details looking very ugly, I am going to be a vocal and aggressive advocate for this bill because it seems like the only federal sentencing reform proposal with any realistic chance of getting to President Obama's desk while he is still President Obama.

October 1, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (0)

"President Obama and the Power of Mercy"

The title of this post is the headline of this New York Times editorial. Here are excerpts:

The power to grant mercy to someone who is serving an unjustly long sentence is one of the most important constitutional powers a president has to counteract the frequent excesses of the federal criminal justice system.  Between 1885 and 1930, presidents issued more than 10,000 grants of clemency.  But in recent decades the practice has fallen into irrelevance.  Starting with President Ronald Reagan, pardons and sentence commutations have become little more than a lottery or a game of personal connections, often doled out in the waning days of an administration.

Until recently, President Obama was the least merciful president of modern times. In the past year, he has done more — his totals now stand at 89 sentence commutations and 64 pardons.  (A commutation shortens or ends a sentence being served, while a pardon erases the conviction and restores any rights lost as a result.)  This is a step in the right direction, but there are many thousands more in prison who are deserving of executive clemency....

The Office of the Pardon Attorney, a division in the Justice Department, has the job of sifting through tens of thousands of clemency petitions....  [But], the clemency process should be removed from the Justice Department entirely.

The idea has been proposed before, but it is gaining new and notable supporters, including Margaret Love, who served as pardon attorney under Presidents Bill Clinton and George H. W. Bush, and who until recently defended the department’s role.  In a new law review article, however, she says the department is “determinedly and irreconcilably hostile” to clemency.

It should be no surprise that pardon lawyers working in the Justice Department are loath to second-­guess the convictions and sentences obtained by the department’s prosecutors.  The solution, as Ms. Love and others argue, is to move the clemency process into the White House itself, and to give it enough money to operate effectively.  As many states have already discovered, a clemency commission — ideally representing a wide range of perspectives from the justice system — can handle more petitions with greater transparency and predictability than a pardon attorney with a very small staff.

October 1, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, September 30, 2015

Oklahoma Gov grants 37-day "stay" of Richard Glossip's scheduled execution

As detailed in this official press release, "Governor Mary Fallin has issued a 37 day stay of Richard Glossip’s execution to address legal questions raised today about Oklahoma’s execution protocols."  here is the rest of the text of the press release:

The stay will give the Department of Corrections and its attorneys the opportunity to determine whether potassium acetate is compliant with the state’s court-approved execution procedures. 

“Last minute questions were raised today about Oklahoma’s execution protocol and the chemicals used for lethal injection,” said Fallin.  “After consulting with the attorney general and the Department of Corrections, I have issued a 37 day stay of execution while the state addresses those questions and ensures it is complying fully with the protocols approved by federal courts.”
The new execution date will be Friday, November 6.
“My sincerest sympathies go out to the Van Treese family, who has waited so long to see justice done,” said Fallin. 

Amusingly, as noted here by Kent Scheidegger at Crime & Consequences, Gov Fallin technically granted Glossip a reprieve, not a stay, according to the terms of the Oklahoma Constitution. But I suppose we should not expect a Gov or her legal staff to be concerns about such semantics. Intriguingly, as reported here by Lyle Denniston at SCOTUSblog, this order came after the Supreme Court had formally rejected Glossip's various last-minute appeals and stay requests and only Justice Breyer dissented from that decision.

September 30, 2015 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6)

Tuesday, September 29, 2015

Long-awaited bipartisan federal criminal justice reform bill to emerge from Senate this week

A helpful reader alerted me to this notable new NPR story headlined "Bipartisan Criminal-Justice Overhaul Proposal Expected As Soon As Thursday."  Here are the details: 

A bipartisan group of senators on the Judiciary Committee is preparing to unveil a criminal-justice overhaul proposal as early as Thursday, two sources familiar with the deal told NPR.  The plan follows months of behind-the-scenes work by the staffs of Sen. Charles Grassley, the Iowa Republican who chairs the committee, and several other lawmakers representing both political parties.

Senior members of the Obama administration, including the second-in-command at the Justice Department, also have been nudging senators on the sentencing plan, viewing the proposal as one of the capstones of a legacy on criminal-justice issues for this president. Barack Obama famously became the first sitting president to visit a prison in July.

An unusual left-right coalition formed earlier this year to drive action in Congress and in state houses across the country. The Coalition for Public Safety, which includes Koch Industries, the American Civil Liberties Union and others, is said to support the Senate plan, as well, a third source said.

The proposal will not go as far as some reform advocates may like, the sources say. For instance, the plan would create some tough new mandatory minimum sentences, after pressing from Grassley. It stitches together proposals that would allow inmates to earn credits to leave prison early if they complete educational and treatment programs and pose a relatively low risk to public safety along with language that would give judges some more discretion when sentencing non-violent offenders....

Despite the optimism among advocates and lawmakers, it's unclear whether the full Senate has the time to act before the presidential election intensifies. In the House, meanwhile, Reps. Bobby Scott, D-Va., and James Sensenbrenner, R-Wis., are pressing their own legislation, known as the SAFE Justice Act. The two leaders of the House Judiciary Committee, Chairman Bob Goodlatte, R-Va., and John Conyers, D-Mich., are writing their own bills, staff members said.

I am giddy with anticipation to see the specifics of this bill and I am cautiously hopeful that all the time spent working through the details will greatly increase the likelihood that a bill actually makes it through the Senate and perhaps all the way to the desk of Prez Obama.  As I have long said in this space and others, hopeful visions of "the best" possible reform should not stand in the way of any "good" reform that has a real chance of becoming law.  And since just about any reform emerging from a bipartisan deal is likely to have good elements, I am extra hopeful that this news means we getting ever closer to an improvement of existing federal sentencing law and policy.

September 29, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Is the "don't blame the drug war for mass incarceration" counter-narrative problematically incomplete?

As more serious folks have started to take the problem of modern mass incarceration more seriously, I see a couple key narratives about the problem and potential solutions emerging.  The predominant narrative, espoused by Michelle Alexander in The New Jim Crow and by long-time critics of the so-called "war on drugs," is that mass incarceration is principally a product of the drug war and its associated severe sentencing laws.  This narrative always struck me as a bit too simplistic and incomplete. 

Lately an important counter-narrative has taken hold: fueled by prison population data and prosecutorial practices stressed by John Pfaff and a few others, more folks are asserting that the drug war and its severe sentencing laws are not central to mass incarceration and that their reversal is not really a solution to the problems of mass incarceration.  This counter-narrative is today well-explained in this New York Times column by David Brooks.  Here are highlights:  

Pretty much everybody from Barack Obama to Carly Fiorina seems to agree that far too many Americans are stuck behind bars.  And pretty much everybody seems to have the same explanation for how this destructive era of mass incarceration came about.

First, the war on drugs got out of control, meaning that many nonviolent people wound up in prison. Second, mandatory­minimum sentencing laws led to a throw­-away-­the-­key culture, with long, cruel and pointlessly destructive prison terms....

The popular explanation for how we got here, however, seems to be largely wrong, and most of the policy responses flowing from it may therefore be inappropriate.  The drug war is not even close to being the primary driver behind the sharp rise in incarceration. About 90 percent of America’s prisoners are held in state institutions.  Only 17 percent of these inmates are in for a drug­-related offense, or less than one in five.

Moreover, the share of people imprisoned for drug offenses is dropping sharply, down by 22 percent between 2006 and 2011.  Writing in Slate, Leon Neyfakh emphasized that if you released every drug offender from state prison today, you’d reduce the population only to 1.2 million from 1.5 million.

The war on drugs does not explain the rocketing rates of incarceration, and ending that war, wise or not, will not solve this problem.  The mandatory-­minimum theory is also problematic.  Experts differ on this, but some of the most sophisticated work with the best data sets has been done by John Pfaff of Fordham Law School....

His research suggests that while it’s true that lawmakers passed a lot of measures calling for long prison sentences, if you look at how much time inmates actually served, not much has changed over the past few decades.  Roughly half of all prisoners have prison terms in the range of two to three years, and only 10 percent serve more than seven years.  The laws look punitive, but the time served hasn’t increased, and so harsh laws are not the main driver behind mass incarceration, either.

So what does explain it?  Pfaff’s theory is that it’s the prosecutors.  District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges.  Twenty years ago they brought felony charges against about one in three arrestees.  Now it’s something like two in three.  That produces a lot more plea bargains and a lot more prison terms.

I asked Pfaff why prosecutors are more aggressive.  He’s heard theories.  Maybe they are more political and they want to show toughness to raise their profile to impress voters if they run for future office.  Maybe the police are bringing stronger cases.  Additionally, prosecutors are usually paid by the county but prisons by the state, so prosecutors tend not to have to worry about the financial costs of what they do.

Pfaff says there’s little evidence so far to prove any of these theories, since the prosecutorial world is largely a black box.  He also points out that we have a radically decentralized array of prosecutors, with some elected and some appointed. Changing their behavior cannot be done with one quick fix.

Some politicians and activists suggest that solving this problem will be easy — just release the pot smokers and the low­-level dealers.  In reality, reducing mass incarceration means releasing a lot of once-­violent offenders.  That may be the right thing to do in individual cases, but it’s a knotty problem.

Generally speaking, the "don't blame the drug war for mass incarceration" counter-narrative makes important points and is an essential consideration for serious researchers and reform advocates. Pfaff's data highlights critical factual realities that fully justify the essential message that modern mass incarceration is, in Brooks' phrase, a "knotty problem."

But I fear that the counter-narrative is also too simplistic and incomplete as it fails to consider sufficiently how the the drug war and associated sentencing laws remain at the beating heart of the mass incarceration knot.  In my view, federal and state prosecutors were only able to become "more aggressive" in recent decades because the drug war and associated severe sentencing laws made their jobs much, much easier in various ways.  The relative simplicity of securing drug convictions (and of threatening severe sanctions for those who fail to plea and cooperate) has made it much, much easier for prosecutors to turn more arrests for drugs and many other crimes into many more charges and convictions.   (Tempered constitutional limitations on police, prosecutors and severe sentences through the Rehnquist Supreme Court era is also a part of this story, which I also think can and should be linked directly to the drug war.)

This chart has charging data for the federal system from 1982 to 2010, and it shows federal the number criminal cases commenced (i.e., when federal prosecutors brough charges) doubling from under 33,000 in 1982 to 67,000 in 2002.  During those two decades, the number of drug cases commenced jumped from 4,200 in 1982 to over 19,000 in 2002.  In my view, the drug war and severe federal sentences not only significantly accounted for why federal prosecutors had the ability/resources to bring 15,000 more drug cases in 2002 than in 1982, but it also significantly contributed to why federal prosecutors had the ability/resources to bring 15,000 more other federal criminal cases in 2002 compared to 1982.  I think we would see somewhat similar dynamics playing out in many states during this period, and the federal data further shows that once prosecutors got really good at bringing lots of charges thanks to the help of the drug war, they became consistently adept at bringing lots more of other charges even as the number of drug prosecutions started to level off.

I make these points not to contend that "ending the drug war" (whatever that means) and/or repealing all mandatory minimums will alone "solve" the problem of mass incarceration.  The counter-narrative remains very important in highlighting that modern incarceration levels in the US are a complicated matter requiring complicated solutions.  But I am now growing concerned that, especially as the counter-narrative grows in significance, serious researchers and reform advocates may sometimes under-appreciate how critical the drug war and associated sentencing laws have been as the source of many troublesome elements in the growth of criminal justice expenditures and significance over the last four decades.

September 29, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

#BESTEA: "Will the Supreme Court 'peck away at' capital punishment?"

The title of this post is has my silly new SCOTUS hashtag along with the headline of this new ABA Journal article previewing the death penalty cases that the Supreme Court will hear in the next few weeks as it starts #BESTEA.  (This silly hashtag is explained in this prior post.)  Here is an excerpt:

On Oct. 7, the court will hear arguments in cases from Kansas that raise procedural questions. The key question is whether the Eighth Amendment requires that a jury considering a death sentence be given explicit instructions pointing out that mitigating circumstances do not have to be proven beyond a reasonable doubt.  The Kansas Supreme Court concluded that such an instruction was required, and the state asked the U.S. Supreme Court to review Kansas v. Gleason and Kansas v. Carr.

On Oct. 13, the justices are scheduled to hear arguments in Hurst v. Florida, another case that addresses death penalty sentencing procedures. In Florida, a defendant may not be sentenced to death without a factual finding of at least one aggravating factor.  The jury weighs aggravating and mitigating factors, and it makes a recommendation to the trial judge about whether death should be imposed.  The jury’s recommendation need not be unanimous.  But Florida law also requires the judge to independently weigh aggravating and mitigating factors.  The judge must give the jury’s recommendation “great weight” under state precedents, but he or she can override the recommendation in extraordinary circumstances.

September 29, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

"Heroin, Murder, and the New Front in the War on Drugs"

DownloadThe title of this post is the headline of this lengthy and effective new Vice article.  Here are excerpts:

It can be tough to find a true villain among the legions using and selling opioids, two groups that often overlap. This is especially true given that for many, heroin use was preceded by the abuse of widely-prescribed opioids like OxyContin, which as of 2013, was responsible for more deaths than heroin....

But prosecutors across America are dusting off old statutes to pursue full-fledged murder charges against dealers and even fellow users and friends who pass or sell heroin to a person who then dies of an overdose. Possible sentences include life without parole. The law-and-order crackdown is taking place at a moment when prominent figures in both major parties are, for the first time in decades, seriously considering reducing a jail and prison population that has grown to well more than 2 million — and curbing a war on drugs that has persistently failed to dampen the appetite for the stuff....

So far, the number of such charges that have been filed, and the criteria by which prosecutors are deciding to use them, remain murky. The phenomenon has received little attention from legal scholars and activists, and the charges have surprised defense lawyers who end up handling the cases....

So far, it seems like plenty of smalltime hook-ups are getting caught in the fray. In September 2013, Joseph L. Robinson, an Illinois man living near near St. Louis, was sentenced to 20 years in federal prison for selling a man who later died two-tenths of a gram of heroin — for $30. Jim Porter, a spokesperson for Southern District of Illinois US Attorney Stephen Wigginton, says there was nothing else that made the crime particularly heinous. If there had been, he says, the sentence could have been even longer.

The prosecutions also run counter to the widespread adoption of harm-reduction policies like equipping first responders with the overdose-reversing drug naloxone, as well as "good Samaritan" laws, which offer limited legal protection to people who call 9-1-1 to report a drug-related medical emergency. But those laws typically offer immunity from low-level possession charges and not for drug dealing, according to the National Conference of State Legislatures — let alone for drug-related murder charges. Prosecutors hope that harsh charges will deter dealers and keep drugs away from users, but they could also convince drug addicts to flee the scene and leave someone dying on the floor.

The charges could even encourage violence on the part of dealers determined to silence informants. "To bring punitive criminal justice responses to these situations will not prevent the underlying concern and will likely only exacerbate the situation due to those involved not speaking to police or emergency personnel, or even becoming violent to avoid such charges," Art Way, Colorado director for the Drug Policy Alliance, an organization critical of the drug war, writes in an email. "Much of the violence involved in and around the drug trade involves the intimidating or killing of informants or those considered to be informants."...

In the Cleveland and Toledo area, Steven Dettelbach, the US Attorney for the Northern District of Ohio, is charging dealers under a federal law that potentially carries a 20-year mandatory minimum sentence for a drug-dealing offense resulting in death or serious injury—and mandatory life for someone with a prior felony drug conviction. In Cuyahoga County, there were 198 heroin-related deaths in 2014, according to the Northeast Ohio Media Group. "Federal penalties are extremely serious, and the people who are out there dealing what amounts to poison need to get the message that this is going to be treated like a homicide," Dettelbach tells VICE in an interview.

Though former Attorney General Eric Holder instructed federal prosecutors to pursue harsh mandatory minimums more judiciously in 2013, that doesn't mean they won't seek long sentences for drug crimes, according to Dettelbach. Rather, he says his office is focusing such charges on the most serious of offenders, particularly those dealing heroin mixed with the powerful synthetic opioid fentanyl, which has been linked to many overdose deaths. "The fentanyl issue is actually now becoming more acute than the straight heroin issue," Dettelbach says. "In my mind, I will just tell you it's hard to be a dealer in fentanyl and claim that you don't know its going to kill some people."

Federal prosecutors in states around the country, including Oregon, Texas, Pennsylvania, and West Virginia, are filing these kinds of charges in response to opioid deaths. In Southern Illinois, Porter says that their office began to file such charges after Wigginton's 2010 appointment, and that he has so far won 11 convictions. In July, a federal judge in Kentucky sentenced a man to life without parole for dealing oxycodone to a user who died; that district's US Attorney's Office said it was "the first time in Kentucky that a life sentence was imposed in an overdose death case involving prescription drugs."...

State prosecutors also appear to be pursuing harsh charges with growing frequency. In Wisconsin, prosecutors charged 71 people with first-degree reckless homicide by drug delivery in 2013, an increase from 47 in 2012, according to USA Today.

In New Jersey, Ocean County Prosecutor Joseph Coronato has made these sorts of charges a focus, and his office is training police around the state on how to investigate heroin-related deaths. "We kind of call it our checkmate charge," says Al Della Fave, a spokesperson....

State and federal laws don't limit these charges to major dealers, or to those who act with malicious intent. In New Orleans, Chelcie Schleben and her reported ex-boyfriend Joshua Lore currently face life without parole for the February 2014 fatal overdose "murder" of 23-year-old Kody Woods. The charges are severe "even by extreme Louisiana standards," says Stephen Singer, a professor at Loyola Law School and Schleben's lawyer.

Louisiana already has the highest number of nonviolent offenders serving life without parole, according to a 2013 American Civil Liberties Union report, and state drug sentences tend to be extraordinarily harsh. Last year, Governor Bobby Jindal signed legislation lengthening the possible sentence for repeat heroin dealers to 99 years.

In Charleston, West Virginia, prosecutors have charged Steven Craig Coleman with murder in connection with a February heroin-related death. Rico Moore, Coleman's lawyer, is mystified by the charges. "He's a drug user," Moore says. "He's not as they allege—he's not a drug dealer... It makes absolutely no sense to punish someone who's an addict." According to Moore, Coleman's opioid addiction stems from his abuse of lawfully-prescribed drugs. Coleman is poor, he says, his mother died from drug use, and his father is an addict....

In Ohio, prosecutors don't yet have the ability to seek the harshest penalties available under state law for these deaths—but they want them. Last September, Hamilton County Prosecutor County prosecutor Joseph T. Deters announced involuntary manslaughter charges for involvement in a fatal intoxication, the first time, according to their office, such charges had been filed in county history. Deters took the opportunity to complain that the the law should "be strengthened to allow us to charge these kinds of cases as murder... If the law is changed, drug dealers would then be facing the possibility of life in prison for selling the drugs that take too many lives."

Last year, legislation to that effect passed the state house in Ohio with Attorney General Mike DeWine's enthusiastic support. Republican State Rep. Jim Butler, who introduced the legislation, plans to reintroduce a bill altered to better ensure that mere users are not the ones prosecuted for deaths. But he wants to tack on an increase in sentences for drug trafficking as well. "I think what we need to do is be tougher on drug traffickers and be more compassionate to drug users," he says.

September 29, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Monday, September 28, 2015

Are we about to start the #Best Ever SCOTUS Term for Eighth Amendment?

The silly question in the title of this post is my effort to coin a silly hashtag (#BESTEA = Best Ever SCOTUS Term for Eighth Amendment) for the start of a new Supreme Court Term in which a number of notable Eighth Amendment cases/issues are set to occupy the Justices.  Over at SCOTUSblog, Rory Little provides this effective preview of what #BESTEA is all about in this lengthy post titled "As the 2015 Term opens: The Court’s unusual Eighth Amendment focus."  I recommend reading Rory's post in full, and here is just a taste (with links from original):

Last June, the Supreme Court’s Term ended not with the same-sex marriage opinions (announced three days earlier), but rather with Justice Stephen Breyer’s surprising and comprehensive opinion (joined by Justice Ruth Bader Ginsburg) in Glossip v. Gross, which announced that both Justices now “believe it highly likely that the death penalty violates the Eighth Amendment.”  Justice Antonin Scalia responded that if the Court were to grant merits review on that question, then he correspondingly “would ask that counsel also brief whether” longstanding Eighth Amendment precedents, “beginning with Trop [v. Dulles (1958)], should be overruled.”  Meanwhile, in the Glossip argument, Justice Samuel Alito had candidly described the many aspects of capital litigation as “guerilla war against the death penalty,” while Justices Sonia Sotomayor and Elena Kagan had remarked that the Court was being asked to approve an execution method akin to “being burned alive.”   Needless to say, the Justices are deeply divided about the meaning and application of the Eighth Amendment’s “cruel and unusual punishment” clause.

 Which makes it all the more interesting that in the Term that will open on October 5, five of the thirty-four cases in which the Court has granted review involve Eighth Amendment issues, four of them the death penalty.   All five cases will be argued in the first three argument weeks of the Term (four in October, and the fifth on November 2).  One can expect that the smoldering embers of the Glossip debate will be quickly reignited.  This Term may be the biggest Eighth Amendment term in forty years (since Gregg v. Georgia in 1976).

Here is a quick rundown of what is coming up:

1. Gleason and Carr — October 7...

2. Kansas v. Carr and Carr (Question 2) — October 7...

3. Montgomery v. Louisiana  — October 13...

4. Hurst v. Florida  — October 13...

5. Foster v. Chatman (Warden)  — November 2... 

After the Justices’ “long Conference” on September 28, at which they will address hundreds of cert petitions that have piled up since the summer recess began, the Court will announce review in a number of new cases of great import.  Some may well divert attention from what appears to be an unusual focus on Eighth Amendment cases and questions.  But the granting and argument of five Eighth Amendment cases to open the Supreme Court’s 2015 Term signals, I think, the deep cultural (as well as economic and federalism) concerns that Americans in general seem to have regarding capital punishment.  In at least some of these cases — with that of the Carr brothers being the best example — there seems to be no doubt about guilt.  The horrific character of multiple rapes and murders is undeniable.  Yet in Carr, while affirming the defendants’ guilt, the Kansas Supreme Court nonetheless found reason to vacate their death sentences.  Such cases thus starkly showcase the divergent views on the Eighth Amendment — and a nine-Justice Court is not different in this regard from much of America.  So stay tuned for what may be the most dramatic Supreme Court discussion of Eighth Amendment values since its re-affirmation of capital punishment statutes long before the Justices’ law clerks were born.

In part because I want a short-hand way to describe all these cases, and in part because I am a sill fool, I am likely to turn #BESTEA into an on-going meme in this bloggy space as the Supreme Court Term kicks off. If readers like the idea, I hope folks will tell me so in the comments and perhaps join me in using this short-hand. And if you hate the idea, perhaps I will grow to as well.

September 28, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Papal prison priorities: "to care for wounds, to soothe pain, to offer new possibilities"

092715-wpvi-pope-bishop-prison-3-IMGThis local story reports on the messages Pope Francis delivered to prisoners and to all of us society as he visited a local jail during his last day of his trip to the United States.  Here are some details of the visit:

In one of Pope Francis' most anticipated visits on his first trip to the United States, the pastor pope who has made prison reform one of his top priorities did what few in power ever do: He likened himself to criminals. "All of us need to be cleansed, to be washed," Pope Francis said. "And me in first place."

After arriving at the prison on State Road near Rhawn Street via helicopter, Pope Francis walked into the prison's gymnasium to a standing ovation.  "I am here as a pastor, but above all as a brother, to share your situation and make it my own," he said.

Attending the pope's speech were male and female inmates from across the Philadelphia Prison System, their families, prison employees, and local officials. Also present were relatives of Patrick Curran and Robert Fromhold, the former Holmesburg Prison warden and deputy warden, for whom the prison is named — both murdered in the line of duty by Holmesburg inmates in 1973.

Sunday's prisoners were chosen not for their crimes or alleged offenses — which ranged from murder to assault — but rather for their behavior while in custody and their good attendance in prison programs and services.

Several prisoners in the carpentry division of PhilaCor, the prison's job-skills program, even built a 6-foot walnut chair that they gave to Pope Francis. "The chair is beautiful," the pope said. "Thank you very much for the hard work."

Pope Francis began his speech — which he delivered in Spanish — by criticizing countries that are complacent to people in anguish. While not directly naming the United States - which has 25 percent of the world's inmates but only 5 percent of its population - his message was clear.  "Any society, any family, which cannot share or take seriously the pain of its children and views that pain as something normal or to be expected, is a society condemned to remain a hostage to itself, prey to the very things which cause that pain," he said.

Pope Francis spent a good portion of his 15-minute speech talking about how Jesus washed the feet of his disciples because the dirty roads during that time made their feet "dusty, bruised, or cut."  Francis himself has washed the feet of prisoners on more than one occasion since his papacy began, but did not do so Sunday.  "Life means getting our feet dirty from the dust-filled roads of life and history," he said.

But above all, what Jesus wants is for our journeys to continue, the pope said. "He wants us to keep walking the paths of life, to realize that we have a mission, and that confinement is not the same thing as exclusion," he said, and a prisoner applauded.

Just as he did in his speech to Congress on Thursday, Francis underscored the need for hope and rehabilitation in every punishment.  "It is painful when we see prison systems which are not concerned to care for wounds, to soothe pain, to offer new possibilities," he said.

Francis ended his talk to the prisoners by asking that they look to Jesus. "He comes to save us from the lie that says no one can change," the pope said.  After his speech, the pope greeted each prisoner and family members individually.  Some wept; a few embraced him. Others requested a blessing, which he provided by gently laying his hand atop their heads and praying. As he walked among the prisoners, aides followed behind and gave each a photo of the pope and a white rosary that was neatly tucked into a burnt-sienna plastic envelope with the papal crest on the front.

At the request of the prisoners, before Pope Francis left, he blessed them and their rosaries. "May God bless and protect you and may his grace shine upon you," he said. "And may he grant you peace."

A few prior related posts about visit of Pope Francis and his criminal justice perspectives:

September 28, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (1)

"The Real Roots of ’70s Drug Laws"

The title of this post is the headline of this new notable New York York Times commentary by Michael Javen Fortner.  Here are excerpts:

The number of black males killed by police officers continues to rise: Michael Brown, Eric Garner, John Crawford III, Ezell Ford, Akai Gurley, Tamir Rice.  But many more still die at the hands of black neighbors instead of the police.  Yet today we rarely ask politicians to speak their names or recognize their dignity and worth.

That’s because some consider talk of black­-on-­black violence a distraction.  This is a natural outgrowth of the view that the over­-policing of urban neighborhoods and the scourge of mass incarceration are all the result of a white­-supremacist social order, the “New Jim Crow,” born of white backlash against the civil rights movement.  But this is too convenient a narrative.  It erases the crucial role that African-­Americans themselves played in the development of the current criminal justice system.

Today’s disastrously punitive criminal justice system is actually rooted in the postwar social and economic demise of urban black communities.  It is, in part, the unintended consequence of African-­Americans’ own hard­fought battle against the crime and violence inside their own communities. To ignore that history is to disregard the agency of black people and minimize their grievances, and to risk making the same mistake again.

The draconian Rockefeller drug laws, for example, the model for much of our current drug policies, were promoted and supported by an African-American leadership trying to save black lives.  During the 1960s, concentrated poverty began to foster a host of social problems like drug addiction and crime that degraded the social and civic health of black neighborhoods.  After the Harlem riots of 1964 (which erupted following the shooting of a 15-­year-­old black male by a white cop), polls showed that many African­-Americans in New York City still considered crime a top problem facing blacks in the city, while few worried about civil rights and police brutality....

In 1969, the Manhattan branch of the N.A.A.C.P. issued an anti­crime report that railed against the “reign of criminal terror” in Harlem. It warned that the “decent people of Harlem” had become the prey of “marauding hoodlums” and proposed that criminals, including muggers, pushers, vagrants and murderers, be subjected to steep criminal sentences. The civil rights organization reaffirmed its battle against police brutality, but added, “We favor the use of whatever force is necessary to stop a crime or to apprehend a criminal.” Vincent Baker, the author of the report, testified that “the silent majority in Harlem would welcome a police order to get tough.” He even advocated for a “stop and frisk” policy.

Harlem business leaders supported stricter law enforcement and harsher punishments for criminals. In 1973, nearly three­-quarters of blacks and Puerto Ricans favored life sentences for drug pushers, and the Rev. Oberia Dempsey, a Harlem pastor, said: “Take the junkies off the streets and put ’em in camps,” and added, “we’ve got to end this terror and restore New York to decent people.  Instead of fighting all the time for civil rights we should be fighting civil wrongs.”...

Four decades later, the decline in violent crime has created the space for a new reform discourse — a Black Lives Matter movement that is fighting for much needed change.  But, as we rightly rethink punishment, it would be a mistake to ignore crime, both its origins and its effects.  Yes, we need robust government action, including economic development, job training programs and renewal of aging housing stock, to reverse a half­-century of social and economic decline.  But, as the Harvard sociologist Robert J. Sampson notes, “Physical infrastructure and housing are crucial, but so, too, is the social infrastructure.” We need to bolster religious and civic organizations that cultivate stronger social ties, mitigate disorder and fight crime.

But long­term strategies can’t provide immediate relief from the daily horrors of urban crime.  In the short run, we need the police.  We need aggressive law enforcement methods that do not harass or brutalize the innocent.  Ultimately, though, we can’t eliminate the propensity to over­police and over­imprison unless we curb the disorder and chaos that threaten and destroy urban black lives.  As the history of the Rockefeller drug laws suggests, if crime rates climb to extraordinary levels, black citizens may once again value public safety more than civil liberty — and all the marching and shouting will have been for naught.

September 28, 2015 in Drug Offense Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Sunday, September 27, 2015

VICE special prison report, "Fixing the System," to premire tonight on HBO

Images (3)Tonight on HBO will be the first full premire screening of this special report, "Fixing the System," done in conjuntion with VICE.  A partial preview is available here via YouTube, where this summary of the show also apprears: 

VICE and HBO's upcoming special on criminal justice in the US: 'Fixing The System' will air September 27. Watch the full trailer [at this link].

In the first clip to go live from the special, we see the moment that President Obama meets the inmates and sits down with them for an in-depth conversation. Stay tuned for more prison coverage in the weeks to come, and watch the full-length special this Sunday on HBO.

The special offers a panoramic perspective on crime and punishment, and will follow all the key characters in America’s sprawling justice system, including prisoners and their families, members of the judiciary, and community reformers.

It will be hosted by VICE founder and correspondent, Shane Smith, and will also feature President Barack Obama's historic tour of El Reno Federal Correctional Institution in Oklahoma in July, where he met with inmates and prison officials.

"There's an emerging consensus in this country — on both the right and the left — that the way we treat criminal offenders is utterly broken and weakening our society in profound ways," Smith said, explaining the significance of the documentary.

In filming the special, President Obama became the first sitting President to visit a federal prison, signaling that criminal justice reform is a top priority in the final stretch of his presidency. At the medium-security prison for male offenders, Obama met with six inmates. He said the men's stories and the mistakes they made were not dissimilar to those the president made in his own youth, when he admittedly smoked pot and used cocaine.

America needs to distinguish between violent criminals and people "doing stupid things," Obama said, adding that many young people who end up in prison for nonviolent drug crimes grew up in environments where drug trafficking is prevalent. Giving those people decades-long sentences is what is contributing to the country's overcrowded prison system, and more resources should be directed to education, support, and rehabilitation, he said.

"I am really interested in the possibilities, the prospect of bipartisan legislation around the criminal justice system," the president told reporters on June 30. "And we've seen some really interesting leadership from some unlikely Republican legislators very sincerely concerned about making progress there."

The special is the latest in VICE's ongoing coverage of what has become a major civil rights and reform issue in the United States.

September 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Saturday, September 26, 2015

"Chain Gang 2.0: If You Can’t Afford This GPS Ankle Bracelet, You Get Thrown In Jail"

The title of this post is the headline of this effective lengthy article from International Business Times discussing the intersection of modern technocorrections and modern criminal justice economics. Here are excerpts:

In Richland County, South Carolina, any person ordered to wear the ankle monitor as a condition of their bail must lease the bracelet from a private, for-profit company called Offender Management Services (OMS), which charges the offender $9.25 per day, or about $300 per month, plus a $179.50 set-up fee, according to county documents obtained through a Freedom of Information Act request made by International Business Times.

This arrangement reflects an opportunistic pitch by prison-oriented technology companies that has found favor with budget-minded government officials.  In effect, companies like OMS have allowed municipalities like Richland County to save the costs of monitoring offenders by having the offenders pay themselves.  The county wins, the company wins and people like Green find themselves confronting additional drains on their limited means.

In Richland County, if offenders don’t -- or simply can’t -- meet their payments, the company is obliged to contact police in order to "return [the offender] to the custody of the [Richland County] Detention Center,” a public facility.  In other words, if you can't pay your electronic monitoring bill, you get sent back to jail.

“The electronic monitoring people are like old-fashioned bounty hunters,” says Jack Duncan, a public defender in Richland County, who says some of his clients have been locked up because they can’t make their payments.  “It’s a newfangled debtors' prison. People are pleading guilty because it’s cheaper to be on probation than it is to be on electronic monitoring.”

Richland County is far from the only county in the United States that requires people to pay for their own tracking. In the last decade, “offender-funded” electronic monitoring programs -- as they’re known in the business -- have exploded in popularity.

States like Georgia, Arkansas, Colorado, Washington and Pennsylvania now contract with private, for-profit companies that require individuals to pay for their own tracking, according to analysis of county and state records by IBT.  While there is no centralized database on how often states charge defendants for their tracking, from 2000 to 2014 the use of electronic monitoring as alternative to jail detention grew by 32 percent, according to figures provided by the Bureau of Justice Statistics in a 2014 annual survey of jails. In 2014, NPR conducted a survey that found that in "all states except Hawaii and the District of Columbia, there's a fee for the electronic monitoring."  One industry report now pegs the number of people under electronic monitoring in the United States at 100,000, and that number likely will grow.

Companies routinely use lobbyists -- especially at state and local jurisdictions -- to establish relationships with officials from local corrections departments. The country’s largest private corrections company, GEO Group, spent $2.5 million in lobbying dollars in 2014, in part for its electronic monitoring efforts, according to company statements. In a nod to the high value of local relationships, GEO noted in company documents that “approximately $0.3 million was for lobbying at the Federal level and approximately $2.2 million was for lobbying at the state and local levels.”...

As government agencies look to decrease the financial burden of keeping so many people locked up, the electronic monitoring business appears poised for growth.  SuperCom, an Israeli software provider, predicts the industry will balloon to $6 billion in annual revenues by 2018, largely from offender-funded programs.

Clearly, the business is good for businesses and cheaper on taxpayers. But is it fair to charge individuals for their own electronic tracking?  Several lawyers interviewed for this story say absolutely not, even though it routinely happens. “The business model itself is blatantly illegal,” said Alec Karakatsanis, a lawyer and the co-founder of Equal Justice Under Law, a nonprofit civil rights organization. “If it were ever challenged in court, it would be struck down immediately.” Cherise Burdeen, executive director of the Pretrial Justice Institute, agreed, saying that “charging of offenders for their supervision conditions, whether that’s electronic monitoring -- all of that is unconstitutional and illegal.” Jack Duncan, the public defender, simply contends that electronic monitoring is “a legal monstrosity.”...

The electronic monitoring pitch is appealing to state and county governments. For example, Behavioral Inc., one of the largest electronic monitoring companies now owned by the private prison behemoth GEO Group, boasts in marketing materials that in Luzerne County, Pennsylvania, offender-funded electronic monitoring “has saved the county ... more than $40 million in jail bed costs by diverting offenders to community supervision.”

In some states, counties don’t only save money by contracting out the monitoring to private companies -- they actually make money from it.  For instance, in Mountlake Terrace, a suburb north of Seattle, the city contracts with a small electronic monitoring company, which charges the the town $5.75 “per client.”  However, the person placed on electronic monitoring actually pays the city $20 per day, resulting in a net revenue for the city of “approximately $50,000 to $60,000” per year, according to Mountlake Terrace county documents.

“We’re at peak incarceration as a society,” says Karakatsanis. “A lot of these companies are devoting extraordinary efforts to shift their business model and profit off of that growing surveillance and supervision.”...

Like many industries, businesses compete for contracts with a mix of lobbying, marketing and old-fashioned schmoozing. Companies routinely pitch their products' services at trade shows and conferences around the country. “You go to the National Association of Pretrial Services Conference, or the American Parole and Probation Association, and in the vendor room is all this technology for tracking,” says Cherise Burdeen. “They portray it as a great technology, and they tell all these county folks, “This doesn’t cost you anything; the defendant pays for it all!”

September 26, 2015 in Criminal Sentences Alternatives, Scope of Imprisonment, Technocorrections, Who Sentences? | Permalink | Comments (5)

Latest Glossip kerfuffle concerns whether Texas could make and export "better" execution drugs

The latest intriguing issue to arise in the ugly world of execution administration concerns whether Texas could supply "better" lethal injection drugs to other states.   This BuzzFeed article about the latest filing in the (never ending?) Glossip case explains:

The state of Texas is making its own execution drugs and has sold them to at least one other death penalty state, an inmate facing execution in Oklahoma alleges in a court filing Thursday. His attorneys point to documents that show the Texas Department of Criminal Justice sold pentobarbital to Virginia in late August.

Pentobarbital is a sedative that many death penalty states, including Oklahoma, have claimed is impossible for them to get their hands on. As a result, some states have turned to midazolam, a drug that critics argue is significantly less effective. The U.S. Supreme Court upheld the use of midazolam in executions this June.

The records submitted as part of the new filing show that Virginia received 150 milligrams of the drug. Under the heading “Name of Supplier,” the Texas Department of Criminal Justice is listed. The labels do not identify the pharmacy that prepared the drug. However, the lawyers for the Oklahoma inmate state that the labels were created by the Texas Department of Criminal Justice, which they also allege “is compounding or producing pentobarbital within its department for use in executions.”

On Friday, Texas confirmed to BuzzFeed News that it sent the execution drugs to Virginia. A spokesman said it was to repay Virginia for having given Texas drugs in the past. “In 2013, the Virginia Department of Corrections gave the Texas Department of Criminal Justice pentobarbital to use as a back up drug in an execution,” spokesman Jason Clark said. “Virginia’s drugs were not used.”

“The agency earlier this year was approached by officials in Virginia and we gave them 3 vials of pentobarbital that [were] legally purchased from a pharmacy. The agency has not provided compounded drugs to any other state. Texas law prohibits the TDCJ from disclosing the identity of the supplier of lethal injection drugs.”...

The lawyers raise these issues to make the argument that Oklahoma could avoid the use of the controversial midazolam drug in its executions. It could do so, they argue, by purchasing pentobarbital from Texas, like Virginia, or by “compounding or producing pentobarbital in the same manner as does TDCJ.”

States have struggled to obtain execution drugs for years after makers enacted more stringent guidelines to keep them away from states that would use them for executions. The idea of a state-run lab making its own death penalty drugs is something Missouri Attorney General Chris Koster raised last year, although many wondered how it could be done. Missouri, like Texas, has had no trouble obtaining pentobarbital.

September 26, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)

Friday, September 25, 2015

How might House speaker John Boehner's resignation announcement impact prospects for federal sentencing reform?

The question in the title of this post was my first reaction to this remarkable and unexpected news via Politico

Speaker John Boehner, who rose from bartender's son to the most powerful man in Congress, will retire at the end of October, ending a tumultuous five-year tenure atop the House of Representatives.

Boehner, 65, planned to leave Congress at the end of 2014, one of his aides said Friday morning, but returned because of the unexpected defeat of Eric Cantor.

"The Speaker believes putting members through prolonged leadership turmoil would do irreparable damage to the institution," the Boehner aide said. "He is proud of what this majority has accomplished, and his speakership, but for the good of the Republican Conference and the institution, he will resign the Speakership and his seat in Congress, effective October 30."...

Boehner came into power on the power of the 2010 tea party wave, but it was that movement that gave him the most problems. Boehner's tenure will be remembered for his internal political battles, but also his complicated relationship with President Barack Obama. He and Obama tried — but repeatedly failed — to cut a deal on a massive fiscal agreement. But Boehner has had some significant victories, including the free-trade deal that Congress passed this year, and changes to entitlement systems....

Boehner's decision, relayed in a closed Republican meeting Friday morning, will set off one of the most intense leadership scrambles in modern Congressional GOP politics. Second in line is House Majority Leader Kevin McCarthy (R-Calif.), who is widely expected to serve as the next speaker. But there is serious unrest in the House Republican ranks, as a small clutch of conservatives have continuously clashed with more establishment Republican types. But it is unclear if any of these figures can win a leadership election.

Of course, the easy answer to the hard question in the title of this post is "it depends." As regular readers know, the younger, more conservative and libertarian-leaning members of Congress within the GOP have generally been more supportive of federal sentencing reform than older establishment GOP officials. Thus, I think the prospects for federal sentencing reform could grow a bit brighter with new blood in the speaker seat.

Then again, any power struggle for leadership positions in the House is almost sure to take time and attention away from other legislative duties.  And diverted attention likely means any existing and future federal sentencing reform bills will have a hard time getting to and through a full vote in the House (and perhaps also the Senate).

September 25, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Notable reactions and commentary after Pope Francis calls again for death penalty abolition

Pope Francis' comments to Congress about his support for the abolition of the death penalty (basics here) has, unsurprisingly, generated lots of buzz from various quarters.  Here are some headlines and links to some notable press pieces:

September 25, 2015 in Death Penalty Reforms, Religion, Who Sentences? | Permalink | Comments (3)

Duchess of Cambridge creates surprising Princess prison diaries in UK

Kate-Middleton-Prison-VisitAs reported in this article from across the pond, headlined "Kate Middleton meets killers on secret visit to high security women's jail," the world's most famous princess made a notable field trip today. Here are the details:

The Duchess of Cambridge has been behind bars today meeting inmates in a women's prison. Kate visited HMP Send in Woking, Surrey to learn how it is helping some of its 282 inmates overcome drug and alcohol addiction to rebuild their lives.

Arriving this morning the royal mum spent 90 minutes inside the high security prison where many are serving life sentences for murder. HMP Send's notable prisoners have included road rage killer Tracie Andrews who served 14 years for murdering her fiancee in December 1996 and the Duchess of York's former dresser Jane Andrews who also spent 14 years in prison for murdering her boyfriend in 2000.

Dressed smartly and showing off her new-look fringe, Kate, 33, was greeted by the governor before meeting prisoners hearing their stories of addiction and crime.  She also met ex-inmates and heard how the programme helped them turn their lives around.

Kensington Palace said in a statement:  “The visit reflects the Duchess's interest in learning how organisations support people living with substance misuse issues, and the impact of addiction within the wider family network.  “As Patron of addiction charity, Action on Addiction, she is aware that addictions lie at the heart of so many social issues and the destructive role that substance misuse plays in vulnerable people's and communities' lives.”

Kate was viewing the work carried out by the Rehabilitation of Addicted Prisoners Trust (RAPt) which operates in HMP Send and 25 other prisons across the country.  Their treatment programme at HMP Send is the only one of its kind for women in Britain.  It is tailored to support female prisoners with addiction who have often experienced deep trauma, focusing on building healthy relationships with partners, children and other family members after the often traumatic and damaging impact of addiction and crime.

September 25, 2015 in Prisons and prisoners, Race, Class, and Gender, Sentencing around the world, Who Sentences? | Permalink | Comments (1)

Former prosecutors' provocative pitch for preserving tough federal drug mandatory minimums

This new commentary authored by J. Douglas McCullough and Eric Evenson, two former North Carolina federal prosecutors, makes notable arguments against reform of federal drug sentencing statutes. The piece is headlined "Keep drug sentencing laws to keep communities safe," and here are excerpts:

The U.S. Senate is finalizing a criminal reform bill that will alter federal drug trafficking laws. Changes center on the mandatory minimum sentencing requirements which have been a key part of federal laws for more than 30 years. As former federal prosecutors, with more than 40 years combined experience, we have seen first-hand the benefits of mandatory minimum sentencing when properly used as a tool in the fight against drug traffickers. We urge Congress to leave this tool intact.

Many of our drug laws were passed by Congress in the 1980s, in response to a growing drug epidemic. These laws, which included mandatory sentences based on drug quantity and criminal history, were part of reform designed to rescue cities from the grip of drug traffickers and the danger it caused to our most vulnerable citizens. Congress correctly recognized that this goal could only be accomplished if sentences were tough for those controlling the distribution of drugs. Incentives were created for lower-level participants to provide evidence against higher-level traffickers in the form of a companion reward for testimony against other traffickers. Tough sentences were designed to remove the worst offenders from our communities; the opportunity to provide evidence in return for a lower sentence mitigated the effect of those sentences for those willing to help investigators get to the leaders of the drug organizations.

In our own district (which include cities, as well as rural areas) we saw crime rates decline, neighborhoods were revitalized, and violence was reduced. As we interviewed hundreds of drug traffickers who decided to provide testimony against higher-level traffickers, they revealed they were motivated to do so in large part by the significant sentences they faced.

Without tough sentencing standards for traffickers, we could not have obtained their testimony and obtained convictions against the large-scale traffickers. We saw our work as a “war on drug traffickers” with the goal of elimination of the traffickers from our communities. We sought cooperation and made appropriate recommendations for lower sentences for those who provided truthful testimony against major traffickers. We viewed the drug users as “victims” of drug traffickers. Drug trafficking produces two things: addicts, with ruined lives, and illegal profits for major drug traffickers.

The vast majority of drug traffickers — those we brought to federal court — were not drug users. They sold drugs because of greed. They were sentenced because of their large-scale distribution, and/or for the use of firearms as part of their activities. Those who argue that federal prisons are full of low-level drug users are simply wrong.

Drug trafficking spawns many other types of crime: gun violence, murder, theft, prostitution, and more. When a drug trafficker sets up his stronghold in a neighborhood, the whole community feels the effects. Many of the community’s most vulnerable citizens — those with limited means — can’t leave their crime-infested areas. They become trapped in the hellish world created by the drug traffickers....

Opponents of mandatory sentencing claim that these sentences are racist, unfair and expensive. That is not true. Mandatory sentencing has helped to rescue communities of color from drug traffickers; mandatory sentencing is equally applied to all drug traffickers, regardless of race, gender and economic status; and, the cost of long prison sentences is minor when compared to the lives saved and the communities rescued as the result of their imposition.

Instead of eliminating mandatory prison terms, why not institute meaningful reforms that will get to the root cause of drug trafficking? The majority of incarcerated drug traffickers we have interviewed were younger men who were the product of fatherless homes. The father is the first example of law and order for a young man. The breakdown of family has done more to lead to our drug epidemic than perhaps any other single cause.

Let’s focus on the causes of family breakdown, and the resulting failure to teach/instill good character in our young people. Public schools could offer character instruction. Religious institutions must be involved in teaching character and family/parental skills. For those serving long sentences, there should be an opportunity for rehabilitation, and to earn sentence reduction. Prisoners need to be taught work skills and character development that was largely overlooked in their earlier years.

Weakening our federal sentencing laws against drug trafficking, though frequently well intended, is naïve, counterproductive, and will adversely affect the communities to which drug traffickers will more quickly return.

Intriguingly, while making the case for preserving federal drug mandatory minimum statutes, these former prosecutors are also making the case for some of the back-end reforms currently being considered by Congress when they advocate for federal prisoners having an "opportunity for rehabilitation, and to earn sentence reduction." Also, I find it interesting that these authors assert that the breakdown of the family best accounts for drug problems and yet they do not acknowledge the role of the drug war in contributing to family disruptions.

September 25, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Thursday, September 24, 2015

Pope Francis, speaking to Congress, urges abolishing death penalty (and LWOP)

AP_pope_congress_10_mm_150924_31x13_1600I have finished watching the Pope's speech to a joint session of Congress, and these passages from the full text of the speech should be of special interest to sentencing fans (with my emphasis added at end):

Our world is facing a refugee crisis of a magnitude not seen since the Second World War. This presents us with great challenges and many hard decisions.  On this continent, too, thousands of persons are led to travel north in search of a better life for themselves and for their loved ones, in search of greater opportunities.  Is this not what we want for our own children? We must not be taken aback by their numbers, but rather view them as persons, seeing their faces and listening to their stories, trying to respond as best we can to their situation.  To respond in a way which is always humane, just and fraternal.  We need to avoid a common temptation nowadays: to discard whatever proves troublesome. Let us remember the Golden Rule: "Do unto others as you would have them do unto you" (Mt 7:12).

This Rule points us in a clear direction.  Let us treat others with the same passion and compassion with which we want to be treated.  Let us seek for others the same possibilities which we seek for ourselves.  Let us help others to grow, as we would like to be helped ourselves.  In a word, if we want security, let us give security; if we want life, let us give life; if we want opportunities, let us provide opportunities.  The yardstick we use for others will be the yardstick which time will use for us.  The Golden Rule also reminds us of our responsibility to protect and defend human life at every stage of its development.

This conviction has led me, from the beginning of my ministry, to advocate at different levels for the global abolition of the death penalty.  I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops here in the United States renewed their call for the abolition of the death penalty.  Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation.

These passages will surely be the focal point for those eager to advocate for the complete abolition of the death penalty, but the language of hope and rehabilitation never being excluded from "just and necessary punishment" is also significant as a criticism of sentences of life without the possibility of parole.

A few prior related posts:

September 24, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Is Justice Scalia saying four (and maybe five) colleagues are now ready to judicially abolish death penalty?

The question in the title of this post is prompted by press reports on Justice Antonin Scalia's speech given at Rhodes College on Tuesday. This BuzzFeed story's extended headlined provides the basics: "Justice Scalia Says He 'Wouldn’t Be Surprised' If Supreme Court Ended Death Penalty: In a speech Tuesday at Rhodes College, the conservative Supreme Court justice said that four of his colleagues think that the penalty is unconstitutional, The Commercial Appeal reported."  Here is the full context:

Supreme Court Justice Antonin Scalia told attendees of a speech given Tuesday that four of his colleagues believe the death penalty is unconstitutional and that “he wouldn’t be surprised” if the court ends the penalty, according to reports from the event.

Speaking at Rhodes College, the conservative justice bristled at the concept, believing the penalty to be constitutional and telling attendees that death penalty opponents should go to the states if they want to end it, Jennifer Pignolet of The Commercial Appeal tweeted.

According to Pignolet’s report, Scalia said that “he ‘wouldn’t be surprised’ if his court ruled it unconstitutional, despite his belief that the Constitution allows for it with the establishment of protections like a fair trial.”  Specifically, Scalia said that “he now has 4 colleagues who believe it’s unconstitutional,” Pignolet tweeted.

The statements provide new insight into the court’s internal discussions — or at least Scalia’s take on his colleagues — as his comments go further than Scalia’s colleagues have gone themselves.

After the Glossip ruling in June, I was somewhat dismissive of claims by abolitionists that Justice Breyer's dissent suggested that it might only be a matter of time before there could be a majority of Justices ready to decalre the death penalty categorically unconstitutional. But Justice Scalia's comments now suggest that hopes for coming judicial abolition of capital punishment throughout the United States may not be just wishful thinking.

Prior related posts:

September 24, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)

Wednesday, September 23, 2015

Prez candidate Bernie Sanders: "We Must End For-Profit Prisons"

BernieAs noted in this prior post, last week Senator (and Presidential candidate) Bernie Sanders announced his commitment to ending use of private prison in the United States. This week he has followed up by authoring this Huffington Post commentary under the headline "We Must End For-Profit Prisons." Here are excerpts taken from the start and end of the piece along with its major headings in-between:  

The United States is experiencing a major human tragedy. We have more people in jail than any other country on earth, including Communist China, an authoritarian country four times our size. The U.S. has less than five percent of the world's population, yet we incarcerate about a quarter of its prisoners -- some 2.2 million people.

There are many ways that we must go forward to address this tragedy. One of them is to end the existence of the private for-profit prison industry which now makes millions from the incarceration of Americans. These private prisons interfere with the administration of justice. And they're driving inmate populations skyward by corrupting the political process.

No one, in my view, should be allowed to profit from putting more people behind bars -- whether they're inmates in jail or immigrants held in detention centers. In fact, I believe that private prisons shouldn't be allowed to exist at all, which is why I've introduced legislation to eliminate them.

Here's why:

For-profit prisons harm minorities....

For-profit prisons abuse prisoners....

For-profit prisons victimize immigrants....

For-profit prisons profit from abuse and mistreatment....

Prison industry money is corrupting the political process....

For-profit prisons are influencing prison policy ......

... and immigration policy....

For-profit companies exploit prison families....

Young people are being mistreated and exploited....

I have introduced legislation that will put an end to for-profit prisons. My legislation will bar federal, state, and local governments from contracting with private companies to manage prisons, jails, or detention facilities. Regulators will be directed to prevent companies from charging unreasonable fees for services like banking and telecommunications.

My legislation also takes steps to reduce our bloated inmate population. It reinstates the federal parole system, which was abolished in the 1980s, so that officials can individually assess each prisoner's risk and chance for rehabilitation. It ends the immigrant detention quota, which requires officials to hold a minimum of 34,000 people captive at any given time. And it would end the detention of immigrant families, many of whom are currently held in privately-owned facilities in Texas and Pennsylvania.

It's wrong to profit from the imprisonment of human beings and the suffering of their friends and families. It's time to end this morally repugnant practice, and along with it, the era of mass incarceration.

I have long tended to have an agnotic view of the private prison industry, in part because I generally tend to favor free-market solutions to big problems and in part because I view the public prison industry to be chock full the big problems stressed by Sanders in this commentary.  Nevertheless, Sanders makes a strong case that private prisons exacerbate public harms in incarceration nation.  Moreover, it is now quite interesting and important that a significant rival to Hillary Clinton for the Democratic nomination for President is now making prison reform a big priority on the campaign trail.

Some prior related posts:

September 23, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Investigating how elected judiciary may impact capital punishment's administration

USA-DEATHPENALTYReuters has this new investigative report exploring the relationship between an elected judiciary and a jurisdiction's administration of the death penalty.  The full headline and subheading provide a summary of the themes of the report: "Uneven Justice: In states with elected high court judges, a harder line on capital punishment. Justices chosen by voters reverse death penalties at less than half the rate of those who are appointed, a Reuters analysis finds, suggesting that politics play a part in appeals. Now, the U.S. Supreme Court is about to decide whether to take up the issue in the case of a Ohio cop killer." Here are passages from the report:

Ohio is one of the states where high court judges are directly elected – and that, a Reuters analysis found, makes a big difference in death penalty appeals.

A review of 2,102 state supreme court rulings on death penalty appeals from the 37 states that heard such cases over the past 15 years found a strong correlation between the results in those cases and the way each state chooses its justices. In the 15 states where high court judges are directly elected, justices rejected the death sentence in 11 percent of appeals, less than half the 26 percent reversal rate in the seven states where justices are appointed.

Justices who are initially appointed but then must appear on the ballot in “retention” elections fell in the middle, reversing 15 percent of death penalty decisions in those 15 states, according to opinions retrieved from online legal research service Westlaw, a unit of Thomson Reuters.

Some academic studies over the past 20 years have mirrored the Reuters analysis, showing a relationship between the result in death penalty appeals and how state supreme courts are selected. The U.S. Supreme Court has not addressed these findings in its rulings.

Now, however, at least three current justices are sympathetic to the idea that political pressure on judges is a factor that leads to arbitrary, and perhaps unconstitutional, application of the death penalty. The findings, several legal experts said, support the argument that the death penalty is arbitrary and unconstitutional because politics – in addition to the facts – influence the outcome of an appeal.

Courts have a responsibility to protect a defendant’s constitutional rights without political pressure, especially when the person’s life is at stake, said Stephen Bright, a Yale Law School lecturer who has worked on hundreds of death defenses. “It’s the difference between the rule of law and the rule of the mob,” Bright said....

State supreme courts automatically review every death penalty verdict. Apart from examining whether any legal errors were made, judges must also weigh different factors to decide whether the death sentence is an appropriate punishment. Was it the defendant’s first offense or do they have a history of violent behavior? When a death sentence is reversed, the offender usually gets life in prison instead.

But as the Reuters analysis suggests, external factors may come into play. The election effect was a far stronger variable in determining outcomes of death penalty cases than state politics and even race. Justices in states that supported Democratic President Barack Obama in the 2012 election reversed death sentences at roughly the same rate as those that went for Republican candidate Mitt Romney, at around 14 percent.

African-American defendants had lower reversal rates in both elected and appointed states. Nationally, death sentences were reversed 15 percent of the time for whites, compared with 12 percent for African-Americans, according to the Reuters findings.

Reuters did not analyze the possible impact of the race of the victim on death penalty appeals. The analysis also excluded a category of death penalty appeals known as habeas challenges, because state supreme courts are not required to hear them and overwhelmingly refuse to do so....

In 2013, Justice Sonia Sotomayor cited a study showing that Alabama judges are more likely to impose the death penalty in election years, part of a failed effort to persuade her colleagues to review an Alabama capital case.

Last June, in Glossip vs. Gross, the high court voted 5-4 that the method of execution in Oklahoma is constitutional. In dissent, Justices Stephen Breyer and Ruth Bader Ginsburg cited studies showing capital punishment is arbitrary because of racial bias, as well as political pressure, “including pressures on judges who must stand for election."

Retired U.S. Supreme Court Justice John Paul Stevens, who has said he believes the death penalty to be unconstitutional, said in an interview that the Reuters findings “definitely lend support” to his side of the debate because they show how arbitrary capital punishment can be.

September 23, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Tuesday, September 22, 2015

Suggesting unionization as a (partial) solution to to federal indigent defense problems

An informed reader, in response to the recent NACDL report about the state of federal indigent defense resprentation (noted here), sent me a letter and requested I post it in this space.  I am happy to do so:

The National Association of Criminal Defense Lawyers has just issued a hard-hitting report [available here], "Federal Indigent Defense 2015: The Independence Initiative."  The first of its seven points is that federal indigent defense needs independence from the judiciary. In response, the libertarian Cato Institute has already argued [here] that "one reform that is entirely absent from the report is the introduction of client choice and free market competition into the indigent defense system."  The idea is, among other things, impractical.  The one practical reform "that is entirely missing from the report" is something else entirely: unionization of attorneys in Federal Defender offices (which nation-wide represent most federal criminal defendants).

The one unionized federal defender office — Federal Defenders of New York, Inc., which covers all of New York City and several surrounding counties — has been a success story. Without fear of losing our jobs (except, of course, for cause), lawyers in our unionized office can devote ourselves more effectively to our primary mission: zealous representation of clients. No lawyer needs fear dismissal for reasons that are political, unfair or arbitrary.

We work in an office with superb management and in two federal districts with outstanding judges.  Like others around the country, the good faith of everyone in the criminal justice system goes a long way.  But we also live in a country of laws, not just people, and we benefit from institutional structures, including a union, that allows us to make arguments before judges as compellingly as we can, as respectfully as we are — and without fear.  

I am attaching a more detailed letter that I wrote to the NACDL Federal Indigent Task Force a year ago.  [Available here: Download Letter on NACDL Federal Inidgent Task Force.7.25.2014] 


Douglas G. Morris

Vice-President – Unit for Federal Defenders of New York

Association of Legal Aid Attorneys, UAW 2235 (AFL-CIO)

Assistant Federal Defender

Federal Defenders of New York, Eastern District of New York

September 22, 2015 in Who Sentences? | Permalink | Comments (4)

Monday, September 21, 2015

Is there really a "growing conservative movement" that will create "bipartisan coalition opposing" the death penalty?

The question in the title of this post is prompted by this The Week feature article which has a headline promising to go "Inside the growing conservative movement to end the death penalty." Here is how the piece starts and ends:

After years of sitting on death row in Oklahoma, Richard Glossip was scheduled to die on Wednesday.  But today, Friday, he's still alive.  That's thanks to a last-minute, two-week reprieve — which was granted in no small part because of a growing cadre of conservative activists who oppose the death penalty.

Glossip's case — he was convicted of hiring someone to kill his boss — had exhausted every avenue of appeal, even briefly heading to the Supreme Court last year as the justices weighed the legality of lethal injection.  But time and again, state officials and the legal system rejected his team's claims of innocence.

In recent weeks, pressure began to mount from evangelicals, young activists, and figures in the local media who wanted the state to take one last look at his case.  The outreach to these groups came largely from an organization called Conservatives Concerned About the Death Penalty.  Their outreach specialist is a man named Marc Hyden, a former campaign field representative for the National Rifle Association who argues that opposing capital punishment is a natural philosophical fit for tough-minded conservatives.

"Point to a single government program that works flawlessly.  Death penalty supporters have to accept that it's a human-run program and so my question is, how many innocent people are you willing to execute?" Hyden told me.

The fallibility of government is just one of several strategic points from which Hyden and his conservative constituency come at capital punishment.  They are also quick to point out that putting someone to death is far more expensive than simply keeping them in prison. Then there's the empirical data challenging whether the threat of execution is truly a disincentive for would-be criminals.  Some anecdotal accounts challenge whether families of victims benefit in any measurable way from seeing a perpetrator put to death.  And for the truly committed pro-life believer, there is the larger philosophical dilemma of whether a God-fearing society should be empowering the state to execute its citizens....

Conservatives Concerned About the Death Penalty got off the ground in 2010 in Montana, an ideal breeding ground for forward-thinking conservative positions.  After all, this is the same state where citizens have tussled with the federal government over using their gun registration cards to purchase medical marijuana.

Conservatives Concerned About the Death Penalty has expanded to states including Florida, Delaware, Tennessee, Kentucky, North Carolina, Texas, Georgia, Connecticut, and Nebraska.  The latter two abolished capital punishment this year.  Altogether, seven states have banned the death penalty since 2000, by far the biggest shift in American history.

Over the coming days and weeks, Glossip's case will bring an increased spotlight to capital punishment and whether it has a place in modern American society.  It's unlikely any one case will prove to be the tipping point, but when you consider that just five years ago, legalized marijuana and gay marriage seemed farfetched to most, it's not crazy to think that with a bipartisan coalition opposing it, the death penalty may soon find itself on life support, too.

September 21, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

Sunday, September 20, 2015

"Mass Incarceration Has Become the New Welfare"

The title of this post is headline of this interesting recent Atlantic commentary authored by Alex Lichenstein. It is, in part, a response to this major Altantic piece by Ta-Nehisi Coates, titled "The Black Family in the Age of Mass Incarceration," but it has lots more too it.  Here are excerpts:

When Ta-Nehisi Coates says that America’s bloated and enormously expensive dependence on imprisonment has created a “social service program … for a whole class of people,” he hits the nail on the head.  Perhaps correctional expenditures — police, courts, jails, prisons, halfway houses, parole offices, and all the rest — are better classified as “welfare” expenditures.

Mass incarceration is not just (or even mainly) a response to crime, but rather a perverse form of social spending that uses state power to address a host of social problems at the back end, from poverty to drug addiction to misbehavior in school.  These are problems that voters, taxpayers, and politicians — especially white voters, taxpayers, and politicians — seem unwilling to address in any other way.  And even as this spending exacts a toll on those it targets, it confers economic benefits on others, creating employment in white rural areas, an enormous government-sponsored market in prison supplies, and cheap labor for businesses.  This is what the historian Mike Davis once called “carceral keynesianism.”

What created this system? Coates suggests that 50 years ago policymakers and pundits refused to heed — or willfully misread — Daniel Patrick Moynihan’s dire warnings about the dissolution of the “Negro family” and his rather inchoate “case for national action.” Rather than redressing the problem of racism and “Negro” poverty, instead they turned to the expansion of a criminal justice system in the name of “law and order.”  Although Coates is justifiably hard on Moynihan — for his sexism and faith in patriarchy, for his subsequent reactionary politics, and most of all for lacking the courage of his convictions — like the historian Daniel Geary, he sees the Moynihan of 1965 as a closet supporter of affirmative action.

But, in characteristic fashion, he goes beyond this, asking readers to think in new ways about disturbing phenomena that they may take for granted.  Bringing together Moynihan’s concerns about black family structure with the cold fact of mass incarceration produces a striking conclusion: Mass incarceration actually causes crime.  In its long-term impact on the black family, mass incarceration has many of the disintegrative effects that Moynihan attributed to slavery.  It certainly has a similar multigenerational impact; the children of imprisoned people have a much higher chance of themselves being incarcerated as adults....

The terrible failures of America’s criminal-justice system can actually, from a certain perspective, be seen as policy successes.  The high rate of recidivism suggests that prisons fail to rehabilitate those who are locked up.  Yet if two-thirds of parolees return to prison, perhaps it is because the economy offers them no jobs and the welfare state excludes them as ex-felons.  Their return to the social services provided by incarceration, from this angle, makes a degree of sense.  And the point of Coates’s essay is that these people the economy has no room for and the state is unwilling to care for are, as they have always been, disproportionately of African descent.... 

Coates is right: To reform criminal justice requires “reforming the institutional structure, the communities, and the politics that surround it.”  Mustering the requisite political and social resolve to make those changes may seem impossible.  But consider this: How would the nation react if one out of every four white men between the ages of 20 and 35 spent time in prison? 

September 20, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Friday, September 18, 2015

Shouldn't former federal judge Mark Fuller now be federally prosecuted for perjury?

The question in the title of this post prompted by this new AP article, headlined "Judicial Conference says former federal judge's conduct was reprehensible, impeachable." Here are the details:

Judicial investigators told Congress this week that a former federal judge — arrested last year on a domestic violence charge — had demonstrated "reprehensible conduct" and there was evidence that he abused his wife several times and made false statements to the committee reviewing his behavior.

The Judicial Conference of the United States, in a report to Congress this week, said former U.S. District Judge Mark Fuller of Alabama brought disrepute to the federal judiciary and that his conduct might have warranted impeachment if he had not resigned this summer.  

In a letter to the House Judiciary Committee [which can be accessed here], the Judicial Conference noted Fuller's resignation, but said the severity of Fuller's misconduct and its finding of perjury led it to turn the information over to Congress for whatever action lawmakers deem necessary. "This certification may also serve as a public censure of Judge Fuller's reprehensible conduct, which has no doubt brought disrepute to the Judiciary and cannot constitute the 'good behavior' required of a federal judge," Judicial Conference Secretary James C. Duff wrote in a Sept. 11 letter to House Speaker John Boehner....

The Judicial Conference wrote that there was substantial evidence that the judge "physically abused Kelli Fuller at least eight times, both before and after they married, which included and culminated in the assault that took place on Aug. 9, 2014, in the Ritz-Carlton Hotel in downtown Atlanta, Georgia." The conference wrote that Fuller denied under oath to the investigating committee that he ever hit, punched or kicked his wife, and that the investigating committee considered those to be false statements. The Judicial Conference also cited a separate incident, on which it did not elaborate, saying Fuller in 2010 made a false statement to the chief judge that caused a disruption in operations and a loss of public confidence in the court.

The House committee is not releasing the full report, which contains some sensitive victim information. Fuller was placed on leave after his arrest. In May, he announced that he was resigning effective Aug. 1. The Judicial Council of the U.S. 11th Circuit at the time said Fuller's actions might have warranted impeachment, but the reasons for the determination were not released until this week.

Fuller was appointed to the bench in 2002 by then-President George W. Bush. He is perhaps best known for presiding over the 2006 public corruption trial of former Alabama Gov. Don Siegelman and former HealthSouth CEO Richard Scrushy. 

As celebrity white-collar attorneys surely recall, in recent times a number of prominent public figures ranging from Barry Bonds to Roger Clemens to Marion Jones to 'Lil Kim to Scooter Libby have been federally prosecuted for alleged acts of perjury that seems far less serious and consequential than what the Judicial Conference has found former judge Mark Fuller committed.  Absent some prominent explanation for why a federal perjury prosecution would not be worthwhile in this setting, I will be mighty disappointed and a bit concerned if Fuller does not face sanctions for his apparent criminal behavior in this matter.  (Critically, I am not — at least not yet — asserting that Fuller should be imprisoned for his lying under oath to cover up his misbehavior and stay in his position as a federal judge.  But I am saying (former state DA prosecutor) Fuller ought to at least face federal criminal charges and be subject to the heat that comes with a formal federal prosecution.)

September 18, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (15)

"Cuba to release 3,522 prisoners on the eve of Pope Francis’ visit; why can’t Obama do the same?"

PopeFrancisIsis-v2The provocative question in the title of this post is the title of this notable San Francisco Bay View commentary. Here is how it starts:

Just prior to the visit of Pope Francis to Cuba on Sept. 19, the Cuban government has announced the release of 3,522 people being held in the country’s jails.  This humanitarian gesture will include prisoners who are over 60 years of age, younger than 20, those with chronic illnesses, women and those who are close to their release dates.

Why couldn’t Obama follow the Cuban example before Pope Francis continues on his tour to the U.S. on Sept. 22?  The United States, which has the dubious distinction of having the largest per capita prison population in the world, is overflowing with people who are primarily incarcerated for nonviolent offenses, on drug charges, or being mentally ill and poor.  Of the 2.5 million people in jails and prisons in this country, a vastly disproportionate number are people of color.

As the Obama presidency winds down, with nothing to lose, he could do the right thing by releasing an equal percentage of the prison population as the Cubans did.  Now that would be a humanitarian gesture that a war torn world could appreciate and a gesture of peace with justice to the visiting Pope.  It would amount to the freedom of tens of thousands of people.

Though I am suspect of any accounting of Cuba's incarceration levels (or its propaganda about recent releases), the latest estimate of its imprisoned population is around 57,500.  Consequently, its release of more than 3,500 prisoners amounts to freeing more than 6% of its incarcerated population.  A comparable effort by President Obama, if we focus on the entire local, state and federal incarcerated US population, would require the release of more than 135,000 persons imprisoned in the United States. Even if Prez Obama only released 6% of the current federal prison population, he would still need to grant over 12,000 federal offenders their freedom to make a gesture for the Pope comparable to what Cuba is claiming it has done.

I am not expecting to Prez Obama (or any state's Governor) to make a mass clemency gesture like this for the Pope's visit to the US.  But, as this new NPR story highlights, there are a number of criminal justice reform advocates who are hopeful that, at the very least, the Pope's visit will help kick-start federal criminal justice reform efforts. The NPR piece is headlined "Pope's U.S. Visit Spurs Catholic Support For Criminal Justice Reform," and it highlights that the "Pope will visit a prison in Pennsylvania next week and ... and faith leaders are using the opportunity to press Congress for action."

Some prior related posts on Pope Francis and criminal justice reform:

September 18, 2015 in Clemency and Pardons, Prisons and prisoners, Religion, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Ohio judges pushing for "truth in plea bargaining"

My Columbus Disptach this morning has this notable new article about a notable new push for a new criminal procedure rule concerning plea bargaining practices here in the Buckeye state.  The article is headlined "Plea deals must reflect crime committed, judges demand," and here are excerpts:

Judge Michael P. Donnelly had seen enough by the time his spreadsheet of plea deals in sexual-assault cases reached nearly 200. In each case, the defendant pleaded guilty to a lesser crime that bore no factual resemblance to what occurred, allowing many to avoid sex-offender registration requirements.

Many rape cases involved pleas to aggravated assault, a crime involving serious bodily harm in which the defendant was provoked by the victim — a scenario common in a drunken bar fight but wildly inconsistent with rape. “It’s sidestepping the truth. It’s legal fiction, nothing more than a lie,” said Donnelly, a Cuyahoga County Common Pleas Court judge. “No one can defend this process. There is no ethical defense.”

With Donnelly leading the charge for change, the Ohio Supreme Court — unless legislators object — could amend court rules to require charges in felony plea deals to be factually based — to reflect what actually occurred. “Ending the charade” would promote transparency and foster public accountability in the justice system, Donnelly said. “We can be allowing pleas to something that everyone knows didn’t happen.”

The court’s rules commission has advanced the proposal by moving to seek public comment on the changes in Criminal Rule 11 as part of the early steps of a lengthy process leading to approval or rejection. The Ohio Judicial Conference, which represents the state’s judges, is on board with the change, calling “often convenient” plea agreements “contrary to the objectives of the justice system.”

Advocates for sexual-assault victims also support the change, saying pleas to lesser, unrelated offenses leave victims’ trauma unacknowledged and victims feeling “like the justice system let them down.”

Criminal-defense lawyers oppose the change, saying that it would unfairly limit their options in representing criminal defendants and could increase the number of cases going to trial. “While (plea deals) may be factually incorrect, from a justice perspective it is the right thing to do,” said Ohio Public Defender Timothy Young. “We have punishments that are not proportional to everyone who commits a crime because not every crime, while of the same name, is of the same nature.”

Barry Wilford, public-policy co-director of the Ohio Association of Criminal Defense Lawyers, said, “Truth in plea bargaining is an easily stated expression, but it begs the question, ‘What is the truth?’  ” Prosecutors and defense lawyers, with the ultimate approval of judges, “have to have some freedom, some negotiating room. ... There’s give and take by both sides. Each side has its objectives. The law should permit them that liberty,” Wilford said.

Donnelly’s study of 197 cases between 2008 and 2012 that resulted in plea agreements that he determined were not based on the facts represented only about 5 percent of the 3,700 sexual-assault cases handled in Cuyahoga County, an official said. “Sometimes, you take the sure thing to get someone off the street and hold them accountable,” said Joseph Frolik, spokesman for Prosecutor Timothy McGinty, who took office in 2013.

Franklin County Prosecutor Ron O’Brien agrees with Donnelly that plea deals “should resemble what the conduct was.” He and his assistants work to base plea agreements on the factual circumstances of cases and preserve sex-offender registration, often by using lesser and included “attempted” offenses, such as attempted rape, he said. “It’s been on everyone’s radar for a number of years. Anyone who has been doing it to an improper degree probably already has changed that practice,” O’Brien said.

Greene County Common Pleas Judge Stephen A. Wolaver leads the Ohio Supreme Court’s criminal-rules committee and believes truth-in-plea-agreements should be adopted to foster public confidence in courts. “If you are going to handle a case based on the fact a person committed a crime, transparency says they should have committed that crime. If there is no fact basis for a particular crime, the question is raised, ‘Was there actually justice?’  ” Wolaver asked.

September 18, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, September 17, 2015

Prez Candidate Bernie Sanders announces plan to restore federal parole and eliminate private prisons

Images (1)As reported in this new USA Today piece, headlined "Sanders seeks to ban private prisons," a US Senator on the presidential campaign trail has come out with a distinctive and ambitious criminal justice reform proposal. Here are the basics:

Sen. Bernie Sanders said he hopes to end the “private, for-profit prison racket” with the introduction Thursday of bills to ban private prisons, reinstate the federal parole system and eliminate quotas for the number of immigrants held in detention.

The Vermont independent, who is running for the Democratic presidential nomination, introduced the “Justice is not for Sale Act” with Democratic Reps. Raúl M. Grijalva of Arizona, Keith Ellison of Minnesota and Bobby L. Rush of Illinois. It would bar the federal government from contracting with private incarceration companies starting two years after passage.

“The profit motivation of private companies running prisons works at cross purposes with the goals of criminal justice,” Sanders said. “Criminal justice and public safety are without a doubt the responsibility of the citizens of our country, not private corporations. They should be carried out by those who answer to voters, not those who answer to investors.”...

Ellison said the private-prison industry spends millions each year lobbying for harsher sentencing laws and immigration policies that serve its bottom line. “Incarceration should be about rehabilitation and public safety, not profit,” he said.

The legislation would reinstate the federal parole system, abolished in 1984, and increase oversight of companies that provide banking and telephone services for inmates. It also would end the requirement that Immigration and Customs Enforcement maintain 34,000 detention beds.

Sanders said the bill represents only a piece of the major criminal justice reforms he believes are needed, but he’s convinced the issue can find bipartisan support. “Making sure that corporations are not profiteering from the incarceration of fellow Americans is an important step forward.”

The full text of the Justice is Not for Sale Act of 2015 can be accessed at this link, and it is a very interesting read. Perhaps not surprisingly, the media is so far focused on the provisions of the bill seeking to eliminate use of private prisons. But I think the provisions in the bill that are the most important and could be, by far, the most consequential are those that would reintroduce parole in the federal system.

September 17, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Notable Left/Right morality accounting of the "Truth about Mass Incarceration"

Cover_20150921_tocProviding the cover feature piece for the September 21 issue of The National Review, Stephanos Bibas has this notable new commentary reflecting on the political rhetoric and statistical realities that surround modern crime and punishment in the United States.  The piece is headlined "Truth about Mass Incarceration," and I highly recommend the piece in full.  Here is an except from heart of the commentary, as well as its closing paragraph:

So the stock liberal charges against “mass incarceration” simply don’t hold water.  There is no racist conspiracy, nor are we locking everyone up and throwing away the key.  Most prisoners are guilty of violent or property crimes that no orderly society can excuse.  Even those convicted of drug crimes have often been implicated in violence, as well as promoting addiction that destroys neighborhoods and lives.

But just because liberals are wrong does not mean the status quo is right.  Conservatives cannot reflexively jump from critiquing the Left’s preferred narrative to defending our astronomical incarceration rate and permanent second-class status for ex-cons.  The criminal-justice system and prisons are big-government institutions.  They are often manipulated by special interests such as prison guards’ unions, and they consume huge shares of most states’ budgets.  And cities’ avarice tempts police to arrest and jail too many people in order to collect fines, fees, tickets, and the like.  As the Department of Justice found in its report following the Michael Brown shooting in Missouri, “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.” That approach poisons the legitimacy of law enforcement, particularly in the eyes of poor and minority communities.

Conservatives also need to care more about ways to hold wrongdoers accountable while minimizing the damage punishment does to families and communities.  Punishment is coercion by the state, and it disrupts not only defendants’ lives but also their families and neighborhoods.  Contrary to the liberal critique, we need to punish and condemn crimes unequivocally, without excusing criminals or treating them as victims.  But we should be careful to do so in ways that reinforce rather than undercut conservative values, such as strengthening families and communities....

American criminal justice has drifted away from its moral roots. The Left has forgotten how to blame and punish, and too often the Right has forgotten how to forgive. Over-imprisonment is wrong, but not because wrongdoers are blameless victims of a white-supremacist conspiracy. It is wrong because state coercion excessively disrupts work, families, and communities, the building blocks of society, with too little benefit to show for it. Our strategies for deterring crime not only fail to work on short-sighted, impulsive criminals, but harden them into careerists. Criminals deserve punishment, but it is wise as well as humane to temper justice with mercy.

September 17, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

"The Meaning of 'Meaningful Appellate Review' in Capital Cases: Lessons from California"

The title of this post is the title of this notable new article authored by Steven Shatz now available via SSRN. Here is the abstract:

In Furman v. Georgia, the Supreme Court's seminal death penalty case, the Court held that the death penalty, as then administered, violated the Eighth Amendment because the penalty decision was so unguided and the imposition of the death penalty was so infrequent as to create an unconstitutional risk of arbitrariness.  The Court's remedy, developed in subsequent decisions, was to require the state legislatures to "genuinely narrow the class of persons eligible for the death penalty" and the state courts to provide "meaningful appellate review" of death sentences.  In recent years, a number of scholars have addressed the genuine narrowing requirement with empirical research on particular state schemes.

Less attention has been paid to the appellate review requirement and, in particular to Pulley v. Harris, the Court's key case on the issue.  In Pulley, the Court held that comparative proportionality review of death sentences was not constitutionally required in a state's death penalty scheme unless that scheme was "so lacking in other checks on arbitrariness" that it could not otherwise pass constitutional muster.  The Court acknowledged, however, that some form of meaningful appellate review was required. Using California as an object lesson, this article examines both aspects of the Court's opinion: what would make a state scheme so lacking in checks on arbitrariness as to require comparative proportionality review; and what would constitute meaningful appellate review by a court which eschews comparative proportionality review.

The article argues that the California death penalty scheme is that scheme imagined in Pulley — a scheme with virtually no checks on arbitrariness, producing arbitrary sentences and arbitrary executions, and, therefore, a scheme where comparative proportionality should be required.  The article also argues that, in California, there is no meaningful review of death sentences at all — not once in 593 direct appeals in death penalty cases has the California Supreme Court set aside a death sentence on the ground that it was disproportionate, excessive or otherwise aberrant.  Although California is, in this respect, is a distinct outlier, it is not alone among the states in ignoring the Furman requirements. The lesson from California is that the Supreme Court's "meaningful review" of state schemes is long overdue.

September 17, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, September 16, 2015

Oklahoma's top criminal court stays execution of Richard Glossip for two weeks

As reported in local news pieces here and here, Oklahoma Governor Mary Fallin late yesterday refused to delay today's scheduled execution of Richard Glossip amid concerns about his factual guilt.  But today the Oklahoma Criminal Court of Appeals issued a stay of execution for death row inmate Richard Glossip. Here are the basics:

Just before 12 p.m. Wednesday, a stay has been granted for him until September 30. Late Tuesday afternoon, Gov. Mary Fallin said she will not grant Glossip a stay of execution. Just before 5 p.m. Tuesday, Glossip’s attorneys filed the appeal with the Oklahoma Court of Criminal Appeals. It's their last avenue to stop the execution.

Court documents released on Wednesday stated that, "Due to Glossip's last minute filing, and in order for this court to give fair consideration to the materials included with his subsequent application for post-conviction relief, we hereby grant an emergency stay of execution for two weeks. The execution of Richard Eugene Glossip shall be reset, without further order, for September 30, 2015."

During a news conference on Wednesday, the Director of Oklahoma Department of Corrections said he does not know the reasons behind the stay, and that at this time, they are shutting down all procedures.

Prior related post:

September 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence

As reported in this local piece, headlined "Accused gunman in Charleston church shooting proposes guilty plea," a high-profile mass murderer is apparently prepared to cut a plea deal to try to avoid a state capital prosecution. Here are the details and context:

An attorney for the man accused of gunning down nine people at a historic black church in South Carolina said on Wednesday his client is willing to plead guilty to state murder charges if the move would spare him a death sentence.

A guilty plea by Dylann Roof, 21, in exchange for a sentence of life in prison without parole also would spare the victims' families and shooting survivors from the trauma of trial proceedings, attorney Bill McGuire said.

His remarks came during a hearing in Charleston over whether a judge will release 911 calls and police reports about the June 17 massacre during a Bible study meeting at Charleston's Emanuel African Methodist Episcopal church. Judge J.C. Nicholson in July blocked the release of investigative materials in the state's murder case against Roof, who is white, citing concerns about graphic photos of the crime scene and emergency calls that might have recorded the sounds of victims.

Assistant U.S. Attorney Nathan Williams, who is prosecuting Roof in federal court, said the families and survivors were "re-traumatized" every time they heard, saw or read something about the killings. He argued for the documents, including coroner's reports and witness statements, to remain sealed. "It may take years before people are ready to see that," Williams said.

Jay Bender, an attorney for news organizations challenging the gag order, asked the judge to review documents and photos to decide whether some could be released. Media outlets have argued that transparency ensures a defendant's right to a fair trial. "There is an alternative to the imposition of a cloak of secrecy over what has happened in Charleston," Bender said....

In addition to state murder charges, Roof faces 33 federal hate crime and weapons charges that also could result in a death sentence but federal prosecutors have not said if they will pursue that in their case. The federal charges are based on evidence that Roof targeted the black victims because of their race and "in order to interfere with their exercise of religion," U.S. Attorney General Loretta Lynch said.

A few prior related posts:

September 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Federal child porn downloaders complaining to judges about Jared Fogle's (too sweet?) plea deal

This local article from Indiana, headlined "Convicted sex offenders object to Fogle's proposed plea deal," reports that at least a couple of incarcerated federal child pornography offenders have written to a federal judge to complain about how federal prosecutors used their discretion to resolve sex offense charges against former Subway pitchman Jared Fogle. Here are the basics:

Sex offenders in prison right now around the country are writing the judge here in Indiana handling the Jared Fogle case, upset over his possible plea deal.

In the letters — one from an inmate in Tucson, the other from an inmate in Florida — both talk about the time they are serving for distribution of child pornography.  One is serving a 40-year sentence, the other 16.5 years.

They are critical of Fogle's plea deal that could have him serve 5- to 12.5 years behind bars. They argue they are serving far more time for child pornography, and Fogle is also accused of having sex with underage girls.  Both asked for the judge to deny the plea deal.  Fogle's sentencing is set for November 19.

These two inmate letters make for fascinating reads and they can be accessed at this link. Among other stories, these letters provide an interesting perspective on how federal prosecutorial discretion can and does contribute to federal sentencing disparity and on how this disparity is perceived by those most impacted by it.  Notably, in a post last month I asked, Has Jared Fogle gotten a sweetheart plea deal and/or celebrity treatment for sex crimes?, and the question prompted a good comment dialogue.  Obviously, some federal child porn offenders think the answer to this question is obviously yes.

Prior related posts:

September 16, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Does Glossip case reveal Oklahoma's prosecutors as immoral and its judges lacking in moral fiber?

The qustion in the title of this post is prompted by this provocative Slate commentary authored by Robert J. Smith and G. Ben Cohen which is headlined "Groundhog Day Nightmare: Oklahoma is about to execute a man who is probably innocent." Here are excerpts from the piece, including sections with the forceful rhetoric parroted in the title of this post:

Oklahoma is set to execute Richard Glossip, despite grave doubts about his guilt. A chorus of people that includes Republican former Sen. Tom Coburn; Virgin Group CEO Richard Branson; and Barry Switzer, the beloved former Oklahoma Sooners football coach, has called for Oklahoma Gov. Mary Fallin to grant a stay of execution. If she does not, and if the Supreme Court does not step in, Glossip will be put to death Wednesday....

In 1997, Justin Sneed killed Barry Van Treese, a motel owner for whom both Sneed and Glossip worked. The police found Sneed’s fingerprints all over the bloody crime scene and in the victim’s vehicle. Sneed later confessed to the killing. The prosecution’s theory at Glossip’s trial was that Glossip pressured Sneed into murdering Van Treese. What evidence supported the state’s theory? Not much....

The prosecution gave him a sweetheart deal: In exchange for his testimony against Glossip, the state waived the death penalty. The problem is that the substance of Sneed’s testimony at trial was invented by the state....

It is bad enough that Sneed received a deal in exchange for his testimony. It is worse that the detective “educated” Sneed about Glossip being the mastermind. But what’s not only unforgivable, but downright immoral, is that the prosecution put forward the Glossip-as-mastermind theory in a capital case, with a man’s life on the line, when Sneed couldn’t even keep his story straight....

If Oklahoma proceeds with this execution, Glossip will not, unfortunately, be the only plausibly innocent man put to death....

Did Georgia execute an innocent man when it killed Troy Anthony Davis? Did Texas execute innocent men when it put Cameron Todd Willingham and Lester Bower to death? Will Oklahoma add to this tragic list if neither Gov. Fallin nor the Supreme Court stops the execution of Richard Glossip? We honestly do not know. And that’s the problem. How do we preserve the integrity of our justice system and our courts if we send condemned inmates to the lethal injection chamber with no more certainty of their guilt than a coin flip?

Given all that is known today about wrongful convictions, the fallibility of our criminal justice institutions, and their fallibility in identifying these potentially fatal errors, the question should not be Is this person innocent? but rather: Is this a case of uncertain guilt? Whatever principles the state seeks to uphold, whether it is the finality of its judgments or deference to juries or state courts, nothing trumps the risk of executing a person where there is some serious doubt as to his or her guilt.

In Richard Glossip’s case, there is more than “some” doubt.  There is lots of it. No physical evidence ties him to the crime.  There is no motive that withstands scrutiny. The detectives in the case engaged in tactics known to increase the likelihood of witnesses providing false statements.  And the state’s chief witness, Justin Sneed, was unreliable at best, with clear motives for lying. Few of us would buy a used car from Justin Sneed.  Are we prepared to stake the moral fiber of our justice system on his word?  If our answer is no, we must stop the execution of Richard Glossip. His life depends upon it, and so does the soul of our nation’s justice system.

I was a bit dismissive in this prior post of eleventh-hour innocence claims here given that Glossip was twice convicted and sentenced to death (his first conviction was reversed for procedural error). But I cannot help but wonder if my eagerness to question claims of innocence here is a result of my own desire to believe that Oklahoma prosecutors would not be immorally eager to condemn to death (twice) a man based on very weak evidence and that Oklahoma and federal courts would have had the moral fiber to intervene if there was real substance to the innocence claims.

That all said, absent "smoking gun" evidence to provide some more confidence in Glossip's guilt, I can understand why the abolitionist crowd has now garnered broad support for their claim that the Glossip execution should not go forward.  Still, I continue to be deeply troubled that a case which produced two jury convictions well over a decade ago, and which has been at the center of the national death penalty debate for nearly all of 2015, is  only now struggling at the very minute with what is the most fundamental and basic question in any and every criminal case.

Prior related post:

September 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Tuesday, September 15, 2015

"Unequal Assistance of Counsel"

The title of this post is the title of this notable new paper by Peter Joy now available via SSRN. Here is the abstract:

There is now, and has always been, a double standard when it comes to the criminal justice system in the United States.  The system is stacked against you if you are a person of color or are poor, and is doubly unjust if you are both a person of color and poor.  The potential counterweight to such a system, a lawyer by one’s side, is unequal as well.  In reality, the right to counsel is a right to the unequal assistance of counsel in the United States.

The unequal treatment based on the color of one’s skin is reflected by the racial disparity throughout the criminal justice system in which minority racial groups are involved in the criminal justice system as suspects and defendants at rates greater than their proportion of the general population.  This is illustrated by the “driving while black” phenomenon in which law enforcement officers initiate traffic stops against persons of color and subject them to searches at a higher rate than whites, even though law enforcement is more likely to find contraband on white drivers than persons of color.

The Sixth Amendment promises the effective assistance of counsel to every person accused of a crime where incarceration is a possible punishment.  This guarantee suggests that everyone, rich and poor, is equal before the law.  But the reality of the criminal justice system is much different for the majority of those charged with crimes.  If one does not have the financial means to hire effective counsel, or is poor and not lucky enough to have a well-funded, effective public defender or appointed counsel, the defendant’s right to counsel is unequal.  This disparity is driven largely by the wealth of the accused and falls most harshly on people of color, who are twice as likely as whites to live in poverty and are accused of crimes at rates much higher than their proportion of the population.  As a result, class and race are largely determinative of the lawyer, and often the amount of justice one receives.

This article explores how unequal assistance of counsel contributes to unequal justice.  The article begins with a brief overview of racial disparities in the ways laws are enforced.  The initial step in the criminal justice system, whether the police stop someone, can lead to arrest, charges, and the need for a lawyer.  Next, it analyzes the systemic barriers to effective assistance of counsel at the state level, which is driven largely by excessive caseloads and an ineffective assistance of counsel standard that tolerates bad lawyering.  It concludes with strategies for achieving more effective assistance of counsel, which emphasize the ethical imperative to provide meaningful assistance of counsel, the importance of data collection by public defender systems, and systemic litigation that positions assistance of counsel claims prior to trials.

September 15, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Two very interesting (and very different) long reads about mass incarceration and drug dealing

I recently noticed two new (and very different) long-form commentary pieces that both ought to be of interest to deep thinkers about crime and punishment. Both defy easy summarization, so I will just provide links and the extended headline of the pieces and encourage readers in the comments to highlight important themes in either or both:

September 15, 2015 in Drug Offense Sentencing, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Monday, September 14, 2015

Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case

In four weeks, the US Supreme Court will hear oral argument in Montgomery v. Louisiana.  Here, via this SCOTUSblog posting and this official SCOTUS page, are the questions that the Justices will be considering in Montgomery:

Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?

Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison.

Because both of these questions engage many interesting, important and dynamic issues, I am planning to do a (lengthy?) series of posts about this case and the various arguments that have been presented to the Justices via amicus briefs (including one I filed thanks to the efforts of good folks at the Columbus offices of Jones Day).  As the title of this post reveals, I have decided to use "Montgomery wards" as the cheeky title for this coming series of posts.

Notably, as this new SCOTUSblog posting highlights, it would now appear that the Justices share my sense that the Montgomery case raises many interesting, important and dynamic issues because they have now scheduled additional argument time for the case.  Here are the basics via Lyle Denniston's SCOTUSblog report:

The Supreme Court on Monday added fifteen minutes to the argument schedule for its hearing October 13 on Montgomery v. Louisiana, a case that could decide which juveniles convicted of murder can take advantage of a 2012 decision limiting sentences of life without parole for minors.  The added time will allow a Court-appointed attorney to argue a question about the Court’s authority to actually rule on the legal issue in the case.

In March, the Justices agreed to hear the appeal of Henry Montgomery of Baton Rouge, who is seeking retroactive application of the Court’s decision in Miller v. Alabama, which had all but eliminated states’ power to sentence youths to life without parole, as punishment for committing a murder when they were under the age of eighteen.  In taking on the case, however, the Court also added the question whether it has jurisdiction to review and rule on the Louisiana Supreme Court decision refusing to apply the Miller precedent to cases that had become final before June 25, 2012, when Miller was decided.   Louisiana had raised that issue in a filing in an earlier case on the juvenile sentencing question. 

Instead of the usual one hour of argument time, the Court in the Montgomery case will hear seventy-five minutes.  The time will be divided this way: the Court-appointed attorney, Richard Bernstein of Washington, D.C., will have fifteen minutes to argue against the Court’s jurisdiction, Montgomery’s attorney will have fifteen minutes to argue both points, an attorney from the office of the U.S. Solicitor General will have fifteen minutes to argue both issues, and a lawyer for the state of Louisiana will have thirty minutes of time to argue both questions.  The order also said that Bernstein and Montgomery’s lawyer will be allowed to save time for rebuttal.

The federal government, in a brief filed by the Solicitor General, supported Montgomery’s plea to apply Miller retroactively and argued that the Court does have jurisdiction to decide that question.  The brief noted that there are twenty-seven inmates in federal prisons whose sentences could be affected by the retroactivity issue.

September 14, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Is a capital case the right kind of vehicle for SCOTUS to consider solitary confinement?

The question in the title of this post is prompted by this new New York Times piece by Adam Liptak headlined "Virginia Has Solitary Confinement Case, if Justices Want It." Here are excerpts:

The Supreme Court seems eager to hear a case on the constitutionality of a distinctively American form of punishment: prolonged solitary confinement. “Years on end of near total isolation exact a terrible price,” Justice Anthony M. Kennedy wrote in a concurrence in a case in June. Justice Stephen G. Breyer echoed the point in a dissent in a case later that month.

An appeal from Virginia materialized almost immediately. Now the justices must weigh whether it has the right features — whether it is, in legal jargon, a good vehicle — to serve as the basis for a major decision on extended solitary confinement, which much of the world considers torture.

On the plus side, the case asks the sort of focused and incremental question that the justices often find attractive: May states automatically put all death row inmates in solitary confinement?

Last week, Mark R. Herring, Virginia’s attorney general, filed a brief urging the court to turn down the appeal. It is, he said, the wrong vehicle to address “the broader concerns recently voiced by Justices Kennedy and Breyer.” For starters, Mr. Herring wrote, “the case is likely to become moot before it can be decided.” That is because the state intends to execute the inmate who brought the challenge, Alfredo R. Prieto, on Oct. 1.

More generally, Mr. Herring wrote, Virginia is the wrong state in which to examine the issue of prolonged solitary confinement on death row because its capital justice system is exceptionally efficient. Inmates in other states can spend decades in solitary confinement, he wrote, but Virginia generally executes condemned inmates seven to 10 years after their convictions.

Mr. Prieto has been on death row for about seven years. But that was enough isolation, he told the justices, to have caused him mental agony. In a 2013 deposition, the warden of the prison where Mr. Prieto is serving his sentence seemed to concede the inhumanity of solitary confinement. “There is real importance to getting out and being with other people, I agree, and not being 24/7 in a cell,” said the warden, Keith Davis. “We, as humans, we don’t survive very well that way with lack of human contact.”

Later that year, a federal trial judge ruled in Mr. Prieto’s favor. “He must spend almost all of his time alone,” deprived of contact even with fellow prisoners, the judge, Leonie M. Brinkema, wrote. In theory, family members could visit on weekends in a room with a glass partition. “In actuality,” she said, “no one ever comes.”

Mr. Prieto, she said, “has not engaged in any of the behaviors that would normally support placement in segregated confinement,” and was “by all accounts a model prisoner.” On the other hand, he has a chilling criminal record. Mr. Prieto was on California’s death row for the 1990 rape and murder of a 15-year-old girl when, in 2005, DNA evidence linked him to a 1988 rape and double murder in Virginia. He was extradited to Virginia and found guilty....

In March, a divided three-judge panel of the federal appeals court in Virginia reversed Judge Brinkema’s ruling, though even the majority said the state’s approach was harsh. “Of course,” Judge Diana Gribbon Motz wrote for the majority, “the Supreme Court could prescribe more rigorous judicial review.”

Last week, Mr. Herring, the state’s attorney general, urged the Supreme Court to defer to prison officials in the case, Prieto v. Clarke, No. 15-31. “Death row offenders are sui generis,” he wrote. “States are entitled to make the judgment that death-sentenced offenders, as a class, should be confined in maximum-security conditions.”...

In June, Justice Kennedy lamented that “the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest.” That seemed to change over the summer. In July, President Obama ordered the Justice Department to review the use of solitary confinement in federal facilities....

This month, California settled a lawsuit brought by the Center for Constitutional Rights by agreeing to cut back sharply on solitary confinement. The next day, a group representing the nation’s corrections officials called for “efforts to limit or end extended isolation.”

Things are changing even in Virginia, perhaps as a consequence of Mr. Pietro’s lawsuit. In a sworn statement filed last month in a different case, Mr. Clarke, the corrections official, said death row inmates can now watch television and play games like chess or checkers with up to three other condemned prisoners for an hour a day. They can also have weekly “contact visits” with family members. These can include “one brief kiss, a handshake and/or an embrace.”

Plans are afoot, Mr. Clarke added, for an outdoor recreation yard that will allow small groups of death row inmates to play basketball and exercise together. It should be completed by the end of October, not long after Mr. Prieto’s scheduled execution.

Regular readers likely know that I believe and often lament that capital cases often get too much attention from the Supreme Court (and others) relative to other cases involving much less serious crimes and much more sympathetic offenders. Nevertheless, as this piece notes, Virginia's blanket policy of putting all death-row defendants in solitary might make this case an appropriate (and certainly interesting) setting for a foray into what the Eighth Amendment might say these days about extreme forms of imprisonment.

September 14, 2015 in Death Penalty Reforms, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"How Obama can use his clemency power to help reverse racism"

The title of this post is the headline of this provocative new MSNBC commentary authored Mark Osler and Nkechi Taifa. Here are excerpts:

In the remaining months of his second term, President Barack Obama has the chance to deliver justice for thousands of people given overly-harsh sentences for drug crimes.  The White House is probably now contemplating the next batch of clemency grants, which is expected in October.

It is likely that the vast majority of those whose sentences would be shortened will be African American. That is as it should be given that past laws and policies, as well as prosecutors and presidents, have tilted the criminal justice system disproportionately against them.

On average, blacks face unequal treatment at each stage of the criminal justice system. They are stopped and arrested more frequently than others; they are less likely to receive favorable terms on bail; and they are more likely to be victims of prosecutorial misconduct. Blacks are more likely to accept unfair plea bargains and be sentenced to rigid, lengthy mandatory minimums, or even death.  Race mattered when blacks were disproportionately targeted, imprisoned, and sentenced beyond the bounds of reason.  Race should also matter in providing relief via clemency today.

Despite the facially neutral nature of current laws that do not intentionally discriminate, disparate treatment is nevertheless sewn into the structural fabric of institutions, allowing bias to occur without direct action by a specific person.

Today’s racism is subtle and structurally embedded in many police departments, prosecutor offices, and courtrooms.  It is found in laws that look fair, but nevertheless have a racially discriminatory impact.  For example, from 1986 through 2010, the federal sentencing guidelines and the primary federal narcotics statute mandated the same sentence for five grams of crack as they did for 500 grams of powder cocaine....

Moreover, we know that even now prosecutors use the law unfairly to punish black defendants.  Writing in the Daily Beast, Jay Michaelson reports that 95% of elected prosecutors are white, and that those prosecutors disproportionately use mandatory minimum sentences to incarcerate black defendants for longer periods of time than similarly situated whites.  Again, there is seldom a “smoking gun” tying white prosecutors to specific acts of racism.  But there is a growing consensus that the system is flawed and structurally biased against blacks.

The number of African-Americans jailed under these laws and policies soared in the past few decades.  Yet previous presidents predominantly used their power to pardon to benefit high profile white men, including Vice President Dick Cheney’s former chief of staff, Scooter Libby, and Clinton donor and financier Marc Rich.  Indeed, President George W. Bush used the pardon power 200 times, but fewer than 16 of those were granted to black petitioners who have traditionally been unconnected to money, power and influence....

As the president’s clemency program accelerates over the 16 months remaining in his second and final term, we hope that he will look at the impact race has played in meting out unjust sentences.  We hope that he will broadly consider those who are worthy of a shortened sentence and a lengthened term of freedom and responsibility.  And we hope that among this group will be multitudes of eligible black men and women who will be able to be reunited with families and communities.  This does not reflect a racial bias.  It simply reflects the gut-wrenching reality of those disproportionately over-sentenced in the first place.

September 14, 2015 in Clemency and Pardons, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, September 13, 2015

Alabama Chief Justice laments mandatory LWOP drug sentence for 76-year-old offender

As reported in this AP article, "Alabama Chief Justice Roy Moore says the case of a 76-year-man sentenced to life without parole for a drug offense shows the need to change sentencing laws."  Here is more about the notable separate opinion authored by the top jurist of the the Cotton State:

Moore issued a special writing Friday as the Supreme Court refused to overturn the case of Lee Carroll Brooker. "I believe Brooker's sentence is excessive and unjustified," Moore wrote.

Brooker lived with his son in Houston County, and court documents show police found a marijuana-growing operation there during a search in 2013. The elderly man was convicted of drug trafficking last year, and a judge sentenced him to life without parole because of past robbery convictions in Florida. His son was also convicted. Moore writes that the life-without-parole sentence for a non-violent drug offense shows "grave flaws" in Alabama's sentencing system.

"A trial court should have the discretion to impose a less severe sentence than life imprisonment without the possibility of parole," Moore added. "I urge the legislature to revisit that statutory sentencing scheme to determine whether it serves an appropriate purpose."

The full opinion by Chief Justice Moore is available at this link.

September 13, 2015 in Drug Offense Sentencing, Examples of "over-punishment", Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)