Wednesday, April 23, 2014
Round-up of some reactions to/reports on today's notable sentencing developments
My blogging cup runneth over today as I try to find time to read and process the Supreme Court's big child porn restitution in Paroline (basics here) and DOJ's new clemency guidelines (basics here). Before I find time to share some of my reactions and perspectives (which may take a couple of days as I head on the road), I figured I can and should round-up here some of the reactions and perspectives of others of note:
Reactions to Paroline child porn restitution ruling:
From victim "Amy" here, "Disappointment at the Supreme Court – Amy’s Reaction"
From the National Center for Victims of Crime here, "Child Pornography victims need a roadmap to restitution, and Congress can provide it"
From the National Crime Victim Law Institute here, "Mixed Message From U.S. Supreme Court to Crime Victims"
From Paul Cassell at The Volokh Conspiracy, "The Supreme Court promises child pornography victims full restitution 'someday.' How long is that?"
From Rick Hasen at the Election Law Blog here, "Shorter Supreme Court in Child Pornography Case: Congress, Please Override Us"
Reactions to/reports on DOJ's new clemency guidelines:
From CNN here, "Rules change means more drug offenders eligible for clemency"
From Families Against Mandatory Minimums here, "Clemency Project 2014 Praises Justice Department for Breathing New Life Into Clemency Process"
From FoxNews here, "Krauthammer: Justice Department clemency initiative is 'lawlessness'"
From MSNBC here, "Justice finally comes to the pardons office and perhaps to many inmates"
April 23, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Justice Department formally announces its clemency initiative plans and guidelines
Announcing New Clemency Initiative, Deputy Attorney General James M. Cole Details Broad New Criteria for Applicants
As part of the Justice Department’s new clemency initiative, Deputy Attorney General James M. Cole announced six criteria the department will consider when reviewing and expediting clemency applications from federal inmates.
We are launching this clemency initiative in order to quickly and effectively identify appropriate candidates, candidates who have a clean prison record, do not present a threat to public safety, and were sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate.
SCOTUS splits the difference for child porn restitution awards in Paroline
The Supreme Court handed down two criminal law opinions this morning, and the big one for sentencing fans is Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here). Intriguingly, Justice Kennedy authored opinion of the Court with Justices Ginsburg, Breyer, Alito and Kagan joining.. Chief Justice Roberts, Jr. issued a dissenting opinion joined by Justices Scalia and Thomas, while Justice Sotomayor issued a distinct a dissenting opinion. Here is the heart of the majority's ruling:
In this special context, where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but but where it is impossible to trace a particular amount of losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim’s general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount. The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child-pornography crimes, even simple possession, affect real victims.
There remains the question of how district courts should go about determining the proper amount of restitution. At a general level of abstraction, a court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.
Good luck with that, district courts! Snide comments aside, this ruling confirms my sense that these are really hard issues and that a majority of the Justice were uncomfortable with either a complete victory (which Justice Sotomayor urges) or a complete loss (which CJ Roberts urges) for child porn victims. Lots more on this ruling after I have a chance to process it fully.
President Bartlet urges Congress to pass the Smarter Sentencing Act
I am pleased and intrigued to learn via this Mother Jones piece, headlined "Martin Sheen Reprises His 'West Wing' Role — for a Sentencing Reform PSA," that a high-profile celebrity is making the case for federal sentencing reform. Here are the details (along with links):
On Tuesday, Brave New Films released a new PSA calling on Congress to pass the Smarter Sentencing Act. The proposed sentencing-reform legislation aims to reduce prison populations and costs by creating less severe minimum terms for nonviolent drug offenders. (On Monday,Yahoo News reported that President Obama could grant clemency to "hundreds, perhaps thousands" of nonviolent drug offenders by the end of his second term.) The video was produced in partnership with the ACLU and Families Against Mandatory Minimums (FAMM), and stars actor Martin Sheen. It's titled "President Bartlet has a message for Congress," in reference to Sheen's role on Aaron Sorkin's political drama The West Wing.
"When BNF joined with FAMM and the ACLU to rally support for the Smart Sentencing Act, we couldn't think of a better spokesperson than Martin Sheen," Brave New Films president Robert Greenwald said. "When he portrayed President Bartlett on The West Wing, his character commuted the sentences of nonviolent drug offenders. In the real world, Martin Sheen has been an advocate for sentencing reform and alternatives to the harsh, long prison sentences we give to nonviolent drug offenders."
Tuesday, April 22, 2014
Ohio prosecutors author lengthy minority report assailing work of death penalty task force
As reported in this local article, headlined "Critics: Supreme Court task force's death penalty recommendations would create legal 'nightmares'," Ohio prosecutors involved with the work of a task force created by the Ohio Supreme Court and the Ohio Bar Association have now circulated a lengthy draft minority report in response to the lengthy draft task force's report recommending 56 modifications to the administration of capital punishment in the state. The local article provides this summary the basics of this capital battle, along with links to both documents:
A series of capital punishment reforms being considered by a state Supreme Court task force would “render Ohio’s death penalty inoperable,” according to a draft report being circulated by critics on the panel, including many county prosecutors.
Earlier this month, the task force released a list of draft recommendations that, among other things, called for limits on when the death penalty could be sought, heightened evidence requirements, and the creation of a panel that would have to approve death penalty charges before cases could proceed.
According to the task force’s draft minority report, released Tuesday by the Ohio Supreme Court, many of the recommendations “would establish a series of procedural and legislative nightmares.”
“Some of the recommendations would tie the death-penalty system up in knots, creating procedural and litigative traffic jams that would potentially tie up particular cases in litigation even more than is already occurring,” the report stated.
Franklin County Prosecutor Ron O'Brien, along with representatives of Cuyahoga County Prosecutor Timothy McGinty and Hamilton County Prosecutor Joseph Deters, were involved in preparing the task force's dissent.
Here are are the first two paragraphs from the opening of the draft minority report:
The Joint Supreme Court/Ohio State Bar Association Task Force to Review the Administration of Ohio’s Death Penalty (hereinafter “Task Force”) was tasked with the assessment of whether the death penalty in Ohio is administered in the most fair and judicious manner possible; and to determine if the administrative and procedural mechanisms for the administration of the death penalty in Ohio are in proper form or in need of adjustment. The Task Force’s mandate specifically provided that “[t]he task force shall not review or report on the issue of whether Ohio should or should not have the death penalty.”
In several of its recommendations, however, the Task Force veered off its narrow mandate and is making recommendations that are anti-death penalty. The work of the Task Force was strongly influenced by a pro-defense majority bent on an agenda of abolition, not fairness.
Intriguing SCOTUS split over reasonable suspicion for traffic stop based on 911 call
The Supreme Court handed down two notable opinions this morning, and the one that should interest criminal justice fans is sure to get less attention than the one concerning state affirmative action laws. Nevertheless, the split of the Justices alone is intriguing in the 5-4 Fourth Amendment ruling in Navarette v. California, No. 12-9490 (Apr 22, 2104) (available here). Writing for the Court, here is how Justice Thomas's opinion begins and ends:
After a 911 caller reported that a vehicle had run her off the road, a police officer located the vehicle she identified during the call and executed a traffic stop. We hold that the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated....
Like White, this is a “close case.” 496 U. S., at 332. As in that case, the indicia of the 911 caller’s reliability here are stronger than those in J. L., where we held that a bare-bones tip was unreliable. 529 U. S., at 271. Although the indicia present here are different from those we found sufficient in White, there is more than one way to demonstrate “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Cortez, 449 U. S., at 417–418. Under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspicion that the driver of the reported vehicle had run another vehicle off the road. That made it reasonable under the circumstances for the officer to execute a traffic stop. We accordingly affirm.
Justice Scalia authored a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor and Kagan. Here is how it begins and ends:
The California Court of Appeal in this case relied on jurisprudence from the California Supreme Court (adopted as well by other courts) to the effect that “an anonymous and uncorroborated tip regarding a possibly intoxicated highway driver” provides without more the reasonable suspicion necessary to justify a stop.... Today’s opinion does not explicitly adopt such a departure from our normal Fourth Amendment requirement that anonymous tips must be corroborated; it purports to adhere to our prior cases, such as Florida v. J.L., 529 U. S. 266 (2000), and Alabama v. White, 496 U.S. 325 (1990). Be not deceived.
Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures. I would reverse the judgment of the Court of Appeal of California....
The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.
Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of single instance of careless driving. I respectfully dissent.
Monday, April 21, 2014
Is Prez Obama likely to grant clemency to "hundreds, perhaps thousands" of imprisoned drug offenders?
The question in the title of this post is prompted by this notable new and lengthy Yahoo News article headlined "Obama plans clemency for hundreds of drug offenders: Barbara Scrivner's long quest for mercy tests a president's will — and her own faith." The article begins with focus on a woman deep into "serving a 30-year sentence in federal prison for selling a few ounces of methamphetamine," but goes on to discuss drug sentencing more generally. And these excerpts quoting a "serious administration official" really caught my attention:
Now, in his final years in office, Obama has trained his sights on prisoners like Scrivner, and wants to use his previously dormant pardon power as part of a larger strategy to restore fairness to the criminal-justice system. A senior administration official tells Yahoo News the president could grant clemency to "hundreds, perhaps thousands" of people locked up for nonviolent drug crimes by the time he leaves office — a stunning number that hasn't been seen since Gerald Ford extended amnesty to Vietnam draft dodgers in the 1970s.
The scope of the new clemency initiative is so large that administration officials are preparing a series of personnel and process changes to help them manage the influx of petitions they expect Obama to approve. Among the changes is reforming the recently censured office within the Justice Department responsible for processing pardon petitions. Yahoo News has learned that the pardon attorney, Ronald Rodgers, who was criticized in a 2012 Internal watchdog report for mishandling a high-profile clemency petition, is likely to step down as part of that overhaul. Additional procedures for handling large numbers of clemency petitions could be announced as soon as this week, a senior administration official said, though it could take longer....
When it came to using his only unfettered presidential power — to pardon felons and to reduce the sentences of prisoners — Obama was incredibly stingy in his first term. Vanita Gupta, deputy legal director of the American Civil Liberties Union, calls his record on mercy "abysmal." He pardoned just 22 people — fewer than any modern president — and commuted the sentence of just one. An applicant for commutation like Scrivner had just a 1-in-5,000 chance of getting a reduced sentence with Obama in his first term — compared with a 1-in-100 chance under Presidents Reagan and Clinton, according to an analysis by ProPublica.
According to former and current administration officials, the fault for this lay mostly at the feet of the Office of the Pardon Attorney, a small corner of the Justice Department that sifts through thousands of pardon and commutation petitions each year. The pardon attorney, former military judge Ronald Rodgers, sends his recommendations of whether or not to grant the petitions to the Deputy Attorney General’s office, which then sends them on to the White House. The pardon attorney was recommending that the president deny nearly every single petition for a pardon or a reduced sentence, according to one senior official in the Obama administration....
But even though the president was almost certainly aware that the pardon process was deeply flawed, he took no steps to fix it. In 2009, Obama’s top lawyer, Gregory Craig, drafted a proposal urging a more aggressive use of the presidential pardon and clemency power, and calling the current system broken. One of Craig's recommendations was to take the pardon attorney's office out of the Department of Justice entirely, so that the people vetting clemency petitions were not so close to the system that put prisoners away in the first place. "I was of the belief that the current system for making pardon decisions was broken and it needed to be reformed," Craig said. His suggested reforms weren't implemented, and he left the White House that year....
Near the end of his first term, Obama expressed his frustration with how few positive clemency petitions were landing on his desk. He began meeting with White House Counsel Kathy Ruemmler and Holder to discuss how his pardon power could fit into his larger strategy of making the criminal-justice system fairer. (In mid-December, Holder followed up with a memo to Obama laying out his priorities for a second term in which he endorsed a more robust use of the pardon power as part of a broader criminal-justice reform initiative.) Over a series of five or 10 discussions, the president said he wanted more recommendations for pardons and commutations getting to his desk. The president complained that the pardon attorney's office favored petitions from wealthy and connected people, who had good lawyers and knew how to game the system. The typical felon recommended for clemency by the pardon attorney was a hunter who wanted a pardon so that he could apply for a hunting license....
[In] February, the Justice Department announced a new push for clemency for nonviolent drug offenders — an initiative that came out of Obama's meetings with Ruemmler and Holder. Deputy Attorney General Jim Cole solicited private defense attorneys around the country for more petitions for mercy from prisoners serving lengthy sentences for drug crimes that would most likely be prosecuted differently today, due to changes in the law. A group of advocates have created "Clemency Project 2014" to organize the petitions and send them to the Justice Department — they expect thousands to pour in....
But questions still remain about whether the pardon attorney's office is actually capable of fairly and quickly processing Scrivner's and the thousands of other expected petitions. Holder has asked for seven additional staffers for the office in his 2015 budget request, but it's unclear when they would start.
Meanwhile, more than a year after pardon attorney Rodgers was called out by the Justice Department for misrepresenting Aaron's petition to the White House, the former prosecutor and military judge is likely to finally be pushed out and replaced, a senior administration official tells Yahoo News. Rodgers was not present in a March meeting of the Justice Department, White House officials and advocates about "Clemency Project 2014," suggesting that he was already being internally marginalized.
Advocates have long been skeptical that a significant number of clemency petitions will actually get processed quickly if the current pardon attorney remained in place, given the entrenched culture there. A former pardon attorney's office employee said he believes the office could try to run out the clock on the petitions, knowing full well that the president has only a few years left. New leadership could change that....
Last month, the president walked into the East Room to greet dozens of U.S. attorneys who traveled to the White House to discuss criminal-justice issues. The president told them he was expecting an influx of clemency applications for his new push, and warned that he wanted them to personally examine them all and not "reflexively" deny them. "I take my clemency authority very seriously," he told them.
With just a few years left of Obama's presidency, Scrivner, and others, will soon find out if he means it.
A few of many recent and older posts concerning federal clemency practices:
- "White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?
- Deputy AG Cole's remarkable remarks to the NYSBA
- Curious DOJ clemency campaign continues through meeting with defense groups
- "How to Awaken the Pardon Power"
- New Slate pitch for Prez to use clemency powers to address crack sentencing disparities
- "Clemency Reform: We're Still Waiting"
- New York Times editorial assails Prez Obama's considerable clemency failings
- Updated numbers on President Obama's disgraceful clemency record
- ProPublica reveals more ugliness in federal clemency process
- Reflecting on Obama Administration's latest "half-way" approach to clemency
- Terrific upcoming NYU Law conference on "Mercy in the Criminal Justice System"
- Prez Obama commutes 15-year sentence for marijuana offender down to 11.5 years
- Critical reflections on the Cantu commutation ... aka why some federal prosecutors perhaps deserve to be demonized
UPDATE: Though balky blogging software precluded adding comments and updating this post, I can finally now post this link to an official statement from the Justice Department and AG Holder about still-emerging clemency plans. here is how it starts:
In an important step to reduce sentencing disparities for drug offenders in the federal prison system, Attorney General Eric Holder on Monday announced that the Justice Department will soon detail new, more expansive criteria that the department will use in considering when to recommend clemency applications for President Obama’s review.
In anticipation of the increase of eligible petitioners, the Justice Department is preparing to assign lawyers -- with backgrounds in both prosecution and defense – to review the applications. “The White House has indicated it wants to consider additional clemency applications, to restore a degree of justice, fairness and proportionality for deserving individuals who do not pose a threat to public safety,” said Attorney General Holder in a video message posted on the department’s website. “The Justice Department is committed to recommending as many qualified applicants as possible for reduced sentences.”
Later this week, Deputy Attorney General James M. Cole is expected to announce more specific details about the expanded criteria the department will use and the logistical effort underway to ensure proper reviews of the anticipated wave of applications.
SCOTUS takes up two criminal cases, including yet another ACCA application question
As reported here at SCOTUSblog, the Supreme Court this morning granted cert on three new cases, two of which involve criminal justice matters:
The Supreme Court agreed on Monday to rule on whether the president has the sole power to decide on the nature of the U.S. government’s formal relations with Israel. That issue arises out of a dispute between the White House and Congress over whether Israel should be noted as the place of birth of a U.S. citizen born in Jerusalem....
The Court granted two other cases, the first dealing with the constitutional implications of a police traffic stop that turned out to be based upon a mistake by the officers (Heien v. North Carolina), and the second focusing on whether possession of a shotgun should be treated as a violent felony for purposes of federal criminal sentencing (Johnson v. United States).
Since I was lamenting earlier this month in this post that the Justices seem to have little interesting in criminal justice issues of late, I suppose I should be excited by these two new grants. But my excitement is surely tempered by the fact that the new sentencing issue in Johnson is just yet another variation on the statutory questions surrounding the reach and application of the Armed Career Criminal Act. That said, because even a ACCA sip of sentencing water is refreshing in a SCOTUS desert of a docket, I am still intrigued and grateful there iare some new SCOTUS cases for criminal justice and sentencing fans to now follow closely.
Sunday, April 20, 2014
Gov Chris Christie talking up drug sentencing reform as a pro-life commitment
As reported via this entry at Mediate, last week New Jersey Governor Chris Christie connected drug sentencing reform to another social issue frequently stressed by Republican officials and politicians. Here are the interesting details:
New Jersey Gov. Chris Christie delivered a message to his fellow members of the Republican Party on Thursday: being pro-life means reforming America’s drug laws and criminal sentencing procedures. Christie has long advocated for drug treatment programs as a means of reforming the country’s prison system, but Christie took a new tactic on Thursday when he framed that advocacy as a pro-life argument.
“I’m pro-life, and I believe strongly in the sanctity of life,” Christie told an audience in Jersey City on Thursday. Addressing his fellow Republican governors, Christie said that “it’s great to be pro-life, but you need to be pro-life after they get out of the womb, too.”
“If we believe in the sanctity of life, then we need to believe in how life is precious for every moment that God gives us,” the governor continued. “If, in fact, that we believe life is precious — and I do — then the life of the drug-addicted teenager who has been arrested for the sixth time is just as precious as the life of any one of my children.”
Christie said that conservatives don’t want violent people on the street, and there is a “class of people” who deserves to be incarcerated, but there is another “class of people” who will benefit more from “help” than punishment. “I don’t believe this is a conservative, or moderate, or liberal issue,” Christie concluded. “I don’t believe this is a Republican or Democrat issue. Because, let me tell you, I know as many drug-addicted Republicans as I know drug-addicted Democrats.”
Some older and recent posts on the "new politics" of sentencing reform:
- Notable talk of sentencing reform at CPAC conference
- "G.O.P. Moving to Ease Its Stance on Sentencing"
- Notable inside-the-Beltway discussion of modern sentencing politics
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Another notable GOP member of Congress advocating for federal sentencing reform
- Conservative group ALEC joins the growing calls for sentencing refom
- Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?
- Effective Heritage analysis of federal MMs and statutory reform proposals
- "Holder and Republicans Unite to Soften Sentencing Laws"
- "Right on Crime: The Conservative Case for Reform" officially launches
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
Saturday, April 19, 2014
"Blackstone's Curse: The Fall of the Criminal, Civil, and Grand Juries and the Rise of the Executive, the Legislature, the Judiciary, and the States"
The title of this post is the title of this notable new article by Suja Thomas now available via SSRN which should be of special interest to fans of juries. Here is the abstract:
When we watch television and movies, criminal, civil, and grand juries are portrayed as performing significant roles in our government. It may come as a surprise to most Americans to learn that despite the presence of the jury in three different amendments in the Constitution, juries play almost no role in government today. When America was founded, juries functioned differently — as an integral part of government in both England and the colonies.
This Symposium Article, a chapter in my forthcoming book, tells a story about this change in the power of the jury. Between the founding in the late eighteenth century and today, power shifted from juries to other parts of government — to institutions that juries were to check. So as power in the criminal, civil, and grand juries has decreased over time, the powers of the executive, the legislature, the judiciary, and the states have increased. Similar stories have been told about shifts in power, for example, from the legislative branch to the judicial branch, but never has a story been told about an institution like the jury that has absolutely no power to protect and take back its own authority. Of course, the jury has arguably not fallen or has risen through other changes. This topic will be introduced later in this chapter and developed in a future chapter. As will be argued subsequently, however, the substance of the jury's power under the Constitution has fallen.
Friday, April 18, 2014
Should Prez Obama create a "Presidential Commission on Mass Incarceration"? Who should be on it?
The questions in the title of this post are prompted by one of the executive actions suggested earlier this week the Brennan Center for Justice in this new report titled "15 Executive Actions to Overcome Government Dysfunction." Notably, as listed here, at least three of the suggested actions are focused on criminal justice matters that should be of special interest to sentencing fans:
9. Create a Presidential Commission on Mass Incarceration, modeled after the “Kerner Commission.”
10. Issue an executive order directing federal agencies to recast their criminal justice grants in a Success-Oriented Funding model.
11. Direct the Justice Department to identify federal prisoners to whom the Fair Sentencing Act would retroactively apply, and recommend commutations for all those eligible, barring exceptional circumstances.
The first proposal of these three struck me as especially novel and interesting, and here is part of the full report's discussion of the proposal:
With only 5 percent of the world’s population, the United States has 25 percent of its prisoners. More than 2 million Americans are behind bars. A quarter of the nation’s adult population has a criminal record. The prison population has increased sevenfold since 1970. The country spends a quarter of a trillion dollars a year on criminal justice, but true costs are wider: Economic and social impacts on families and children can continue for generations. The explosion in our correctional population extends far beyond prison: pre-trial detention, parole and probation supervision, and those with arrest records.
Public safety does not compel incarceration of this scope. More than half of prisoners are serving time for drug or nonviolent crimes. One in four new prison admissions are for violations of parole. 106 One in five people behind bars are simply awaiting trial.
Yet, the epidemic of mass incarceration hides in plain sight. Most Americans are unaware of it. Those who are aware are not mobilized to act.
Progressives and conservatives have begun to seek action. Several states have taken up reforms in recent years. Momentum is increasing in Washington. Last year, Attorney General Eric Holder announced the “Smart on Crime” initiative, calling for federal prosecutors to seek harsh sentences only for the most serious drug traffickers and other reforms.
These federal and states fixes, however, have been piecemeal rather than systemic. Full change is not possible without wide public support. Mass incarceration must be identified as a national problem requiring national attention. Though jurisdictions vary in the minutia of their justice systems, the overall drivers of the incarceration explosion are similar across the country.
Federal legislation to create a national commission on criminal justice has failed to pass repeatedly. This year, Congress created the Chuck Colson Task Force, named after the founder of Prison Fellowship. It will aim to study the federal prison system to alleviate overcrowding. A similar assessment should be made of the far broader problem.
The president can help make mass incarceration visible by creating a National Commission on Mass Incarceration of leading bipartisan policymakers and civic leaders. He can do so through an executive order or a presidential memorandum. And he can avail himself of a high profile venue, such as a commencement address, to announce the commission.
Such a panel could be modeled after the National Advisory Commission on Civil Disorders (chaired by Illinois Governor Otto Kerner, Jr.). President Lyndon B. Johnson created the “Kerner Commission” to study the causes of urban riots. The National Commission on Mass Incarceration should similarly study the current drivers of the growth in federal and state prison and jail populations. It should examine the accompanying economic and societal toll. And, it should issue concrete policy recommendations to achieve a measureable goal — for example, cutting the nationwide incarcerated population by 25 percent by 2025.
Proposals should focus on “front-end” changes that help stem the influx of people into the pipeline to prison.
The Kerner Commission’s members included New York City Mayor John Lindsay, Sen. Edward Brooke of Massachusetts, Litton Industry founder Charles Thornton, NAACP head Roy Wilkins, and Atlanta police chief Herbert Turner Jenkins. These prominent public figures helped bring national attention to the issue of race. The National Commission on Mass Incarceration should include similar public and civic leaders. Such a commission would draw the nation’s attention to this overlooked issue and, most importantly, catalyze action.
Regular readers will not be surprised to hear I like both the style and substance of this proposal. Thus, to answer my own post-title question, I do think Prez Obama should create a Presidential Commission on Mass Incarceration. (And, of course, I think I should be on this Commission along with Bill Otis and perhaps many other (but not all other) frequent commenters on this blog.)
Effort to repeal death penalty in New Hampshire falls one vote short
As reported in this New York Times piece, headlined "Measure to Repeal Death Penalty Fails by a Single Vote in New Hampshire Senate," a tie vote yesterday in the Granite State will keep the death penalty alive there for now. Here are the details:
In a tie vote, the New Hampshire Senate deadlocked Thursday on whether to repeal the death penalty, leaving the current law intact and New Hampshire as the lone state in New England that allows the execution of anyone convicted of a capital crime.
Only one person here is on death row, but his fate had as much to do with the vote as anything else. That inmate, Michael Addison, was convicted in 2008 in the shooting death of a Manchester police officer in 2006.
Proponents of the death penalty want him executed, but his case has been tied up in legal appeals. State senators opposed to the death penalty said that they understood the visceral feelings against Mr. Addison and that their measure would still allow his execution even as it abolished the law authorizing it. Death penalty supporters said that the bill posed constitutional problems and that Mr. Addison’s life could end up being spared.
“Trying to have it both ways was problematic for proponents of the bill — execute one person but repeal it prospectively,” Senator Jeb Bradley, a Republican and the majority leader, said in an interview after the vote. “That was a bridge too far for a lot of people,” said Mr. Bradley, who opposed repeal....
New Hampshire’s action on Thursday stalled for now what had appeared to be momentum toward the abolition of the death penalty. The State House of Representatives approved the repeal 225 to 104 last month, and Gov. Maggie Hassan, a Democrat, had been prepared to sign it. Repeal would have made New Hampshire the 19th state to abolish the death penalty and the last in New England. And it would have been the seventh state in seven years to do so. New Hampshire’s last execution was in 1939.
But the State Senate, where Republicans outnumber Democrats 13 to 11, split 12-to-12 on Thursday, and tie votes are considered defeats. Party leaders had freed their members for what they said would be a vote of conscience. Two Republicans broke with their party and voted for the repeal, and one Democrat voted against it....
Death penalty opponents were disappointed and said they would continue to lobby senators in hopes of bringing up the bill again before the legislative session ends June 30. Arnie Alpert, spokesman for the New Hampshire Coalition to Abolish the Death Penalty, said that many people “evolve” on the issue over the years and that there was still hope of changing minds.
Senator Bette Lasky, a Democrat and the chief sponsor of the bill, said she regretted that she did not have a chance to talk to all of her colleagues. “Many senators were so inundated, even when it came to colleagues talking to them, that they shut down,” she said.
Ms. Lasky said she would bring the bill up again if she knew she had the votes to pass it. Mr. Bradley, the majority leader, said it was hard to say whether supporters of the repeal could get enough votes to bring the measure back. “At 12-12, it could come off the table, but I suspect it won’t,” he said.
Thursday, April 17, 2014
Big new empirical analysis of federal prosecutorial charging practices
I just learned about an important NIJ-funded project and report through the National Criminal Justice Reference Service which examines in depth federal prosecutorial charging decisions across US District Courts. The research was complete by Brian Johnson of the University of Maryland, and the 150+ page report, available at this link, is titled "Missing Link: Examining Prosecutorial Decision-Making Across Federal District Courts." Helpfully, the report starts with this informative and insightful abstract:
U.S. Attorneys are arguably the most powerful and least studied actor in the federal criminal court workgroup. They have immense discretion to decide which cases to prosecute and what charging concession to offer in the course of plea bargaining, yet a paucity of empirical research exists on these consequential decisions. Recent scholarship on criminal sentencing suggests sentencing decisions vary significantly across court contexts, but virtually no prior work investigates jurisdictional variations in prosecutorial decision-making outcomes.
The current study uses unique data from the Bureau of Justice Statistics on federal criminal case processing to study these issues. It links information across multiple federal agencies in order to track individual offenders across the various stages of the federal justice system. Specifically, it combines arrest information from the U.S. Marshall’s Service with charging information from the Executive and Administrative Offices of the U.S. Attorney and with sentencing information from the U.S. Sentencing Commission. Linking data from these multiple sources provides a unique opportunity to study elusive prosecutorial decision-making outcomes in the federal justice system. These individual data, then, are subsequently augmented with additional information on federal courts to examine contextual variations in charging decisions across federal jurisdictions.
Findings from this research suggest several important conclusions. First, there is little systematic evidence of age, race and gender disparities in U.S. Attorney decisions regarding which cases are accepted and which are declined for prosecution. The most common reason for case declinations reported by U.S. Attorneys was weak or insufficient evidence. Second, there is some evidence of disparities in charge reductions, but they operate in opposite directions for gender and race. Male defendants were less likely than female defendants to receive charge reductions but black and Hispanic defendants were slightly more likely than white defendants to receive them. Young, male, minority defendants, however, were both less likely to have their cases declined and less likely to receive charge reductions. Fourth, both case declinations and charging reductions demonstrate significant variation across federal district court environments. Larger districts were slightly more likely to decline prosecutions and reduce charges, but overall, few of the district-level characteristics that were examined proved to be strongly related to jurisdictional variations in prosecutorial decision-making outcomes.
In terms of policy recommendations, this research suggests that there is a strong need for improved data collection efforts on federal prosecution. The dearth of research on prosecutors reflects a lack of quality data on their decisions-making processes and outcomes and on the social contexts in which these decisions are made. Increased transparency, accountability, fairness and equality in federal punishment will ultimately require improved information on the essential role played by U.S. Attorneys in the multiple decision-making points that comprise criminal case processing in the federal criminal justice system.
I will need lots of time and lots of help digging into the data in the report before I can reach any truly informed conclusions about what this research most forcefully documents. But a review of just this abstract confirms my belief and concern that fully understanding the impact and import of prosecutorial discretion is a huge puzzle and challenge in the federal sentencing system.
Wednesday, April 16, 2014
Critical reflections on the Cantu commutation ... aka why some federal prosecutors perhaps deserve to be demonized
The more I reflect on the typo-correction sentence commutation of federal prisoner Cesar Huerta Cantu (basics here), and especially after re-reading this 2255 dismissal order that followed Cantu's own effort to have a court fix its own significant sentencing error, the more disgusted I feel about the modern federal sentencing system and especially about the U.S. Department of Justice and those federal prosecutors most responsible for Cesar Cantu's treatment by our Kafkaesque system. In an effort to achieve some catharsis, let me try to briefly explain my feelings in three basic points:
1. Cantu's original federal sentencing as guidelines numerology: My disgust begins as I think about the basic reality that our federal sentencing system enables a small numerical typo — what should have been a 34 was a 36 in the presentence report guideline calculations — to result in 38-year-old defendant with no criminal history (who pleaded guilty and had considerable family support) to get sentenced to an extra 3.5 years in prison. I continue to struggle to find much sense of justice or wisdom in a federal sentencing system in which quantitative numbers invented by a government agency, rather than qualitative factors and reasoned judgment, often still conclusively determine how many years or decades defendants are ordered to spend locked in a cage.
2. Cantu's original federal sentencing as federal actors gone numb: Arguably more depressing than a federal sentencing system in which numbers invented by a government agency determine how long a defendant gets locked up are sentencing actors whose concern for the human realities of incarceration have been numbed by all the numbers. One would hope that, as part of a system in which years of human experience for federal defendants (and those who care about them) get determined by basic math, everyone involved would make extra sure the math is always done right. But, numbed by so many humans being imprisoned for so many years based on so many numbers, the author of the PSR did not notice a typo that inflated Cantu's guideline-recommend prison sentence by many years, and neither did the defense attorney representing Cantu, and neither did the US Attorneys prosecuting Cantu, and neither did the federal judge sentencing Cantu.
3. Cantu's dismissed 2255 motion as federal prosecutors possessed: Bill Otis and others sometimes complain that I seem at times to suggest federal prosecutors are evil or satanic. In fact, I have great respect for the hard work of federal prosecutors, and I am sure I would much rather have my daughters date 99% of federal prosecutors than 99% of federal defendants. But I must wonder about what kind of evil or satanic forces may have possessed the federal prosecutors who responded to Cantu's pro se 2255 motion to correct his sentence with a motion to dismiss this matter as time-barred.
Based on my reading of this 2255 dismissal order that followed Cantu's motion, federal prosecutors have never disputed that a typo resulted in Cantu receiving a sentence 3.5 years longer than he should have, nor have they disputed that federal government officials are wholly responsible for this consequential error. Still, the federal prosecutors who contributed to a mistake costing Cantu 3.5 years of his freedom responded to his 2255 motion by urging the sentencing judge also responsible for this mistake to refuse to correct Cantu's sentence because Cantu discovered their mistakes too late. I am hard-pressed to come up with adjectives to describe this federal prosecutorial decision to seek dismissal of Cantu's 2255 motion other than inhumane.
I want to be able to imagine a positive motivation for why federal prosecutors sought a procedural dismissal of Cantu's motion to correct his indisputably erroneous sentence: perhaps, I was thinking, six years after prosecutors helped get an erroneously long sentence imposed on Cantu, these prosecutors came to believe Cantu was a criminal mastermind still involved in serious criminal wrongdoing from prison. But, as this New York Times article reports, years after his initial erroneous sentencing, Cantu provided "law enforcement authorities with substantial assistance on an unrelated criminal matter" and "he has been a model prisoner, taking vocational and life skills courses and expressing remorse." In addition, according to the Times reporting, Cantu is married and has 8-year old daughter. Even if prosecutors were, for whatever reasons, disinclined to help Cantu get his erroneous sentence fixed after Cantu himself had helped the prosecutors, wouldn't they lose a little sleep over the notion that a typo could end up costing Cantu's wife the chance to have her husband's help to raise their daughter during her coming adolescence?
I am hoping Bill Otis or other current or former federal prosecutors will help me feel better about the work of our federal sentencing system and the Department of Justice in the wake of the Cantu commutation. Especially because Prez Obama has been so stingy with his clemency power, I want this latest commutation to be a reason to celebrate rather than curse our justice system. But unless and until someone can metamorphasize my understanding of the work of federal prosecutors in this case, I have a hard time not thinking that Josef K. and Cantu have far too much in common.
April 16, 2014 in Clemency and Pardons, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (24) | TrackBack
Another sign of the modern sentencing times: notable sponsor for "How the Criminal Justice System Impacts Well-Being"
I am pleased to note a notable event taking place in Texas this evening under the banner "Rule of Law: How the Criminal Justice System Impacts Well-Being." Here is a description of the event, with its notable chief sponsor (and a link) to be found after the jump:
This Rule of Law event is presented by the Charles Koch Institute.
Can criminal justice system reform improve overall well-being for individuals, families, and communities?
The United States has only 5 percent of the world’s population but about 25 percent of its known prison population. In fact, the country's prison population has increased by 790 percent since 1980, exceeding 2 million people in 2002.
We hope you’ll join us for a discussion on how the sharp rise in the number of people behind bars has had a significant impact on well-being. A criminal conviction, even for a minor offense, hinders opportunity and advancement, can contribute to a breakdown in family structure, and can put a strain on community resources. All too often, the effects of incarceration propel former prisoners to commit another crime, creating a vicious cycle of recidivism.
Thoughtful dialogue on this issue can lead to solutions to the challenges facing the criminal justice system and those affected by it, especially the least fortunate. That’s why we’re bringing together leading figures in the criminal justice arena for a conversation on the use of criminal versus civil law; federal and state reforms; mandatory minimum sentences; and other topics.
I know, as reported here by the founder of FAMM Julie Stewart, that "David Koch has donated generously and without fanfare to Families Against Mandatory Minimums for many years. And the broader libertarian commitments of the Koch brothers should make them fans of a variety of sentencing and drug war reforms, especially at the federal level.
If (when?) the Koch Brothers together start aggressively and visibly putting lots of their political might and their billions behind sentencing reform efforts, I will start to believe seriously that significant reform is on the horizon. Indeed, it would be especially significant (and surely a huge boast to the presidential prospects of Senator Rand Paul) if the Koch brothers were to make clear to all members of the GOP that they will only support those candidates who are vocal and active suporters of significant federal sentencing reform.
Tuesday, April 15, 2014
Prez Obama commutes 15-year sentence for marijuana offender down to 11.5 years
With apologies for the bad "Field of Dreams" reference, I am not sure how else to react to the news I have got via this press release while I am sitting in the audience excited to be at this amazing on-going NYU conference on "Mercy in the Criminal Justice System: Clemency and Post-Conviction Strategies" with the keynote speaker White House Counsel Kathryn Ruemmler. I was hoping and expecting the White House Counsel Kathryn Ruemmler would be making news via her afternoon keynote, but her boss beat her to the punch as the full text of the press release reveals:
Today, President Barack Obama granted clemency to the following individual:
• Ceasar Huerta Cantu, also known as Cesar Huerta Cantu – Katy, Texas
Offenses: Conspiracy to possess with intent to distribute marijuana; money laundering (Western District of Virginia)
Sentence: 180 months’ imprisonment (as amended), five years’ supervised release (May 11, 2006)
Commutation Grant: Prison sentence commuted to 138 months’ imprisonment
Thanks to the wonderful internet, I found this 2255 dismissal order concerning the Cantu case which suggests that Cantu received an erroneous initial sentence that he was unable to get changed via traditional legal means. But it is unclear from this order alone whether this sentence calculation error provides the basis and reason for this notable commutation. A quick read of the order does suggest that the reduction from 180 to 138 appears to reflect precisely the sentence Cesar Huerta Cantu would have and should have gotten (after getting substantial assistane credit) had his initial sentence been calculated properly.
Live-blogging UPDATE: In her keynote speech at this NYU conference, White House Counsel Kathryn Ruemmler is talking up this grant and says that it shows that clemency can serve as a "fail-safe" for correcting errors that cannot be corrected by other means.
WH Counsel Ruemmler has announced that DOJ via BOP is going to alert federal prisonsers about the on-going clemency initiative previously announced by Deputy AG Cole.
MSM UPDATE: Lots of press reports are now providing context for this grant such as this AP article headlined "Obama commutes sentence made longer by typo."
Notable comments by AG Holder about marijuana legalization in the states
This notable new Huffington Post article, headlined "Eric Holder 'Cautiously Optimistic' About Marijuana Legalization," reports on notable new interview with the AG discussing his latest view onf marijuana reform. Here are excertps:
Attorney General Eric Holder is "cautiously optimistic" about how things are going in Washington state and Colorado following the legalization and state regulation of marijuana. But the nation's top law enforcement official, who spoke to The Huffington Post in an interview on Friday, also said it was tough to predict where marijuana legalization will be in 10 years.
"I'm not just saying that, I think it's hard to tell," Holder said in a jury room at the federal courthouse in Charleston, which he visited as part of the Justice Department's Smart on Crime initiative. "I think there might have been a burst of feeling that what happened in Washington and Colorado was going to be soon replicated across the country. I'm not sure that is necessarily the case. I think a lot of states are going to be looking to see what happens in Washington, what happens in Colorado before those decisions are made in substantial parts of the country."
Under Holder, the Justice Department has allowed marijuana legalization to move forward in Washington and Colorado and has issued guidance to federal prosecutors that is intended to open up banking access for pot shops that are legal on the state level.
Based on the reports he has received out of Washington and Colorado, Holder also said he thinks things are going about how he'd expected them to go. "I think what people have to understand is that when we have those eight priorities that we have set out, it essentially means that the federal government is not going to be involved in the prosecution of small-time, possessory drug cases, but we never were," Holder said. "So I'm not sure that I see a huge change yet, we've tried to adapt to the situation in Colorado with regard to how money is kept and transacted and all that stuff, and try to open up the banking system."
"But I think, so far, I'm cautiously optimistic," Holder continued. "But as I indicated to both governors, we will be monitoring the progress of those efforts and if we conclude that they are not being done in an appropriate way, we reserve our rights to file lawsuits."
Holder's positive outlook on how legalization is going in Washington and Colorado stands in contrast to the views expressed by Drug Enforcement Administration head Michele Leonhart, who reportedly criticized President Barack Obama for comparing marijuana to alcohol. Leonhart claimed earlier this month that voters were mislead when they voted to legalize and regulate marijuana on the state level, that Mexican drug cartels are "setting up shop" in Washington and Colorado and that this country should have "never gone forward" with legalization. Another DEA official recently claimed that "every single parent out there" opposed marijuana legalization.
Washington and Colorado, of course, aren't the only places in the U.S. reforming their approach to marijuana. In March, Washington, D.C., decriminalized the possession of small amounts of marijuana. Asked about D.C.'s move, Holder said it didn't make sense to send people to jail on possession charges. "Well, I'll tell you, as a former judge, I had to put in jail substantial numbers of young people for possessory drug offenses, and it was not from the perspective I had as a judge necessarily a good use of law enforcement resources," Holder said. "When I became U.S. attorney we put in place certain guidelines so that people would not end up, especially young people, with criminal records and all that then implies for them."...
Holder also acknowledged the Obama administration has made the political decision not to unilaterally "reschedule" marijuana by taking it off the list of what the federal government considers the most dangerous drugs, though that is something the attorney general has the authority to do. Instead, Holder has said DOJ would be willing to work with Congress if they want to reschedule marijuana, which doesn't seem likely to happen in the near future.
"I think that given what we have done in dealing with the whole Smart on Crime initiative and the executive actions that we have taken, that when it comes to rescheduling, I think this is something that should come from Congress," Holder said. "We'd be willing to work with Congress if there is a desire on the part of Congress to think about rescheduling. But I think I'd want to hear, get a sense from them about where they'd like to be."
"Secret Drugs, Agonizing Deaths"
The title of this post is the headline of this New York Times op-ed published yesterday. Authored by Megan McCracken and Jennifer Moreno, here is how it starts:
Facing a critical shortage of lethal injection drugs, prison officials in a number of states have recently engaged in an unseemly scramble to obtain new execution drugs, often from unreliable and even illegal sources. Not only does this trend raise serious questions about the constitutionality of executions, it also undermines the foundations of our democratic process. In the name of security, states are now withholding vital information about their death penalty procedures — from death row prisoners’ lawyers and from judges, whose stamp of approval they need to impose the ultimate sanction, as well as from the public, in whose name the sentence is carried out.
States have long shielded the identities of executioners, a reasonable policy that should not interfere with judicial review of execution procedures. But in the past year, Georgia, Missouri, Tennessee and other states have expanded the reach of their secrecy laws to include not just the execution drugs used, but even the pharmacies that supply them.
These laws hide the information necessary to determine if the drugs will work as intended and cause death in a humane manner. For states to conceal how they obtain the execution drugs, whether those purchases comply with the law and whether the drugs themselves are legitimate prevents courts from analyzing the legality and constitutionality of death penalty procedures. And that deprives the public of informed debate.
Monday, April 14, 2014
House Judiciary Chair suggests Smarter Sentencing Act still facing uphill battle on the Hill
CQ News has this important new article on federal sentencing reform developments in Congress under the headline "Goodlatte: Don't 'Jump to Conclusions' on Mandatory Minimums." Here are excerpts:
House Judiciary Chairman Robert W. Goodlatte, R-Va., is not convinced that Congress should scale back mandatory minimum drug sentences, even as the Obama administration and a bipartisan coalition in the Senate step up their efforts to do so. Goodlatte, speaking to reporters from CQ Roll Call and Politico during a pre-taped interview that aired Sunday on C-SPAN’s “Newsmakers” program, said the severity of drug sentences “is a legitimate issue for us to be examining.”
He noted that his committee has set up a task force to review mandatory minimum sentences and many other aspects of the federal criminal code, and he did not rule out taking up a bipartisan, administration-backed Senate proposal (S 1410) that would reduce some minimum drug penalties by as much as 60 percent. The Senate could take up the proposal in the coming weeks after the Judiciary Committee approved it 13-5 in March.
Despite signaling his willingness to consider sentencing changes, Goodlatte said, “I want to caution that we shouldn’t jump to conclusions about what is right and what is wrong with the law yet.” Asked whether he believes that some federal prisoners are facing dramatically long sentences for relatively minor drug crimes — a claim frequently made by supporters of an overhaul — Goodlatte expressed skepticism.
“If you’re talking about 25- or 30-year sentences, you’re talking about something that the judge and the jury found appropriate to do above mandatory minimum sentences, because those are five-year and 10-year sentences,” he said. Regarding the mandatory minimum sentences themselves, he said, “you’ll find that the quantities of drugs that have to be involved are very, very large.”
In the case of marijuana possession, for example, it takes “hundreds” of pounds of the drug to trigger a five-year mandatory minimum penalty and “thousands” of pounds to trigger a 10-year mandatory minimum penalty, Goodlatte said. “With other drugs that are very potent in much, much smaller doses, those quantities are much, much lower,” he said. “But if you look at it from the standpoint of what someone has to be engaged in dealing, you’re talking about large quantities before you get those minimums.”
The Senate bill, which is supported by conservatives including Ted Cruz, R-Texas, Mike Lee, R-Utah, and Rand Paul, R-Ky., would reduce 10-year minimum sentences for certain drug crimes to five years, while reducing five-year minimum sentences for other drug crimes to two years. If those drug crimes result in “death or serious bodily injury,” mandatory minimum penalties would be slashed from their current 20 years to 10 years. In all of the penalties being reconsidered, mandatory sentences are triggered based on the quantity of drugs involved in a particular crime....
Molly Gill, government affairs counsel for the advocacy group Families Against Mandatory Minimums, said in an e-mail that the quantity of drugs involved in a crime is “bad proxy for culpability” and suggested that it should not be used as the basis to defeat proposed changes to fixed drug sentences....
She noted that the independent U.S. Sentencing Commission, which sets advisory sentencing guidelines for the federal judiciary, found in a 2011 study that “the quantity of drugs involved in an offense is not closely related to the offender’s function in the offense.” So-called “drug mules,” for example, physically transport large quantities of narcotics for others but are not themselves major traffickers or kingpins, Gill said.
Even as Goodlatte showed skepticism about lowering mandatory drug sentences, Attorney General Eric H. Holder Jr. kept up his call for Congress to take action on the Senate proposal, known as the Smarter Sentencing Act.
After the Sentencing Commission approved its own changes in drug sentencing guidelines last week — a move that is expected to reduce some drug offenders’ penalties by an estimated 11 months — Holder urged Congress to follow up with more sweeping, statutory changes. “It is now time for Congress to pick up the baton and advance legislation that would take further steps to reduce our overburdened prison system,” he said in a statement. “Proposals like the bipartisan Smarter Sentencing Act would enhance the fairness of our criminal justice system while empowering law enforcement to focus limited resources on the most serious threats to public safety.”
The full video of the interview with Rep. Goodlatte is available at this C-Span archive, and sentencing fans will want to cue the video up to a little after the 10 minute mark. Not long after that point, there is a discussion of federal marijuana policies and then the interview turn to drug sentencing generally. A review of the whole segment makes me a bit less pessimistic about the possibilities of federal sentencing reform making it through the House of Representatives. But being a bit less pessimistic is hardly being optimistic.
Some prior posts about federal prosecutorial perspectives on sentencing reform:
- Forecasting the uncertain present and future of federal legislative sentencing reform
- "Some prosecutors fighting effort to eliminate mandatory minimum prison sentences"
- "Law Enforcement Lobby Quietly Tries To Kill Sentencing Reform"
- Effective Heritage analysis of federal MMs and statutory reform proposals
- Are we "headed for a crime-riddled future" without mandatory minimums?
- "Prosecutors Wrong to Oppose Sentencing Reform"
- "With Holder In The Lead, Sentencing Reform Gains Momentum"
- "Holder and Republicans Unite to Soften Sentencing Laws"
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
- Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?
- Very eager to provide very thorough and fair coverage of prosecutors' views on Smarter Sentencing Act
Sunday, April 13, 2014
"Vacancy in Justice: Analyzing the Impact of Overburdened Judges on Sentencing Decisions"
The title of this post is the title of this intriguing empirical paper I just noticed on SSRN. Authored by Jason Best and Lydia Brashear Tiede, here is the abstract:
Vacancies are one of the greatest challenges facing the federal judiciary and they persist due to the politics of the confirmation process. Despite concerns as to the adverse consequences of judicial vacancies, research about their effects has remained elusive due to the difficulties of specifying the causal mechanism between vacancies and judicial decision-making.
Using an innovative instrumental variables approach to analyze the effect of vacancies on federal district court judges’ criminal sentencing decisions, we show that judges who are overburdened due to vacancies use shortcuts which affect the severity of punishment. Further, how the vacancy was created has differential effects on case outcomes. Vacancies created by district judges’ assumption of senior status have minimal effects on punishment, while vacancies created by all other methods result in harsher penalties. The results suggest that policymakers should prioritize filling vacancies based on the manner in which they are created.