Sunday, March 26, 2017
"Recognizing Redemption: Old Criminal Records and Employment Outcomes"
The title of this post is the title of this new essay authored by Peter Leasure and Tia Stevens Andersen available via SSRN. Here is the abstract:
Upon completion of their sentences and when attempting to ‘reenter’ society, offenders face large barriers, often referred to as the ‘collateral consequences’ of conviction. One of the largest barriers, given the stigma of a criminal record, is finding employment. The problem primarily arises because of increases in the use of background checks by employers and the use of a criminal record to eliminate candidates. Such a practice is partly understandable for employers, as a recent conviction is one of the best predictors of future criminal activity.
However, recent evidence suggests that an offender’s risk of reoffending decreases over time and can eventually come “close enough” to that of one who has never offended, even becoming lower than that risk for a random person within the general population. However, no study has examined whether such knowledge has reached potential employers. Our study sought to determine whether knowledge such as this has reached potential employers and asked whether there are employment outcome differences for hypothetical applicants with older criminal records. Results indicate that those possessing older criminal records still face barriers when seeking employment. Based on these findings, we present policy considerations.
Notable perspectives on state and direction of modern criminal justice reform efforts
James Forman has this lengthy new commentary in the New York Times under the headlined "Justice Springs Eternal." I recommend the full piece to anyone and everyone seeking to take stock and reflect upon the current moment in the modern criminal justice reform movement. Here are some extended excerpts:
After almost 50 years of relentless prison-building in the United States, of aggressive policing and a war on drugs that goes after our most vulnerable citizens, the movement for a more merciful criminal justice system had begun to seem, if not unstoppable, at least plenty powerful.
In 2015, the number of American prisoners declined more than 2 percent, the largest decrease since 1978. By 2014, the incarceration rate for black men, while still stratospheric, had declined 23 percent from its peak in 2001. Even growing numbers of Republicans were acknowledging the moral and fiscal imperative of shrinking the prison state.
And then came President Trump, who caricatures black neighborhoods as killing fields in desperate need of more stop-and-frisk policing, and Attorney General Jeff Sessions, who shrugs off evidence of systemic police abuses in cities like Chicago and Ferguson, Mo., and says that marijuana is “only slightly less awful” than heroin. (In fact, nearly 13,000 Americans died from heroin overdoses in 2015, while zero died from marijuana overdoses.)
Such dangerous, ill-informed pronouncements naturally induce weariness and dread. Yet despite this bleak news from Washington, the movement to reduce the prison population and make our criminal justice system more humane is not in retreat. In fact, it is stronger than ever....
The most unexpected victories came in local races for prosecutor. For decades, district attorney candidates competed to prove they were tougher on crime than their opponents. That makes what happened last November so extraordinary: Prosecutors around the country campaigned on promises to charge fewer juveniles as adults, stop prosecuting low-level marijuana possession and seek the death penalty less often. And they did so in places with well-deserved reputations for rough justice, including Chicago, Houston and Tampa, Fla....
These state and local election results get less attention than Mr. Trump and Mr. Sessions, but they may have a bigger impact on incarceration rates. While mass incarceration is a national crisis, it was built locally. Ninety percent of American prisoners are in state, county and local jails, and around 85 percent of law enforcement officers are state and local, not federal.
Of course, the federal government exerts influence on law enforcement at all levels, both through rhetoric (the tone set in Washington filters down) and funding (Congress can encourage states to build more prisons by offering to foot part of the bill). But most crime policy is set by state and local officials: police officers, pretrial services officers, local prosecutors, defense lawyers, juries (in the rare cases that don’t end in a plea agreement), judges, state legislatures, corrections departments and state parole boards. During the tough-on-crime era that began in the 1970s, each of those entities became more punitive, and the cumulative impact of their policies and actions caused the number of people in prison or under criminal justice supervision to skyrocket.
Now, the reverse could also prove to be true. If multiple individuals across multiple systems were to become less punitive, the prison population would fall. This is why each state and local electoral victory — even those that don’t make news — is so significant. Mass incarceration will have to be dismantled the same way it was constructed: piecemeal, incrementally and, above all, locally.
The question is, what can be done to sustain such progress — especially at a time when crime is rising in some cities and the “law-and-order” mantra pioneered by Barry Goldwater and Richard Nixon in the 1960s has regained currency at the federal level? The answer lies with a new breed of activism that has emerged in response to mass incarceration. Reform groups and nonprofits are tackling issues and adopting strategies that an earlier generation of reformers did not....
[N]o aspect of our criminal justice system is as overworked and underfunded as public defender services. Of the more than $200 billion that states and local governments spend on criminal justice each year, less than 2 percent goes to public defense. Yet improving indigent defense gets scant attention in the conversation about how to fix our criminal justice system.
President Barack Obama “wrote a 55-page article about criminal justice reform and didn’t mention public defenders,” said Jonathan Rapping, the founder of Gideon’s Promise, an Atlanta-based group that is building a movement of public defenders to drive justice reform. “Eighty percent of the people charged with crimes in this country can’t afford a defense attorney,” Mr. Rapping added. “That means that 80 percent of the people in court depend on their public defender to be their voice, to tell their stories and to assert their humanity in a system that routinely denies it. Until we invest in public defenders, our system cannot and will not change.”
But what about the prosecutors whom public defenders and their clients face in court? This question points to one more critical item on the criminal justice reform agenda. We must continue to recruit progressive prosecutors to run in local elections, support those who do, and hold them accountable if they win. And let me go one step further: Law students and midcareer lawyers committed to criminal justice reform should consider signing up as assistant district attorneys in offices run by the new crop of progressive prosecutors.
This last suggestion, I confess, doesn’t come naturally to me. I’ve taught law school for almost 15 years, and during that time I’ve repeatedly counseled progressive students against working as prosecutors. I had lots of reasons, but the main one was straightforward: You might go in as a reformer, but the office will change you, not the other way around.
I still believe this is true for most prosecutors’ offices. But the recent election of prosecutors who criticize racial disparities and challenge wrongful convictions has caused me to change my mind. Prosecutors committed to reform need talented staff members who share that commitment, and our best legal talent should flock to their offices.
Mr. Sessions and Mr. Trump have the largest microphones and will get the most attention. But their agenda faces a rising countermovement across the country. If we stay local and continue to learn from past defeats and recent victories, the movement for a fairer criminal justice system can outlast them and prevail.
Friday, March 24, 2017
Thanks to voter approval of Prop 57, "California prisons to free 9,500 inmates in 4 years" based on new early-release credit rules
The middle title of this post quotes the title of this new AP article and provides a bit of context. For more explanation, here is more from the AP article:
Corrections officials adopted new criminal sentencing rules on Friday that aim to trim California’s prison population by 9,500 inmates after four years.
They include steps like reducing inmates’ sentences up to six months for earning a college degree and by up to a month each year for participating in self-help programs such as alcohol and substance abuse support groups and counseling, anger management, life skills, victim awareness, restorative justice, and parenting classes. Virtually any inmate except those on death row or those serving life-without-parole sentences is eligible to earn the credits and lower the sentence.
It’s the latest step in a years-long drive to dramatically lower the state’s prison population in response to federal court orders stemming from lawsuits by prison advocates and pressure to turn away from mass incarceration.
The changes follow voters’ approval of Proposition 57 in November. The initiative lets certain felons seek parole more quickly and gave corrections officials broad discretion to grant early release credits. “I think that it’s a monumental change for the organization and I think across the state, across the nation, I don’t think that anybody has altered how they are incarcerating offenders as much as what Prop 57 does,” Corrections Secretary Scott Kernan told The Associated Press. The goal, he said, is to encourage inmates to start “doing something with their incarceration and not just sitting on their bunks.”
The changes in parole eligibility will take effect April 12 if they win initial approval from state regulators, with final approval by October after a public comment period. The earlier release credits and earlier parole consideration will be phased in starting May 1 while the public review is underway.
Police and particularly prosecutors fought the ballot initiative, arguing that it will release dangerous offenders sometimes years earlier than called for in their sentences. It also will put convicts more quickly into county probation systems that already are stretched. Kernan said he took some of their objections into account, for instance by barring sex offenders and third-strike career criminals from seeking earlier parole.
The changes are projected to eventually lower California’s prison population by about 7 percent and keep the state below the federal court-ordered population of about 116,000 inmates in the 34 adult prisons. The changes also will let the state phase out a long-running program that currently keeps nearly 4,300 inmates in private prisons in other states.
[T]he bulk of the reductions would come from steps like doubling the credits inmates receive for completing education and training programs, to a maximum of three months in any 12-month period, and expanding them to include violent offenders. Inmates would also start getting expanded credits for not violating prison rules starting May 1. That would typically reduce a violent offender’s sentence by 19 days each year, Kernan said, calling the reduction “relatively modest.”
Former Penn State Prez convicted of single misdemeanor court of child endangerment for role in Sandusky sex offense scandal
As reported in this local article, "Graham B. Spanier, the former Pennsylvania State University president once considered one of the nation’s most prominent college leaders, was convicted Friday of endangering children by failing to act on signs that Jerry Sandusky was a serial sex predator." Here is more (with key sentencing factors highlighted):
After nearly 12 hours of deliberation, the jury of seven women and five men found Spanier guilty of a single misdemeanor count of endangerment. He was acquitted of a second endangerment count, as well as a felony count of conspiracy.
Still, the guilty verdict was a stunning blow to Spanier, 68, who had long proclaimed his innocence, and to his supporters, who had fiercely defended him and accused prosecutors of overreaching and unfairly staining the university. Many, including his wife, Sandra, a Penn State English professor, were in the Dauphin County Courtroom to hear the verdict. Spanier didn't appear to react when the verdict was read in a hushed courtroom.
Prosecutors said he agreed in 2001 with two Penn State administrators at the time, Athletic Director Tim Curley and Vice President Gary Schultz, not to report assistant coach Mike McQueary's claim that Sandusky was caught after hours with a young boy in a campus locker-room shower.
Pennsylvania Attorney General Josh Shapiro, who this year took over the office that spent had nearly a decade investigating and prosecuting the Sandusky case, said the verdict showed no one is above the law. "There are zero excuses when it comes to failing to report the abuse of children to authorities," he said.
Spanier's lawyer, Sam Silver, said they were heartened by the jury's acquittal on two counts and would appeal the guilty verdict on the third. That count had originally been a felony count, but jurors downgraded it to a misdemeanor.
Emails show that the three men knew Sandusky, a longtime assistant to head football coach Joe Paterno, had been investigated by university police after a similar claim in 1998. They first decided to report the 2001 incident to child-welfare authorites, but then changed that plan. Instead, they agreed to talk to Sandusky, bar him from bringing boys on campus, and share the report with the president of Second Mile, the charity Sandusky started for vulnerable children.
Sandusky sexually assaulted at least four more children after the 2001 incident, including another boy in a campus shower the next year, jurors were told. That victim was among the witnesses who testified this week. Both Schultz and Curley pleaded guilty and testified for the prosecution, although a deputy attorney general told jurors in her closing argument that they were not the government's star witnesses.
Spanier opted not to testify. His lawyers argued that the prosecution didn't present any evidence that Spanier knew Sandusky was a child sex abuser or that he knowingly conspired to cover up a crime. Spanier, who rose to national prominence as Penn State's leader for 16 years, has maintained that he acted appropriately in 2001 based on the information he had at the time. He contends he was told by his lieutenants that Sandusky's behavior with the boy in the shower amounted to "horseplay."
Followers of federal sentencing know that a jury's acquittal on some but not all counts may sometimes not be a huge sentencing benefit to defendants given that sentencing guideline recommendations can be based on acquitted and uncharged conduct established by merely a preponderance of the evidence. But the impact of the split verdict in this high-profile state case is seemingly quite significant because the defendant is now only facing sentencing on a single misdemeanor count (which I presume means he could not get more than a year in jail).
I find it quite interesting (and somewhat curious) that a jury apparently has authority under Pennsylvania law to take a count that "had originally been a felony count" and decide it should be "downgraded to a misdemeanor." This strikes me as fundamentally a sentencing decision being made by a jury, and as an interesting way for the jury in this particular case to send a (mixed) message about the defendant and his criminal activity.
Thursday, March 23, 2017
Those who can't federally prosecute anymore (thanks to Prez Trump), teach...
Especially because I come from a family of teachers, I have always found bemusing the old idiom "Those Who Can’t Do, Teach." In this context, my latest bemusement (and the title of this post) is prompted by this new New Jersey Law Journal article headlined "Prosecutors Find Refuge in Law School Posts." Here is how the article starts:
What’s a federal prosecutor forced to resign by a new president to do? Rub elbows with the next generation of lawyers, apparently.
Three of the 46 recently ousted U.S. attorneys have in the past week unveiled plans to join law schools, eschewing — for now — the more well-traveled and lucrative path into Big Law. A fourth U.S. attorney jumped over to the legal academy after resigning several months before President Donald Trump took office.
It’s not unheard of for former U.S. attorneys to find refuge on law campuses, though the concentration of such announcements over the past week is unusual and due to the simultaneous housecleaning of all holdover prosecutors appointed by former President Barack Obama. Joining a law school can offer former prosecutors a way station as they mull their future endeavors, be it running for public office or diving into private practice. Or the academy can be their desired destination—several former federal prosecutors have gone on to serve as law deans or faculty fixtures.
“I think there will be more,” said David Hickton, the former U.S. Attorney for the Western District of Pennsylvania who resigned in November and two months later accepted a position at the University of Pittsburgh School of Law. “There are two reasons for that: First, I think these things catch a little bit like a fever, and now that three of us have done it, others will look at it more closely than they would have before. Secondly, the private practice of law is in a reshuffling and rebalancing. There seems to be an oversupply of lawyers.”
The University of Michigan Law School kicked off the mini-trend on March 14 with an announcement that Barbara McQuade, who spent seven years as the U.S. Attorney for the Eastern District of Michigan, is joining the faculty in May to teach national security, criminal law, and criminal procedure.
Two days later, Seton Hall University School of Law announced that former U.S. Attorney for the District of New Jersey Paul Fishman will be a visiting fellow at the school. Then on Tuesday, New York University School of Law announced that Preet Bharara, former U.S. Attorney for the Southern District of New York and perhaps the most high-profile of the fired prosecutors, would join the school as a scholar in residence on April 1.
Notable discussion of federal criminal justice issues at new Take Care blog
A new legal blog with a number of notable contributors, Take Care, has recently been created seeking to provide "insightful, accessible, and timely legal analysis of the Trump Administration." The blog has topical pages on Criminal Justice and Marijuana Legalization among many others, and here are a few recent posts from those pages readers might find of interest:
"Why Jeff Sessions’s Reversal on Private Prisons Is Dangerous" by Chiraag Bains
"Reliance Defenses in the Trump Era and Beyond" by Zachary Price
"Trump’s Approach to Crime & Punishment" by Chiraag Bains
Wednesday, March 22, 2017
Department of Justice to host National Summit on Crime Reduction and Public Safety at the end of June
Acting Assistant Attorney General Alan Hanson gave this speech today at the Byrne Criminal Justice Innovation Program Symposium. The entire speech makes for an interesting and encouraging read, and here are a few passages that really caught my eye (including the reference to the coming National Summit mentioned in the post title):
As with any new Administration, I know there are lots of questions about priorities. The President just released his budget last week, and you can see that the White House is clearly focused on reducing crime in America’s communities. That’s good news for all us who care about public safety. I think it’s also important for everyone here to know — and this will come as no surprise — that for our Attorney General, the safety of our communities, and of those who protect them, is paramount.
Attorney General Sessions has made it clear that he’s willing to do what it takes to help cities reduce crime and violence. And having worked very closely with Jeff Sessions during his time in the Senate, I can tell you those are not empty words. For anyone who cares about making sure our neighborhoods are places of promise and opportunity — where citizens can live, work and thrive — you can be sure you have an ally in our Attorney General.
In his short time in office, he has already set up a task force on crime reduction and public safety. The goal of this task force is to work with federal, state and local law enforcement and community organizations to identify effective public safety strategies. As part of this effort, the Department plans to host a National Summit on Crime Reduction and Public Safety at the end of June. We hope to learn at that summit about local strategies that work and determine how we at the federal level can support those efforts....
As you know, the BCJI program offers a unique approach to public safety and neighborhood revitalization. It’s place-based, community-oriented, driven by data and research and grounded in partnerships across agencies and across disciplines — all the elements you would expect in a successful public safety program.
The BCJI model builds on programs like Project Safe Neighborhoods that rely on coordination between federal, state and local law enforcement and prosecutors and on collaboration with researchers. It focuses on crime hot spots, and on distressed areas where resources are most urgently needed. Perhaps most importantly, it brings community leaders and law enforcement to the table together, which guarantees that this work isn’t being done in a vacuum.
This approach is not one we see often enough — which is a shame, because we know it works. In Evansville, Indiana, for example, from 2013 to 2015, reported crime dropped 42 percent in the BCJI target neighborhood of Jacobsville. Five hot spots in Milwaukee’s target area saw a 23 percent drop in violent crime over the same period. That’s compared to a 1 percent increase in the city as a whole. And in Austin, Texas, during the 16 months of BCJI operation in the Rundberg neighborhood, violent crime dropped 15 percent.
These are impressive numbers, and they’re especially notable when many other cities are seeing a trend in the opposite direction....
This work — the work that you’re doing — is more important than ever. Crime rates remain near historically low levels, but there’s no question that some cities are seeing troubling recent surges in violence — in some cases, dramatic increases. This is a time for vigilance, not complacency, because, as the Attorney General said, “When crime rates move in the wrong direction, they can move quickly.”
Interesting letters from and to US Senate about work of federal prosecutors in Trump era
Two new press pieces report on two notable new letters about the work of federal prosecutors in the new Administration. Here are the headlines, links, and leads:
From Politico, "Senators press Sessions on drug policy changes":
Three Democratic senators are urging Attorney General Jeff Sessions not to return to policies that urge prosecutors to pursue long mandatory-minimum prison sentences against low-level drug offenders. Sens. Cory Booker of New Jersey, Dick Durbin of Illinois and Patrick Leahy of Vermont sent Sessions a letter Tuesday pleading with him not to abandon the Obama administration’s “Smart on Crime” initiative that generally led to earlier releases for those convicted of drug dealing in the federal system.
“Changes to current drug charging policies that lead to more mandatory minimum penalties in low-level, nonviolent drug cases will not increase public safety and will only increase taxpayer spending on our bloated federal prison system,” the senators wrote. “We are concerned about a possible shift in the Justice Department’s treatment of federal drug cases and the specter that mandatory minimum penalties may once again be used by the Justice Department on a routine basis as tools to prosecute low-level nonviolent drug offenses.”
From the Washington Examiner, "Groups urge greater oversight of US Attorney nominees":
Criminal justice reform advocates are urging the Senate Judiciary Committee to exercise greater oversight of United States Attorney nominees. Their letter, sent Tuesday and signed by the American Conservative Union Foundation, Families Against Mandatory Minimums, Right on Crime Coalition and R Street Institute, comes less than a month after the Trump administration dismissed 46 U.S. attorneys.
U.S. attorneys make up the 93 positions nationwide. After they are nominated by President Trump, the Senate Judiciary Committee must consider them and make recommendations to the full Senate about confirmation. The letter includes questions the four groups think the Senate committee should ask all nominees, noting that prosecutors "are central to the integrity of the entire criminal proceeding."
Tuesday, March 21, 2017
Senate confirms two (holdover) nominees to US Sentencing Commission!!
Federal sentencing fans should be excited to hear that the full US Senate has now confirmed Judges Charles Breyer and Danny Reeves to be members of the United States Sentencing Commission. (And, proving that somethings can still get done in a bipartisan manner inside the Beltway, this Senate reporting webpage indicates that the confirmation vote was unanimous.) As previously noted, the original nominations of Judges Breyer and Reeves back in 2016 got stalled last Congress, but then outgoing Prez Obama thereafter renominated them for the US Sentencing Commission in January after the new Congress got to work. I had been pessimistic about the prospects of these holdover nominees getting a hearing and a vote, but my pessimism was obviously misguided.
Of particular importance, with Judges Breyer and Reeves now having been confirmed as full voting members of the US Sentencing Commission, they join Acting Chair Judge Bill Pryor and Commissioner Rachel Barkow to form a quorum on the USSC. The Commission needs seven voting members to be fully staffed, but four members are sufficient to get stuff done if they all vote together on amendments and other action items. Though it is not ideal for the USSC to have only four Commissioners rather than the full seven, it is literally "good enough for government work" and thus presents the possibility that the USSC can and will be more than just an effective research agency this year.
As previously flagged here and now highlighted here at the USSC website, the Commission promulgated some notable proposed amendments in late 2016 when it still had a nearly full compliment of Commissioners. Those proposed amendments have generated a whole lots of public comment, and I think they could prove to be quite consequential if formally passed in the coming months. (A USSC hearing on the amendments is now scheduled for April 18.) So, if the two new Commissioners agree to move forward with some form of the amendments promulgated late last year (which seems likely, especially because Judge Breyer was on the USSC during their development), it is now quite possible that the first big tangible federal sentencing development of the "Trump era" could involve significant federal sentencing guideline amendments.
Ruling 6-2, SCOTUS holds in Manuel that Fourth Amendment claim can be brought contesting pretrial confinement
The one criminal ruling handed down by the Supreme Court this morning, Manuel v. City of Joliet, No. 14–9496 (S. Ct. March 21, 2017) (available here), has a majority opinion authored by Justice Kagan than gets started this way:
Petitioner Elijah Manuel was held in jail for some seven weeks after a judge relied on allegedly fabricated evidence to find probable cause that he had committed a crime. The primary question in this case is whether Manuel may bring a claim based on the Fourth Amendment to contest the legality of his pretrial confinement. Our answer follows from settled precedent. The Fourth Amendment, this Court has recognized, establishes “the standards and procedures” governing pretrial detention. See, e.g., Gerstein v. Pugh, 420 U. S. 103, 111 (1975). And those constitutional protections apply even after the start of “legal process” in a criminal case — here, that is, after the judge’s determination of probable cause. See Albright v. Oliver, 510 U. S. 266, 274 (1994) (plurality opinion); id., at 290 (Souter, J., concurring in judgment). Accordingly, we hold today that Manuel may challenge his pretrial detention on the ground that it violated the Fourth Amendment (while we leave all other issues, including one about that claim’s timeliness, to the court below).
Justice Alito wrote the chief dissent (which is joined by Justice Thomas), and it gets started this way:
I agree with the Court’s holding up to a point: The protection provided by the Fourth Amendment continues to apply after “the start of legal process,” ante, at 1, if legal process is understood to mean the issuance of an arrest warrant or what is called a “first appearance” under Illinois law and an “initial appearance” under federal law. Ill. Comp. Stat., ch. 725, §§5/109–1(a), (e) (West Supp. 2015); Fed. Rule Crim. Proc. 5. But if the Court means more — specifically, that new Fourth Amendment claims continue to accrue as long as pretrial detention lasts — the Court stretches the concept of a seizure much too far.
What is perhaps most remarkable about the Court’s approach is that it entirely ignores the question that we agreed to decide, i.e., whether a claim of malicious prosecution may be brought under the Fourth Amendment. I would decide that question and hold that the Fourth Amendment cannot house any such claim. If a malicious prosecution claim may be brought under the Constitution, it must find some other home, presumably the Due Process Clause.
Prez Trump to nominate District Judge Amul Thapar to Sixth Circuit
As reported in this official press release, "President Donald J. Trump today announced his intent to nominate Judge Amul R. Thapar of Kentucky for the U.S. Court of Appeals for the Sixth Circuit." Here is more from the statement concerning what I believe is Prez Trump's first judicial nomination other than his selection of Neil Gorsuch for the Supreme Court:
The son of Indian-American immigrants, Judge Thapar serves on the District Court for the Eastern District of Kentucky. With his 2008 nomination by President George W. Bush and subsequent confirmation and appointment, Judge Thapar became the Nation’s first Article III judge of South Asian descent. Before his service on the bench, he was the U.S. Attorney for the Eastern District of Kentucky. Before that, he served as an Assistant U.S. Attorney in the Southern District of Ohio and the District of Columbia. He began his legal career in private practice, after clerkships with Judge S. Arthur Spiegel on the District Court for the Southern District of Ohio and then with Judge Nathaniel R. Jones of the Court of Appeals for the Sixth Circuit.
I know Judge Thapar personally and think very highly of him (in part because he asked me to file an amicus brief in one of his highest-profile sentencing cases). I expect that Judge Thapar will be easily confirmed by the Senate to the Sixth Circuit (though I suppose some Democrats may want to contest even lower-court confirmations as a show of resistance to Prez Trump in particular and to the GOP more generally). In addition, shrewd SCOTUS watchers might also view this nomination as a sign that Prez Trump will again consider seriously Judge Thapar for the next Supreme Court opening.
Monday, March 20, 2017
Continued consternation concerning capital charging decision in central Florida
I noted here on Friday the capital kerfuffle that has emerged in central Florida after newly-elected State Attorney Aramis Ayala announced that she would not pursue the death penalty for a cop killer or any other case during. As previously reported, Florida Governor Rick Scott reassigned the cop killer's case to another State Attorney. But now, as this local article reports, today Ayala indicated she might try to contest having the case reassigned:
Orange-Osceola State Attorney Aramis Ayala on Monday said she is not willing to surrender the case of accused cop killer Markeith Loyd. Gov. Rick Scott removed her from the case Thursday, outraged when she said she would not seek the death penalty. He appointed a special prosecutor, Brad King.
At a court hearing in Orlando on Monday, Ayala sat one seat away from King, the state attorney for Florida’s Fifth Judicial Circuit. What the governor did was unprecedented, she told Orange-Osceola Chief Circuit Judge Frederick Lauten, and “overstepped his bounds.” She said she may file a legal challenge and asked the judge temporarily to halt the two murder cases involving Loyd while she figures out what to do.
Loyd is charged with killing Orlando police Lt. Debra Clayton on Jan. 9 and, several weeks earlier, his pregnant ex-girlfriend, Sade Dixon. Ayala said she at least wants to be part of Loyd’s prosecution.
More than 100 lawyers, including two former Florida Supreme Court justices and Gil Garcetti, who prosecuted celebrity O.J. Simpson during his 1995 murder trial, are backing Ayala. They have signed a letter asking Scott to give the case back to her. She is an independently elected official, and Scott is guilty of overreach, they say.
In Tallahassee, Scott defended his decision. When asked whether he would consider removing Ayala from office, he said, “We’ll continue to look at our options. Right now I’m focused on Markeith Loyd.” Asked if he would get involved in other potential death-penalty cases in Orange and Osceola counties, he said, “I’ll deal with that at the time.”
On Monday, the assistant finance director at the Seminole County Clerk of Court Office was placed on paid administrative leave after posting Facebook comments saying Ayala “should be tarred and feathered if not hung from a tree” because she refuses to seek the death penalty. Stan McCullars, author of the post, later deleted it. He could not be reached for comment. His boss, Grant Maloy, said those comments “don’t reflect my beliefs.”
Ayala is the first African-American state attorney in Florida and took office Jan. 3, serving Orange and Osceola counties. During her five-month election campaign, she did not state her position on the death penalty.
There are many interesting elements of this battle over prosecutorial discretion, and the intersection of race and gender and southern politics just adds layers to the story. And speaking of race, former prosecutor Chuck Hobbs has this interesting new Hill commentary on these matters which includes these interesting closing observations:
The irony in this is that the Black Lives Matter movement began in earnest after George Zimmerman was acquitted of murdering Trayvon Martin by a Sanford, Florida jury in 2013. A year before his acquittal, Gov. Scott replaced then Sanford State Attorney Norm Wolfinger with Jacksonville State Attorney Angela Corey after Wolfinger dragged his feet for almost 50 days before finally recusing himself. Scott's move back then was applauded by many black lawyers, civil rights activists and concerned citizens who wanted to ensure that the highest charges and attendant punishments would be sought against Zimmerman.
Today, Scott is being blasted by some lawyers and activists for meddling in Ayala's use of discretion not to seek the death penalty. Now the key distinction is that Wolfinger recused himself while Ayala did not, one that could lead to a fascinating legal battle where the courts may have to determine whether Scott illegally overreached by replacing Ayala, or whether her refusal to follow his dictates allowed him leave to replace her.
"Capital Jurors in an Era of Death Penalty Decline"
The title of this post is the title of this notable paper authored by Brandon Garrett, Daniel Krauss and Nicholas Scurich. Here is the abstract:
The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s and today, the public appears fairly evenly split in its views on the death penalty. In this Essay, we explore, first, whether these changes in public opinion mean that fewer people will be qualified to serve on death penalty trials as jurors, and second, whether potential jurors are affected by changes in the practice of the death penalty.
We conducted surveys of persons reporting for jury duty at the Superior Court of Orange County, California. What we found was surprising. Surveys of jurors in decades past suggested ten to twenty percent of jury-eligible individuals would be excludable due to their substantial doubts about the death penalty. Despite Orange County’s status as a redoubt of death sentencing, we find that 35% or more of jurors reporting for jury service were excludable as having such substantial doubts about the death penalty that it would “substantially impair” their ability to perform their role as jurors. Indeed, large numbers went further: roughly a quarter said they would be reluctant to find a person guilty of capital murder knowing the death penalty was a possibility.
A final question asked whether the fact that executions have not been conducted in California for a decade impacts whether jurors would be favorable towards the death penalty. We found that, across all types of attitudes towards the death penalty, that fact made jurors less inclined to sentence a person to death. Rare punishments may seem more arbitrary, even to those who find them morally acceptable. We conclude by describing how this research can be useful for scholars, litigators, and judges concerned with selection of jurors in death penalty cases, and we discuss why, as social and legal practices change, more study of public attitudes towards punishment is needed.
Split Louisiana Supreme Court refuses to allow jury to hear about potentially applicable mandatory minimum sentence for habitual offender
I just learned today about an interesting set of opinions handed down last week by the Louisiana Supreme Court in Louisiana v. Guidry, No. 2016-KK-1412 (La. March 15, 2017) (available here). This lengthy local article about the decision, headlined "Jurors shouldn't be told possible mandatory minimums for repeat offenders, La. Supreme Court rules," provides this basic summary of the ruling and its context:
Louisiana jurors should not be told of possible mandatory minimum sentences defendants might face under the state's habitual offender law, because the knowledge could distract from their duty to determine guilt or innocence in a case, the Louisiana Supreme Court said in a split decision issued late Wednesday (March 15).
In a 5-2 ruling, the high court said the issue of possible mandatory minimums for repeat defendants "is too far attenuated from the guilt phase of trial to be discussed before a jury," and for a trial judge to allow such disclosure constitutes error. Chief Justice Bernette J. Johnson and Justice John L. Weimer dissented.
The decision comes in response to the Orleans Parish case of Corei Guidry, an accused drug dealer whose trial before Criminal District Court Judge Byron C. Williams has been stayed over this issue since last July. Guidry, 29, faces 10 to 50 years if found guilty of possession with the intent to distribute heroin. Should he be convicted of what would be his fourth felony offense, District Attorney Leon Cannizzaro's office would have the post-trial option to file a multiple-offender bill. If Guidry's prior history of three or more felony convictions can be proven at a post-conviction hearing, the judge would be required under state law to impose a mandatory minimum sentence of 50 years to life.
Here is how the majority opinion in this case begins:
The issue presented in this case is whether the trial court may allow a criminal jury to be informed of the possible mandatory minimum sentence faced by the defendant if, after a conviction on the offense being tried, he were to be sentenced under the Habitual Offender Law. For the reasons set forth below, we find the district court erred in denying the State’s motion in limine, which sought to disallow the defendant from mentioning in argument the mandatory minimum sentence the defendant could be subject to under the Habitual Offender Law should the State seek to enhance his sentence under that law and should the court find the State has proved all of the elements to warrant enhancement of the sentence. We find the issue of the possible mandatory minimum sentences that may be imposed if the defendant is convicted and the State successfully pursues enhancement of the sentence under the Habitual Offender law is too attenuated from the guilt phase of trial to be discussed before a jury, because it shifts the focus of the jury from its duty to determine guilt or innocence to issues regarding sentencing, possibly causing confusion of the issues and inviting the jury to speculate as to why a defendant may be facing such a term of imprisonment. Accordingly, we reverse the district court’s ruling.
And here is how the chief dissenting opinion starts:
I respectfully dissent and would deny the writ because the state has shown no abuse of discretion in the trial court’s denial of the state’s motion to prohibit the defense from referencing the possible life sentence that defendant will all but certainly face if convicted and adjudged a habitual offender. It has long been settled that it is within the trial judge’s discretion, in instances in which a specific punishment is not statutorily mandated, to permit or deny instruction or argument as to sentencing. The majority has accepted the invitation of the Orleans Parish District Attorney’s Office to establish a new per se rule which will substantially limit trial court discretion to control the information given to the jury. Under this new rule, any reference — whether by the court or in argument from the parties — to the enhanced sentence a defendant will face if he is convicted and adjudged a habitual offender, will be impermissible, unless perhaps the defendant elects to testify and subject himself to cross-examination about his prior convictions.
The trial court has the discretion to permit or prohibit references to sentencing, other than for those sentences automatically mandated by statute, because the trial judge sits in the best position to determine whether the penalty provisions at issue, including those applicable under the Habitual Offender Law, constitute “law applicable to the case,” of which the jury should be apprised under the circumstances of the particular prosecution.
I am unpersuaded that the trial court abused its discretion here by refusing to prohibit the defense from referencing the potential habitual offender sentence, especially in light of the overwhelming evidence that the Orleans Parish District Attorney’s Office almost reflexively (through his assistant district attorneys) institutes habitual offender proceedings upon securing the conviction at trial of a defendant with a prior felony. The prosecuting attorneys in Orleans Parish routinely wield the Habitual Offender Law, both during pre-trial plea negotiations and, in the event that tactic fails to yield a guilty plea, after obtaining a conviction at trial, to secure the harsher punishment of even non-violent offenders.
As the start of the dissenting opinion hints, there is a significant back-story to both the substantive and procedural issues surrounding this Louisiana case and the application of the state's Habitual Offender law. Because various opinions in Guidry engage in that back-story in various ways, the full opinion is definitely worth a full read.
Sunday, March 19, 2017
What crime and punishment questions might you like to see asked of SCOTUS nominee Neil Gorsuch?
I am not really expecting any tough sentencing questions to be directed toward Judge Neil Gorsuch at his coming Supreme Court confirmation hearings, but that will not stop me from imagining what such questions might sound like or from encouraging readers to share their ideas on such questions. And though I might readily spin out a long list of such questions here, I will be content for now to rattle off just two that come to mind on a Sunday afternoon during a brief break from bracket obsession:
In light of the Apprendi, Blakely, Booker line of constitutional rulings, and especially in the wake of the late Justice Scalia's dissent from the denial of cert a few years ago in Jones v. US, do you think it is important for the Supreme Court to soon take up the issue of whether, when and how federal judges may rely on so-called acquitted conduct when calculating guideline sentencing ranges and imposing sentences?
In light of modern capital jurisprudence since Gregg and the more recent Graham, Miller, Montgomery line of constitutional rulings, which have announced various constitutional limits on only two types of punishments, do you think the Eighth Amendment has generally be interpreted too broadly or too narrowly as a limit on modern punishment practices?
A few prior related posts on Judge Gorsuch:
- Prez Trump notes Judge Gorsuch's law school work on behalf of prisoners and defendants during SCOTUS nomination
- Will a Justice Gorsuch be a strong SCOTUS voice against over-criminalization?
- Highlighting the basis for hoping Judge Gorsuch will prove to be like Justice Scalia on some criminal justice issues
- "Will Gorsuch Be Another Scalia on Criminal Justice Issues? Not Likely"
- Reviewing why a Justice Gorsuch "might be hard to pigeonhole on criminal justice issues"
"Taking Medical Judgment Seriously: Professional Consensus As a Trojan Horse for Constitutional Evolution"
The title of this post is the title of this notable new paper authored by Charlie Eastaugh and available via SSRN. Here is the abstract:
In the 2015 case of Hall v. Florida, the Supreme Court of the United States (SCOTUS) undertook a revolutionary approach to its ‘evolving standards’ jurisprudence in punishments clause adjudication. Hall demonstrated for the first time an earnest embrace of ‘professional consensus’ as an indicia of evolving standards — decided by the liberal-leaning wing of the Court, with Justice Kennedy as the swing.
Through an analysis of Atkins v. Virginia, a case which finally protected intellectually disabled offenders from execution in 2002, this article introduces the professionally-accepted psychiatric definitions of intellectual disability (ID) and challenges the assumptions — still visible across the nation — that intelligence is as straightforward as numerical fact. It will be shown that an accurate assessment of ID for Atkins claims has so far not been forthcoming in many cases, with Hall as a prime example.
In Moore v. Texas — for which an eight-Justice Court heard oral argument in November 2016 — SCOTUS is faced with the chance to provide further, essential clarity to this debate. The immediate ramifications of Moore are likely to see this inmate spared from execution. This paper develops the claim that the case could mean far more: The Court’s novel acceptance of professional standards in Hall has created a precedential Trojan Horse — one loaded with medical professionals and armed with epistemic knowledge, and one which provides the strongest opportunity for further Eighth Amendment evolution. Should the Court follow the Hall trajectory in Moore, such an attack is primed for undermining another fundamental portion of capital punishment deemed abhorrent by medical professionals and civil liberties organisations across the nation: long — often decade-long — stays on death row, invariably in extreme solitary confinement.
Remarkable accounting of hundreds of Arizona offenders believing they were getting life with parole after parole abolished in state
The Arizona Republic has fascinating reporting here and here on the significant number of offenders in the Grand Canyon State who were seemingly given life with parole sentences after such sentences had been legislatively abolished. This lengthy main article is headlined "Hundreds of people were sentenced to life with chance of parole. Just one problem: It doesn't exist." Here are excerpts:
Murder is ugly, and murderers are not sympathetic characters. But justice is justice, and a deal is a deal.
We expect the men and women who administer the criminal justice system — prosecutors, defense attorneys, and especially judges — to know the law and to apply it fairly. Yet, for more than 20 years they have been cutting plea deals and meting out a sentence that was abolished in 1993: Life with a chance of parole after 25 or 35 years....
Danny Valdez, for example, was part of a 1995 drug deal that went bad in Glendale. One person was killed, and no one was sure who fired the shot. Valdez took a plea deal to avoid death row, and following the terms of the agreement, the judge sentenced him to life in prison with a chance of parole after 25 years.
The only problem: Parole was abolished in Arizona in 1993. As of January 1994, it was replaced by a sentence that sounds similar, but in fact nearly eliminates the possibility of ever leaving prison alive.
Valdez should have been sentenced to “life with chance of release after 25 years.” “Parole” was something that could be granted by judgment of a parole board, based on the prisoner's behavior and rehabilitation, without the approval of a politician. But release is a long shot, because it requires the prisoner to petition the Arizona Board of Executive Clemency, which can only recommend a pardon or commutation of sentence by the governor. Parole hasn't existed in Arizona since 1994. Even if a judge's sentence includes parole, it still won't happen. Yet since then, hundreds of defendants have been sentenced to life with chance of parole.
No one — not Valdez’s attorney, not the prosecutor, not the judge — ever told Valdez that he was not legally entitled to parole or a parole hearing. He found out when he received a letter last December from The Republic. He didn’t want to believe it. "Why would they sentence me with parole if it was abolished?" he asked in a return letter. “I was sentenced in 1995 and will be eligible for parole in 2020,” he wrote. “If I would of (sic) known that I would have to go through the process of pardons and commutations, I would of (sic) went to trial.”...
Between January 1994 and January 2016, a study by The Republic found, half of Arizona murder defendants sentenced to less than natural life sentences — at least 248 current prisoners in the Arizona Department of Corrections — were given sentences of life in prison with a chance of parole after 25 or 35 years. The sentence has not existed since the law was changed in 1993. But judges, prosecutors and defense attorneys continued to crank defendants through the system, seemingly unaware of the mistake.
Duane Belcher, a former head of the state clemency board, started gathering examples early in this decade, but he was fired by former Gov. Jan Brewer before he could do anything about it. He took the issue to the Arizona Supreme Court, which oversees all state courts.
Belcher, appointed to the Arizona Board of Pardons and Paroles in 1992, remained in the office long after it became the Arizona Board of Executive Clemency under the new law. He served many years as its chairman. “I started asking the question in 1994 when the law changed,” Belcher said. “What’s going to happen when 25 years comes? Nobody seemed to have the answer.”
Belcher was only talking about how the state was going to handle those prisoners sentenced to life with a chance of release. Then he noticed that some defendants were still being sentenced to life with chance of parole. He started to collect examples, concerned about the inaccurate sentences. Belcher, a former parole officer and former supervisor at the Department of Corrections, looked at it from both sides. “People are going into an agreement with the understanding that they will be eligible for parole, and it’s not the case,” he said. But he also worried about whether it could be grounds for reversing a sentence. “We don’t want to go back to the public and say we paved the way to letting go a murderer.”...
Several prisoners contacted by The Republic were unaware they were not really eligible for parole. “When they sentenced me, they did not say that parole didn’t exist,” Juvenal Arellano said in a letter to The Republic. Arellano killed a man while stealing his car in 2004, and he, too, pleaded to life with chance of parole. “The reason why I signed the contract was for the chance to get out after 25 years, and that was in the plea I signed. … I am prepared to pay for my error, but neither should they hide something so important from me.”...
Among the components of Arizona’s Truth in Sentencing bill to make life harsher for bad guys was language to abolish parole and disband the parole board. It established the Arizona Board of Executive Clemency in its place. The sentence of “life with chance of parole after 25 years,” the third-harshest sentence possible in Arizona, was eliminated. It was replaced by “life with chance of release after 25 years,” 35 years if the murder victim was a child. The other sentence options for first-degree murderers were death or natural life, which means no possibility of parole or release, ever.
Life with chance of release, in effect, is a mitigated sentence, meaning it is imposed when there are circumstances that render the crime less horrible than a murder that calls for natural life or death. Life sentences also may be imposed for conspiracy to commit first-degree murder, sexual conduct with a child, and in certain cases where a repeat offender is deemed incorrigible.
The two sentences sound very similar. And this has become a problem, because judges and lawyers tend to conflate the two and use the shorthand phrase “25 to life” to describe either, without defining the end result. But they are substantially different. Those eligible for parole could get a guaranteed hearing before the parole board, a state-appointed panel that had the authority to release the prisoner. It was not a guaranteed release, but instead depended on the prisoner’s behavior and rehabilitation while in prison. And if denied, the prisoner could re-apply after six months to a year.
But under the new system, there is no automatic hearing. Instead, the prisoner has to petition the Board of Executive Clemency, which would likely require a lawyer. The board can then choose to hold hearings on the prisoner’s likelihood to stay out of trouble and make a recommendation to the governor. Rather than parole, the prisoner needs a pardon or a sentence commutation. Only the governor can provide those. In essence, the process ceased to be a rehabilitation matter and became a political decision. The earliest “life with chance of release” cases will reach the 25-year mark in 2019. But there is no mechanism set up to handle the cases yet, and most of the prisoners are indigent and unlikely to be able to hire attorneys to start the process.
A Canadian perspective on constitutional proportionality review
Given the US Supreme Court's various struggles with proportionality review of sentences under the Eighth Amendment, I was intrigue to see this article recently posted on SSRN discussing how the Supreme Court of Canada has approached this same issue. The article authored by Lauren Witten is titled "Proportionality As a Moral Process: Reconceiving Judicial Discretion and Mandatory Minimum Penalties," and here is its abstract:
This article reconceives proportionality in sentencing as a constructive reasoning process rather than as an instrumental means of achieving a fair quantum of punishment. It argues that the Supreme Court of Canada has wrongly adopted the latter view by determining the constitutionality of mandatory minimum sentences according to hypothetical outcomes. R v. Nur is a paradigmatic example of how this error presumes a false objectivity in proportionality assessments that leaves the Court vulnerable to critiques of judicial activism.
This paper claims that a process-based conception of proportionality offers a stronger defence of judicial discretion in sentencing than the current framework offers; it better respects institutional roles and provides a more principled basis for declaring the current structure of mandatory minimum penalties unconstitutional. The proportionality as a process theory contends that judges alone are capable of reconciling the values of three constituencies in sentencing — the offender, the judge, and the public — and that this tripartite justification is integral to moral punishment. This paper shows how the process view of proportionality in sentencing is an implicit, but under-theorized, current in the law that should be explicitly developed as part of Canadian constitutional theory.
Friday, March 17, 2017
Capital debates in central Florida after new prosecutor says she will no longer bring capital charges
This lengthy local article, headlined "Gov. Scott appoints special prosecutor after Ayala says she won't pursue death penalty," reports on a set of interesting developments in the heart of Florida concerning the heart of prosecutorial discretion and application of the death penalty. Here are the details:
Gov. Rick Scott on Thursday removed Orange-Osceola State Attorney Aramis Ayala from the case of accused cop killer Markeith Loyd after she announced that she would not pursue the death penalty in his or any other case during her tenure.
In an executive order, Scott gave the case to Lake County State Attorney Brad King. “Earlier today, I called on State Attorney Ayala to immediately recuse herself from this case,” Scott said in a statement. “She informed me this afternoon that she refuses to do that. She has made it clear that she will not fight for justice, and that is why I am using my executive authority to immediately reassign the case.” Scott cited a state law allowing Florida’s governor to appoint a different prosecutor if he finds a “good and sufficient reason” to take it away from the original prosecutor.
Ayala issued a statement late Thursday, implying that her office would abide by Scott’s order. “Upon receipt of any lawful order, my office will follow that order and fully cooperate to ensure the successful prosecution of Markeith Loyd,” she said.
Ayala created a firestorm of criticism Thursday morning when she announced she would not seek the death penalty against Loyd or anyone else. “I have determined that doing so is not in the best interest of the community or the best interest of justice,” she said.
During a Thursday afternoon press conference, law enforcement leaders and families of victims expressed disappointment in Ayala’s intentions. Orlando Deputy Police Chief Robert Anzueto stood in front of Clayton’s widower, Seth Clayton, and spoke on his behalf. “My closure will be when Markeith Loyd is six-feet under,” Clayton told Anzueto....
Ayala’s announcement was a surprise and a position she had not made public before, despite a five-month campaign for public office, during which she was repeatedly asked about her stance. It also ran counter to information her employees had provided the Orlando Sentinel as recently as Tuesday.
Reaction came swiftly from state and local law enforcement officials, who were sharply critical. Attorney General Pam Bondi called the announcement “dangerous” and “a neglect of duty.”
But Ayala’s decision was heralded by death penalty opponents. “Ending use of the death penalty in Orange County is a step toward restoring a measure of trust and integrity in our criminal justice system,” said Adora Obi Nweze, president Florida State Conference NAACP. Orlando pastor Gabriel Salguero said, “By naming a broken program, Ms. Ayala creates hope in the community for working together to find better alternatives." Salguero leads the Calvario City Church and is president of the National Latino Evangelical Coalition....
Law enforcement officials, meanwhile, expressed their anger with the decision. Demings said he supported Scott’s decision to take the case away from Ayala. “To put it bluntly, the law enforcement officers of Central Florida are outraged,” Demings said....
State attorneys have wide discretion in who to charge with a crime, what charge to file and what penalty to seek. State law does not require them to seek the death penalty. Ayala, 42, has been state attorney for Orange and Osceola counties since Jan. 3. She upset incumbent Jeff Ashton in a primary election in August with the help of $1.4 million in donations from a political action committee with ties to billionaire George Soros, a liberal activist.
Ashton said Thursday that when Ayala worked for him, she did not oppose the death penalty. He called her newly-declared position “ridiculous.”... When he was her boss, she was assigned the capital murder case of David Lewis Payne, who’s accused of abducting his ex-girlfriend, putting her in the trunk of her car then killing her in 2015. “She came to me. She was really excited because she got her first death penalty case,” he said of Ayala.
During her news conference, Ayala cited several reasons she will not pursue the death penalty. Studies have shown, she said, that it provides no public safety benefits, that it is not a deterrent and that it winds up costing the state more than cases in which a defendant is sentenced to life in prison. It also gives victims’ families false hope, she said.
“Some victims will support and some will surely oppose my decision, but I have learned that death penalty traps many victims’ families in decades long cycle of uncertainty,” she said. “ … I cannot in good faith look a victim’s family in the face and promise that a death sentence handed down in our courts will ever result in execution.”...
Former State Attorney Lawson Lamar, who served six terms prior to Ashton, and before that was Orange County Sheriff, had this reaction to Ayala’s announcement: “I, frankly, was flabbergasted. … When you don’t have a death penalty, bad things happen.” He predicted it would mean more homicides in Orange and Osceola counties. Murders, rapists and criminals whose crimes carry a life sentence now have an incentive to kill witnesses, knowing that they face no greater penalty, he said.
“I’ve been telling people, ‘Give Aramis a chance. … She’s smart. She’s well spoken.’ I think this is a big mistake. I hope the backlash from it causes her to reconsider, because in life, as an elected official, you’re supposed to protect, defend and represent the people.”
Taking a critical perspective on the work of former US Attorney for SDNY Preet Bharara
David Patton, executive director of the Federal Defenders of New York, penned this notable commentary for the Daily News concerning the work of fired SDNY US Attorney Preet Bharara. The piece is headlined "An honest assessment of Preet Bharara's record: Harsh prosecutions put more African-Americans and Hispanics behind bars," and here are excerpts:
Last week the U.S. attorney for the Southern District of New York, Preet Bharara, was fired by President Trump, and the news media rushed to characterize his seven-year tenure. Was he the "sheriff of Wall Street" for his insider trading prosecutions, a "showy pragmatist" for his affinity for television cameras, or the drainer of political swamps for his political corruption cases? At least in part, he was surely all of those things.
But none of the tags do much to describe the actual work of his office and the overwhelming number of prosecutions it brings that have nothing to do with Wall Street or Albany. Federal criminal cases rarely involve the rich or powerful. Consistent with the rest of the country, 80% of federal defendants in the Southern District of New York are too poor to hire a lawyer. Seventy percent are African-American or Hispanic. The most commonly prosecuted offense type, by far, is drugs.
Last year, 45% of all federal criminal prosecutions in the Southern District were for drugs. Two other leading offense types are firearms and immigration. The firearms cases are mostly gun possession cases transferred from state prosecutions in the Bronx. They arise when NYPD officers search a car, apartment or person and claim they find a gun. Those arrested are plucked out of state court and brought to federal court for the express purpose of imposing lengthier sentences. The immigration cases, so-called "illegal re-entry" cases, are prosecutions of people who were previously deported from the United States and came back. Depending on their criminal history they typically face anywhere from two to seven years in prison before being removed from the United States again.
Bharara surely deserves credit for his efforts to clean up the financial industry and the political system. But federal prosecutors should be judged primarily on how wisely, or not, they use the awesome power of their office to impose the many years of imprisonment on the thousands of people they choose to prosecute.
And choose to prosecute they do. Unlike state and local prosecutors who largely react to police investigations and arrests, federal prosecutors have enormous discretion to decide who and what to prosecute. Their jurisdictions are wide-ranging and overlapping, and many of the people they charge would otherwise be prosecuted in state court under less punitive laws.
Judging Bharara by those standards, his tenure was decidedly mixed. His office greatly increased the prosecution of poor people of color using sprawling conspiracy and racketeering statutes to charge many low level drug dealers and addicts together with bigger players in the same indictments. Some of the people charged were already serving time in state prisons for the same conduct. Many others were caught up in "sting" operations in which the criminal conduct was initiated by agents and informants.
He also continued the programs begun by his predecessors in the Bush administration of prosecuting people for street crimes that were once considered the exclusive province of state courts. Once again, those charges are brought almost entirely against poor people of color from the Bronx. And across the board in drug and immigration cases, his office too often sought unnecessarily severe sentences....
When we evaluate the performance of top prosecutors, we should pay attention to whether they advance the goals of maintaining public safety while also reducing unnecessary and unequal terms of punishment. And we should spend a lot less time concerned about how they handle the small sliver of cases that make the headlines.
Eleventh Circuit panel declares Alabama murderer incompetent to be executed
A panel of the Eleventh Circuit on Wednesday reached the rare conclusion that an Alabama death row prisoner was not competent to be executed. The majority opinion authored by Judge Martin in Madison v. Commissioner, No. 16-12279 (11th Cir. March 15, 2017) (available here), gets started this way:
Thirty years ago, the Supreme Court held that the Eighth Amendment prohibits the execution of a person who is incompetent. Ford v. Wainwright, 477 U.S. 399, 409–10, 106 S. Ct. 2595, 2602 (1986). The Court has since clarified that a person cannot be executed if he lacks a “rational understanding” of the reason for his execution. Panetti v. Quarterman, 551 U.S. 930, 954–60, 127 S. Ct. 2842, 2859–62 (2007). This standard requires the prisoner to be able to rationally understand the connection between the crime he committed and the punishment he is to receive. See Ferguson v. Sec’y, Florida Dep’t of Corr., 716 F.3d 1315, 1336 (11th Cir. 2013). The Supreme Court told us that if the prisoner does not understand this connection, “the punishment can serve no proper purpose” and cannot be carried out. Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.
This habeas petitioner, Vernon Madison, is a 66-year-old man on death row for the murder of a police officer over three decades ago. In recent years, Mr. Madison has suffered strokes resulting in significant cognitive and physical decline. His lawyers argue here that he is mentally incompetent to be executed under Ford and Panetti. Finding that Mr. Madison had made a substantial threshold showing of incompetency, an Alabama trial court held a competency hearing. At the hearing, Mr. Madison presented unrebutted testimony from Dr. John Goff that his strokes caused major vascular disorder (also known as vascular dementia) and related memory impairments and that, as a result, he has no memory of committing the murder — the very act that is the reason for his execution. To the contrary, Mr. Madison does not believe he ever killed anyone. Dr. Goff testified that due to his memory impairments, Mr. Madison does not have a rational understanding of why the state is seeking to execute him. The State presented expert testimony from Dr. Karl Kirkland. Dr. Kirkland testified that Mr. Madison was able to accurately discuss his legal appeals and legal theories with his attorneys and — on pretty much this basis alone — concluded that Mr. Madison has “a rational understanding of [his] sentence.” Accepting the testimony of Dr. Kirkland, the Alabama trial court decided that Mr. Madison is competent to be executed. Mr. Madison argues that the trial court’s decision relied on an unreasonable determination of the facts and involved an unreasonable application of the law. We agree.
In so holding, we are mindful of the great deference due to state court decisions on federal habeas review, particularly when the state court is applying a general standard like the one in Panetti. See Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011) (“The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” (quotation omitted)). But “even a general standard may be applied in an unreasonable manner.” Panetti, 551 U.S. at 953, 127 S. Ct. at 2858. Panetti may set out a general standard for competency, but the focus of the inquiry is clear. Panetti doesn’t ask whether the prisoner can talk about the history of his case or legal theories with his attorneys. Instead, Panetti requires courts to look at whether the prisoner is able to rationally understand the connection between the crime he committed and the punishment he is to receive. See Panetti, 551 U.S. at 960, 127 S. Ct. at 2862. One of the experts testified that due to a mental disorder, Mr. Madison was not able to make this connection. The other expert never addressed this question at all. This record is therefore wholly insufficient to support the trial court’s decision. We conclude that the state court’s decision that Mr. Madison is competent to be executed rested on an unreasonable determination of the facts and involved an unreasonable application of Panetti. We therefore reverse the District Court’s denial of habeas relief.
A dissent authored by Judge Jordan gets started this way:
After reviewing the record, I believe that Vernon Madison is currently incompetent. I therefore do not think that Alabama can, consistent with the Constitution, execute him at this time for his murder of a police officer three decades ago. See generally Panetti v. Quarterman, 551 U.S. 930, 958 (2007) (explaining that a state cannot put to death a prisoner who “cannot reach a rational understanding of the reason for the execution”). But Congress has chosen to generally prohibit federal courts from adjudicating constitutional claims anew on habeas review, so Mr. Madison’s competency (or lack thereof) is not our initial call to make. Under the restrictive standards we are required to apply, see 28 U.S.C. § 2254(d), and given the way we interpreted Panetti in Ferguson v. Secretary, 716 F.3d 1315 (11th Cir. 2013), I do not think Mr. Madison can obtain habeas relief.
Wednesday, March 15, 2017
AG Sessions talks again about "the challenge of violent crime and drugs" and about support for law enforcement
The Department of Justice now has posted here an extended speech delivered by Attorney General Jeff Sessions today in Richmond, Virginia (which just happens to be where I am headed tomorrow for a faculty workshop). Those who have been following what AG Sessions has been saying in recent months (and really throughout his whole career) will likely not find anything all that new or surprising in this latest speech. Nevertheless, I still found the entire speech and especially the following passages worth flagging in this space. And I have highlight two particular sentences in the discussion of drugs that I have not previously seen and that could and perhaps should capture a lot of attention:
First, we should keep in mind some context. Overall, crime rates in our country remain near historic lows. Murder rates are half of what they were in 1980. The rate of violent crime has fallen by almost half from its peak.... In the past four decades, we have won great victories against crime in America. This happened under leadership from both political parties, and thanks above all to the work of prosecutors and good police using data-driven methods and professional training. Hundreds of thousands of Americans are alive today as a result.
But in the last two years, we’ve seen warning signs that this progress is now at risk. The latest FBI data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent — the largest one-year increase since 1991. The murder rate increased 10 percent — the largest increase since 1968. And all of this is taking place amid an unprecedented epidemic of heroin and opioid abuse....
My fear is that this surge in violent crime is not a “blip,” but the start of a dangerous new trend. I worry that we risk losing the hard-won gains that have made America a safer and more prosperous place. While we can hope for the best, we can’t afford to be complacent. When crime rates move in the wrong direction, they can move quickly....
Last month the President gave us clear direction, issuing three executive orders that direct the federal government to reduce crime and restore public safety. This task will be a top priority of the Department of Justice during my time as Attorney General. I’d like to talk briefly about how we’re tackling this challenge.
First, we’re making sure the federal government focuses our resources and efforts on this surge in violent crime. Two weeks ago, I announced the formation of a Department of Justice Task Force on Crime Reduction and Public Safety. It includes crime reduction experts from throughout the Department of Justice, including the heads of the FBI, the ATF, the DEA and the U.S. Marshals Service. The task force will evaluate everything we are doing at the federal level.
Second: We need to use every lawful tool we have to get the most violent offenders off our streets. In recent years, we have seen a significant shift in the priority given to prosecuting firearms offenders at the federal level. This trend will end. This Department of Justice will systematically prosecute criminals who use guns in committing crimes....
Third: To turn back this rising tide of violent crime, we need to confront the heroin and opioid crisis in our nation — and dismantle the transnational cartels that bring drugs and violence into our neighborhoods.
Our nation is in the throes of a heroin and opioid epidemic. Overdose deaths more than tripled between 2010 and 2014. According to the CDC, about 140 Americans on average now die from a drug overdose each day. That means every three weeks, we are losing as many American lives to drug overdoses as we lost in the 9/11 attacks. Illegal drugs are flooding across our southern border and into cities across our country, bringing violence, addiction, and misery. We have also seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs. As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.
There are three main ways to fight the scourge of drugs: criminal enforcement, treatment and prevention. Criminal enforcement is essential to stop both the transnational cartels that ship drugs into our country, and the thugs and gangs who use violence and extortion to move their product. One of the President’s executive orders directed the Justice Department to dismantle these organizations and gangs — and we will do just that.
Treatment programs are also vital. But treatment often comes too late to save people from addiction or death. So we need to focus on the third way we can fight drug use: preventing people from ever taking drugs in the first place.
I realize this may be an unfashionable belief in a time of growing tolerance of drug use. But too many lives are at stake to worry about being fashionable. I reject the idea that America will be a better place if marijuana is sold in every corner store. And I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana — so people can trade one life-wrecking dependency for another that’s only slightly less awful. Our nation needs to say clearly once again that using drugs will destroy your life.
In the ’80s and ’90s, we saw how campaigns stressing prevention brought down drug use and addiction. We can do this again. Educating people and telling them the terrible truth about drugs and addiction will result in better choices. We can reduce the use of drugs, save lives and turn back the surge in crime that inevitably follows in the wake of increased drug abuse.
Finally: The federal government alone cannot meet the challenge of violent crime and drugs — so we need to protect and support our brave men and women in law enforcement. About 85 percent of all law enforcement officers in our nation are not federal, but state and local. These are the men and women on the front lines — the ones doing most of the tough and often dangerous work that keeps our neighborhoods safe....
The new challenge of violent crime in our nation is real — and the task that lies before us is clear. We need to resist the temptation to ignore or downplay this crisis. Instead, we must tackle it head-on, to ensure justice and safety for all Americans. We will enforce our laws and put bad men behind bars. We will fight the scourge of drug abuse. And we will support the brave men and women of law enforcement, as they work day and night to protect us. Together, let us act to meet this challenge, so that our children will not look back and say that we let slip from our grasp all we had done to make America a safer place.
I find it quite interesting and significant that AG Sessions, in the first sentence highlighted above, has highlighted the severity of the current US drug problem in term of the number of deaths caused by the worst and deadliest terrorist attack in US history. The decision to frame the problem in these terms reveals just how seriously the Attorney General sees the problem, and I am in some sense inclined to respect and applaud this framing in part because I fear a lot of people who have not been directly touched by the modern opioid epidemic do not fully appreciate how many lives are being lost to it.
Ironically, though, the kind of wise intensity I see reflected in the first sentence highlighted above is undercut but what strikes me as a misguided intensity reflected in the second sentence highlighted above. Because tens of thousands of individuals are dying for opioid overdoses and nobody dies from a marijuana overdoes, it make a whole lot of sense to me that a whole lot of people would see a whole lot of value in encouraging people to trade an opioid dependency for a marijuana dependency. (And this simple analysis, of course, leaves out the statistically reality that the vast majority of people who use marijuana do not become dependent on it.)
Noting how prisons serve as a kind of public works program in rural areas
This recent Business Insider commentary authored by John Eason provides an important reminder of some economic realities integral to the modern American prison system. The piece is headlined "The prison business is booming in rural America and there's no end in sight," and here are excerpts:
While much has been written about mass incarceration, less is known about the prison building boom and the role it plays in slowing reform of the criminal justice system. As I explain in my book, "Big House on the Prairie," the number of prisons in the US swelled between 1970 and 2000, from 511 to nearly 1,663. Prisons constructed during that time cover nearly 600 square miles, an area roughly half the size of Rhode Island. More than 80 percent of these facilities are operated by states, approximately 10 percent are federal facilities and the rest are private.
The prison boom is a massive public works program that has taken place virtually unnoticed because roughly 70 percent of prisons were built in rural communities. Most of this prison building has occurred in conservative southern states like Florida, Georgia, Oklahoma and Texas. Much of how we think about prison building is clouded by the legacy of racism and economic exploitation endemic to the US criminal justice system. Many feel that prison building is the end product of racist policies and practices, but my research turned up a more complicated relationship.
People of color have undoubtedly suffered from the expansion of prisons, where they are disproportionately locked up, but they have also benefited. Blacks and Latinos are overrepresented among the nation’s 450,000 correctional officers. Prisons are also more likely to be built in towns with higher black and Latino populations. Many may be surprised to learn that residents of these often distressed rural communities view local prisons in a positive light....
Because rural communities have grown increasingly dependent on prisons, they will not be easily convinced to give them up. My research shows that for many struggling rural communities plagued by problems most associate with urban neighborhoods — poverty, crime, residential segregation, de-industrialization and failing schools — prisons offer a means of survival. Prisons provide a short-term boost to the local economy by increasing median family income and home value while reducing unemployment and poverty....
It doesn’t look like the footprint of prisons will be shrinking any time soon. Given our current political climate, it’s more likely we will see more prisons built. Weaning rural communities off the prison economy will mean considering alternative investment strategies like green industries. If we do not provide creative alternatives to depressed rural communities, we stand little chance in reducing their over-reliance on prisons.
Tuesday, March 14, 2017
Split en banc Eleventh Circuit writes at length restricting habeas authority in ACCA case
The Eleventh Circuit has a massive new en banc opinion about federal habeas law in McCarthan v. Director of Goodwill Industries-Suncoast, Inc., No. 12-14989 (11th Cir. March 14, 2017) (available here). The start of the majority opinion in McCarthan, which was authored by Judge Willaim Pryor, should provide enough context for interested readers to figure out why this McCarthan decision engendered a bunch of concurring and dissenting opinions. Here is the start of a whole set of opinions that together runs nearly 200 pages:
This appeal requires us to decide whether a change in caselaw entitles a federal prisoner to an additional round of collateral review of his sentence. Congress gives a federal prisoner like Dan McCarthan one opportunity to move to vacate his sentence unless that remedy is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). When McCarthan pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g), he understood that the district court would enhance his sentence under the Armed Career Criminal Act, id. § 924(e). He did not appeal that sentence. When McCarthan later moved to vacate his sentence, he again said nothing about the enhancement. After foregoing those opportunities to complain about the enhancement of his sentence, McCarthan petitioned for a writ of habeas corpus. McCarthan argues that his earlier motion to vacate was inadequate to test his objection to his sentence enhancement because our caselaw about the Armed Career Criminal Act has changed. But because the motion to vacate gave McCarthan an opportunity to challenge his sentence enhancement, his remedy was not inadequate or ineffective to test the legality of his sentence, regardless of any later change in caselaw.
For eighteen years, our Court has maintained that a change in caselaw may trigger an additional round of collateral review, see Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), but our precedents have ignored the text of the statute. As we struggled to apply our precedents, we employed a five-factor test and granted relief only twice. See Mackey v. Warden, FCC Coleman-Medium, 739 F.3d 657 (11th Cir. 2014); Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013). Because our precedents have failed to adhere to the text of section 2255(e), have not incurred significant reliance interests, and have proved unworkable, today we overrule them. We join the Tenth Circuit in applying the law as Congress wrote it, see Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) (Gorsuch, J.), and hold that a change in caselaw does not make a motion to vacate a prisoner’s sentence “inadequate or ineffective to test the legality of his detention,” 28 U.S.C. § 2255(e). We affirm the dismissal of McCarthan’s petition for a writ of habeas corpus.
Prison Policy Initiative releases 2017 version of "Mass Incarceration: The Whole Pie"
The Prison Policy Initiative has an updated version of its terrific incarceration "pie" graphic and report, which is available at this link (along with a larger version of the pie graphic reprinted here). Here is part of the report's introductory text and subsequent discussion:
Wait, does the United States have 1.3 million or more than 2 million people in prison? Are most people in state and federal prisons locked up for drug offenses? Frustrating questions like these abound because our systems of confinement are so fragmented and controlled by various entities. There is a lot of interesting and valuable research out there, but varying definitions make it hard — for both people new to criminal justice and for experienced policy wonks — to get the big picture.
This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 901 juvenile correctional facilities, 3,163 local jails, and 76 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories. And we go deeper to provide further detail on why people are locked up in all of those different types of facilities.
Pie chart showing the number of people locked up on a given day in the United States by facility type and the underlying offense using the newest data available in March 2017.Pie chart showing the number of people locked up on a given day in the United States in jails, by convicted and not convicted status, and by the underlying offense, using the newest data available in March 2017. Graph showing the number of people in jails from 1983 to 2014 by whether they have been convicted or not. The number of convicted people stopped growing in 1999, but the number of unconvicted people continues to grow.Graph showing, for the years 2007 to 2015, the number of people ~~ 10.9 to 13.6 million ~~ a year who are admitted to jail per year and the number of people ~~ about 700,000 to 800,000 ~~ who are in jail on a given day.Graph showing the incarcerated populations in federal prisons, state prisons, and local jails from 1925 to 2015. The state prison and jail populations grew exponentially in the 1980s and 1990s, and began to decline slowly after 2008, while federal prison populations have always been smaller and show less change over time.
While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 641,000 people walk out of prison gates, but people go to jail over 11 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (187,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year....
With a sense of the big picture, a common follow-up question might be: how many people are locked up for a drug offense? We know that almost half a million people are locked up because of a drug offense. The data confirms that nonviolent drug convictions are a defining characteristic of the federal prison system, but play only a supporting role at the state and local levels. While most people in state and local facilities are not locked up for drug offenses, most states’ continued practice of arresting people for drug possession destabilizes individual lives and communities. Drug arrests give residents of over-policed communities criminal records, which then reduce employment prospects and increase the likelihood of longer sentences for any future offenses.
All of the offense data presented comes with an important set of caveats. A person in prison for multiple offenses is reported only for the most serious offense so, for example, there are people in prison for “violent” offenses who might have also been convicted of a drug offense. Further, almost all convictions are the result of plea bargains, where people plead guilty to a lesser offense, perhaps of a different category or one that they may not have actually committed.
And many of these categories group together people convicted of a wide range of offenses. For example, “murder” is generally considered to be an extremely serious offense, but “murder” groups together the rare group of serial killers, with people who committed acts that are unlikely for reasons of circumstance or advanced age to ever happen again, with offenses that the average American may not consider to be murder at all. For example, the felony murder rule says that if someone dies during the commission of a felony, everyone involved can be as guilty of murder as the person who pulled the trigger. Driving a getaway car during a bank robbery where someone was accidentally killed is indeed a serious offense, but many may be surprised that this is considered murder.
Florida law now officially requires jury unanimity for death verdicts
Roughly fourteen months after the Supreme Court in Hurst found constitutional problems with the way Florida operationalized juries in its capital punishment scheme, and after some legislative and litigation fits and starts, the state's lawmakers have now reformed its system to require jury unanimity at sentencing. This local article, headlined "Gov. Rick Scott signs new unanimous jury standard for death penalty into law," reports on the basics:
It now takes a unanimous jury to sentence someone to death in the state of Florida. Gov. Rick Scott on Monday night signed into law a new requirement that raises the jury standard for death penalty cases from 10-2. The legal change was made necessary by a Florida Supreme Court ruling in October that found the state's sentencing laws unconstitutional.
The Legislature passed the new rules (SB 280) overwhelmingly last week. The death penalty fix is the first major law passed and signed in the 2017 session. Florida joins most other states in requiring unanimous juries.... "Our goal was that the death penalty cases proceed in an orderly manner under a law that was constitutional," Senate President Joe Negron, R-Stuart, said last week.
Scott's signature also allows prosecutors to move forward with cases in which they plan to seek the death penalty. Uncertainty around the court's order in Hurst vs. Florida put a pause on new death sentences.
In passing the death penalty fix, the Legislature opted not to address the hundreds of existing death row inmates whose cases were decided under sentencing laws thrown out by the courts. Rep. Chris Sprowls, R-Palm Harbor, a former prosecutor and the House Judiciary chairman, said he wanted to deal with this issue and left it up to the courts to handle existing death cases decided by a nonunanimous jury. Some of those inmates have already been granted a new sentencing hearing.
Just three lawmakers voted against the death penalty fix: Two House Democrats, Joseph Geller of Aventura and Robert Asencio of Miami, who oppose the death penalty on moral grounds; and Republican Rep. Blaise Ingoglia of Spring Hill. His was a protest vote, Ingoglia said. "With a unanimous jury, you need all 12," he said Friday. "You can have one activist and one vote and prevent the death penalty from kicking in."
Monday, March 13, 2017
A notable pitch (from a notable author) to look at criminal justice reform as a "women's issue"
The Hill today published this notable new commentary authored by Mia Love and Holly Harris under the headline "Criminal justice reform: A women’s issue." I recommend the piece in full, and here are excerpts:
The media has devoted a lot of ink and airtime to the sky-high incarceration rates here in the U.S., but sadly, that coverage often ignores a key demographic: women. The female prison population has spiked in recent years, and since Wednesday marked International Women’s Day, we thought this would be a good time to shed more light on this disturbing trend.
Between 1980 and 2014, the number of women in prison grew by an alarming 700 percent — increasing at a rate 50 percent higher than men. Over the same period, the number of women in local jails has increased 14-fold. This impact falls disproportionately on African-American women, whose rate of imprisonment is double that of white women.
Those statistics are even more disheartening when you consider approximately 60 percent of women in prison are mothers. We need to take a serious look at what it means for those women — and the children they leave behind....
Women in the federal system are more likely to be incarcerated for a nonviolent offense. Some 94 percent of women in federal prison are serving a sentence for nonviolent drug, property or public-order offenses, as well as 63 percent of women in state prisons. Our system needs to do better addressing the root causes of these crimes and offering alternatives to incarceration for women who pose no grave threat to society. We need to pursue policies that offer better access to community supervision programs and treatment instead of jail time for those with drug addictions....
While female incarceration declined 2 percentage points between 2014 and 2015, criminal-justice reform is still as critical as ever. As the laboratories of democracy, red and blue states across our nation have enacted innovative reforms that have prioritized public safety while strengthening families, ultimately benefiting society as a whole.
We must pay more attention to the spike in female inmates and, more importantly, the emotional and financial costs of women in and out of prison. As a society we are not only failing ourselves, we are failing our mothers, wives, and sisters. For that reason — and so many others — we hope Congress moves comprehensive criminal-justice reform to the president’s desk in 2017.
Astute readers perhaps recall that Mia Love holds the notable distinction of being the first black Republican woman ever elected to Congress. As this post from 2014 after her election reveals, I had an inkling that Mia Love might be inclined to become an important voice in support of criminal justice reform. This latest commentary suggests that inkling is proving accurate.
Sunday, March 12, 2017
"Reassessing Prosecutorial Power Through the Lens of Mass Incarceration"
The title of this post is the title of this new and notable book review authored by Jeffrey Bellin. Here is the abstract:
Prosecutors have long been the Darth Vader of academic writing: mysterious, all-powerful and, for the most part, bad. This uber-prosecutor theme flows like the force through John Pfaff’s highly-anticipated new book, "Locked In: The True Causes of Mass Incarceration — and How to Achieve Real Reform." The book concludes that police, legislators, and judges are not to blame for Mass Incarceration. Instead, “the most powerful actors in the entire criminal justice system” (prosecutors) have used their “almost unfettered, unreviewable power to determine who gets sent to prison and for how long.”
Locked In’s data-driven thesis aligns neatly with the academic consensus. If prosecutors are the most powerful actor in the criminal justice system, they must be responsible for its most noteworthy product — Mass Incarceration. The only problem is that it probably isn’t right. While Pfaff’s empirical findings have been embraced by the media, the legal academy, and even former President Obama, they are grounded in questionable data. With these flaws exposed, the familiar villains of the Mass Incarceration story reemerge: judges and, above all, legislators. This reemergence provides a very different focus for reforms designed to unwind Mass Incarceration. It also says something profound about prosecutorial power.
Prosecutors possess substantial power to let people escape from an increasingly inflexible system. But decades of academic claims suggesting that prosecutors are equally powerful when acting in the opposite direction — to dictate sanctions — fold under scrutiny. When it comes to imposing incarceration, prosecutorial power is largely contingent on the actions of other, more powerful criminal justice actors.
Reviewing why a Justice Gorsuch "might be hard to pigeonhole on criminal justice issues"
We are now only a week from the start of confirmation hearings for Supreme Court nominee Neil Gorsuch, and this new extended AP article reviews Judge Gorsuch's record on the cases that I usually give the most attention. The article is headlined "Gorsuch has ruled for police, and suspects, in crime cases," and here are excerpts:
Judge Neil Gorsuch wasn't convinced that a teenager who made burping sounds in a classroom should be arrested, handcuffed and taken to juvenile detention in a police car. Gorsuch said the 13-year-old student from Albuquerque, New Mexico, should have been able to sue the arresting officer for excessive force. His powerful dissent in the case last year offers a glimpse of how Gorsuch — a favorite among conservatives — might be hard to pigeonhole on criminal justice issues if he is confirmed to the Supreme Court....
During a decade on the federal appeals court in Denver, Gorsuch has raised concerns about intrusive government searches and seizures that he found to violate constitutional rights. He generally has ruled against defendants appealing their convictions and those who claim they received unfair trials. But he also has warned in writings and speeches about the danger of having too many criminal laws on the books.
"What happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?" he said in a 2013 speech. That skepticism seems to align him with the late Justice Antonin Scalia, a strong believer in protecting people from overzealous police and prosecutors. Scalia at times sided with liberals in tossing out evidence that breached privacy rights and in strengthening the right to confront accusers in court.
Liberal groups are opposing Gorsuch's nomination, in part based on views that his overall record on criminal justice is too harsh. "At a time when the abuses of our criminal justice system are becoming a national crisis, we cannot confirm a justice who does not understand the role of the Supreme Court to protect the most vulnerable among us," said a report from People for the American Way, a liberal advocacy group.
When Gorsuch has said there are too many criminal laws, he has often focused on business regulations, such as requirements that mattress sellers preserve mattress tags or that lobster importers use cardboard instead of plastic....
Some of his opinions have faulted police for seizing evidence in violation of the Fourth Amendment, which bars unreasonable searches. In a case last year, Gorsuch parted from the two-judge majority in a ruling that said police had a right to walk onto a man's property to knock on the front door even though there were several "No Trespassing" signs in the yard. Gorsuch mocked the majority's opinion, saying it gave government agents the right to "invade" a homeowner's property "whatever the homeowner may say or do about it."...
Paul Rothstein, a professor at Georgetown University Law Center, said Gorsuch appears to have a mixed record in criminal cases and "seems to call them as he sees them." "I think his primary area of concern for the citizen is in the privacy of your home or your private belongings," Rothstein said. "He believes there is a private area and he's pretty strong about that."
Gorsuch has been less sympathetic to defendants in other rulings. In a 2012 case, Gorsuch dissented from a majority opinion in which his colleagues sided with an Oklahoma man seeking to overturn his murder conviction due to an ineffective lawyer. The lawyer had advised his client to reject a plea agreement that called for a 10-year sentence. Instead, the man went to trial, was convicted and sentenced to life in prison.
The majority said the lawyer's decision to reject the plea had "disastrous results" for his client. But Gorsuch said the man's right to effective representation was not violated because he was later convicted in a fair trial.
A few prior related posts on Judge Gorsuch:
- Prez Trump notes Judge Gorsuch's law school work on behalf of prisoners and defendants during SCOTUS nomination
- Will a Justice Gorsuch be a strong SCOTUS voice against over-criminalization?
- Highlighting the basis for hoping Judge Gorsuch will prove to be like Justice Scalia on some criminal justice issues
- "Will Gorsuch Be Another Scalia on Criminal Justice Issues? Not Likely"
Thursday, March 09, 2017
Group of Senators revive idea of a National Criminal Justice Commission
Long time readers may recall that, way back in 2009, then-Senator Jim Webb introduced legislation to create a National Criminal Justice Commission. As reported here by The Crime Report, what was old is now new again, and might this time have a chance to become a reality:
A bipartisan group of more than 20 U.S. senators is making another attempt to establish the first national commission in 50 years to study the criminal justice system and make recommendations on improving it. Smaller groups of senators have pursued the idea in recent years, but it has failed to amass enough support to pass.
One of the lead sponsors, Sen. Gary Peters (D-MI), said, “Our criminal justice system is built on the pillars of fairness and equality, but too many Americans see growing challenges in our justice system ranging from overburdened courts and unsustainable incarceration costs to strained relationships between law enforcement and the communities they serve.”
Joined by Sens. John Cornyn (R-TX) and Lindsey Graham (R-SC) as primary sponsors, the bill would establish a 14-member, bipartisan National Criminal Justice Commission that would conduct an 18-month, comprehensive review of the national criminal justice system. It would then issue recommendations for “changes in oversight, policies, practices, and laws to reduce crime, increase public safety and promote confidence in the criminal justice system.”
The panel would be composed of appointees of President Trump and congressional leaders of both parties, including experts on law enforcement, criminal justice, victims’ rights, civil liberties, and social services....
Under an order from President Trump, Attorney General Jeff Sessions recently set up a Task Force on Crime Reduction and Public Safety, but that panel is being run by heads of federal law enforcement agencies and does not include officials and advocates outside the Justice Department.
The senators’ proposal reflects a longstanding priority of the International Association of Chiefs of Police, and is also backed by the Fraternal Order of Police, which supported Trump’s election. Officials of a range of other organizations immediately backed the idea, including the Leadership Conference on Civil and Human Rights, the NAACP, the National Urban League, National Sheriffs’ Association, International CURE (Citizens United for the Rehabilitation of Errants), and the Major County Sheriffs of America.
It has already attracted support from an ideological mix of senators, ranging from Republicans Marco Rubio of Florida and Orrin Hatch of Utah on the right to Democrats Bill Nelson of Florida, Kirsten Gillibrand of New York, and Kamala Harris of California on the left.
Wednesday, March 08, 2017
AG Sesssions issue memo directing US Attorneys focus on "drivers of violent crime" ... and indicating change to Holder's charging memos forthcoming
As reported via this official DOJ Press release, "Attorney General Jeff Sessions today directed federal prosecutors nationwide to engage in a focused effort to investigate, prosecute and deter the most violent offenders." Here is more from the release:
This builds on the announcement last week of the creation of the U.S. Department of Justice Task Force on Crime Reduction and Public Safety, which is central to the Attorney General’s commitment to combatting illegal immigration and violent crime, such as drug trafficking, gang violence and gun crimes, and to restoring public safety to all of the nation’s communities.
“Turning back our nation’s recent rise in violent crime is a top priority for the Department of Justice, and it requires decisive action from our federal prosecutors,” said Attorney General Sessions. “I’m urging each of them to continue working closely with their counterparts at all levels, and to use every tool we have to put violent offenders behind bars and keep our citizens safe.”
In a memo to federal prosecutors in the department’s 94 United States Attorney’s Offices, the Attorney General made clear that prosecuting violent criminals is a high priority and prosecutors should work closely with their federal, state, local and tribal law enforcement partners to target the most violent offenders in each district. Working together, law enforcement at every level should determine which venue – federal or state – would best get those identified immediately off our streets and punished appropriately for their crimes.
The memo states when federal prosecution is determined appropriate, federal prosecutors should ensure the individuals driving violent crime in their district are prosecuted using the tools at their disposal, which may include firearms offenses, including possession and straw purchasing offenses; possession of a firearm during and in relation to a violent crime or drug trafficking offense; Hobbs Act robbery; carjacking; violent crime in aid of racketeering; Racketeering Influenced and Corrupt Organizations Act; and drug offenses under the Controlled Substances Act, among others.
The memo is available at this link, and hard-core federal sentencing fans might be most intrigued by a line that appears at the end of the memo which states that "an updated memorandum for charging in all criminal cases will be forthcoming." That line suggests to me that pretty soon we will be seeing a formal new "Sessions Memo" that seeks to remove some of the "play in the joints" that former AG Eric Holder introduced through prior charging memorandum issued back in 2010 and 2013.
"Public Crime Registries Rarely Work, So Why Do They Continue to Grow?"
The question in the title of this post is the headline of this new Pacific Standard commentary authored by Emmanuel Felton. Here are excerpts:
[T]he idea of making information about offenders public has proven immensely popular. A 2005 Gallup poll showed that virtually all Americans — 94 percent — supported public sex offender registries and about two-thirds of those surveyed said they weren’t even somewhat concerned about how the public nature of registries affected those forced to sign up. With the Internet providing states with a cheap and easy way to get information into the hands of citizens, lawmakers soon found registries to be a relatively inexpensive solution to complex problems, says Amanda Agan, a Rutgers University professor who studies the economics of crime.
“These policies were well intentioned and they sounded like they might work. And on top of that they are relatively low cost,” Agan says. “But now we have all of this evidence that they just don’t work, but the problem is it’s very difficult to start pulling back. There would be a public outcry.”
The Murderer and Violent Offender Against Youth Registry started off as a fix for a legislature-made problem. In the mid-1990s, at the height of the tough-on-crime movement, Illinois added a host of offenses against children to their sex offender rolls, including first-degree murder, kidnapping, and child abduction, regardless of whether the crime involved a sex offense. Responding to concerns that it was unfair to include those offenders — take, for example, the case of a 13-year-old girl who stabbed her older brother with a kitchen knife after a fight over a shower cap — on the sex crime list, the state created this new violent offender registry. That created a registry for people convicted of a set of violent crimes against children. That list was later expanded to include murderers like Armstrong, whose crimes didn’t involve children, when, in 2011, state lawmakers passed Andrea’s Law, named for a college student strangled to death by her ex-boyfriend.
While Illinois lawmakers may be the most zealous employers of public registries — the state also maintains an online list of those convicted of making methamphetamine — the state is far from alone. Oklahoma also has a violent crime registry similar to Illinois’ and Kansas has a meth registry like Illinois’. Indiana, Kansas, and Montana still have combined sex and violent offender registries. Florida, on the other hand, makes folks convicted of three violent felonies sign up for a public registry. Tennessee also had a meth registry, before expanding it into a much more encompassing drug offender registry. And among the more original uses, Tennessee also has an animal abuser registry and Utah recently launched a registry for people convicted of certain white-collar crimes.
While there isn’t much research about the effectiveness of newer crime registries like those for murderers, there has been a lot of research into sex offender registries. Jill Levenson, a professor of social work at Barry University, says that research has been conclusive: those registries simply haven’t reduced sex crimes. She says that’s because they obscure the real threat to children, being abused by someone close to them, and greatly overemphasize the incredibly rare occurrences of children being abducted by people they don’t know.
“Stranger abductions of children happen just 115 times a year in this country,” says Levenson, who studies the effectiveness of policies that aim to reduce sexual violence. “While there’s no question that that’s 115 too many, there are 80 million children in this country. The problem with sex offender registries is they obscure the real threat — over 90 percent of children who are sexually abused are abused by people they know.”
St. Louis University Law School professor Molly Wilson says the concept of cognitive availability helps explain why threats like stranger danger remain so prominent in the making of our criminal codes. Cognitive availability describes a logical fallacy where decision-makers tend to overemphasize the importance of examples that quickly come to mind. That leads people to overestimate threats with really salacious details, Wilson says. “When you ask someone to estimate how serious a threat is, they search their minds,” says Wilson, who also holds a doctorate degree in psychology. “What they come to first is what is cognitively available, and that’s these really vivid examples that from an empirical standpoint are pretty rare. The human mind is designed to think of the sensory cases that imprint details — an image of the bicycle that a girl was riding sticking out of the bushes.”
Cognitive availability is a particularly compelling explanation for why many registries quickly expanded to murderers despite the fact that just 1 percent of murderers kill again. Similarly, just 6 percent of people convicted of rape or sexual assault repeated in the five-year follow-up period covered by a recent Bureau of Justice Statistics report. That’s compared to a 13 percent same-crime recidivism rate for robbers and a 34 percent rate for those convicted of assault. Despite repeated attempts by researchers to link lower sex offender recidivism rates with the passage of registration laws, there’s been no conclusive evidence supporting that hypothesis. In fact, there is some evidence that these laws actually increase recidivism as they effectively act as anti-re-entry programs.
Arthur Lurigio, a clinical psychologist and a professor of criminal justice and psychology at Loyola University Chicago, says the rise of registries underscores a central failure of America’s criminal justice system: “ We are failing to recognize the possibility of human change.”...
Wayne Logan — whose 2009 book, Knowledge as Power: Criminal Registration and Community Notification Laws in America, charts the rise of crime registries over 75 years — says there has been some relaxing of registration rules for sex offenders in recent years. He points to California’s public registry, which no longer includes those caught soliciting prostitutes and so-called Romeo and Juliet offenses—those are the cases where there’s consensual sex between teenagers, one of whom is a minor. “You see some unwinding,” says Logan, a professor of law at Florida State University. “But the overall trend is expansion. It’s a very flexible technology, it can work for arsonists or meth makers or white-collar criminals. It’s social control on the cheap.”
March 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)
Tuesday, March 07, 2017
"Booker Disparity and Data-Driven Sentencing"
The title of this post is the title of this notable new article now available via SSRN authored by Joshua Divine. Here is the abstract:
Sentencing disparity among similar offenders has increased at a disconcerting rate over the last decade. Some judges issue sentences twice as harsh as peer judges, meaning that a defendant’s sentence substantially depends on which judge is randomly assigned to a case. The old mandatory sentencing guidelines repressed disparity but only by causing unwarranted uniformity. The advisory guidelines swing the pendulum toward the opposite extreme, and this problem promises to grow worse as the lingering effect of the old regime continues to decrease.
This Article is the first to propose a system — data-driven appellate review — that curbs sentencing disparity without re-introducing unwarranted uniformity. Congress should establish a rebuttable presumption that outlier sentences among similar offenders are unreasonable. The U.S. Sentencing Commission collects data on over 70,000 criminal cases annually. This data provides the tool for defining categories of similar offenders. Culling outlier sentences through data-driven appellate review would increase judicial awareness of sentences issued by peer judges and would therefore curb the increase in inter-judge disparity without resorting to unwarranted uniformity.
March 7, 2017 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Reviewing the ugly backstory of SCOTUS dicta on sex offender recidivism
Today's New York Times has this intriguing new Sidebar article by SCOTUS reporter Adam Liptak under the headline "Did the Supreme Court Base a Ruling on a Myth?". Here are excerpts:
Last week at the Supreme Court, a lawyer made what seemed like an unremarkable point about registered sex offenders. “This court has recognized that they have a high rate of recidivism and are very likely to do this again,” said the lawyer, Robert C. Montgomery, who was defending a North Carolina statute that bars sex offenders from using Facebook, Twitter and other social media services.
The Supreme Court has indeed said the risk that sex offenders will commit new crimes is “frightening and high.” That phrase, in a 2003 decision upholding Alaska’s sex offender registration law, has been exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.
But there is vanishingly little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates. The story behind the notion, it turns out, starts with a throwaway line in a glossy magazine.
Justice Anthony M. Kennedy’s majority opinion in the 2003 case, Smith v. Doe, cited one of his own earlier opinions for support, and that opinion did include a startling statistic. “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” Justice Kennedy wrote in the earlier case, McKune v. Lile.
He cited what seemed to be a good source for the statistic: “A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender,” published in 1988 by the Justice Department. The guide, a compendium of papers from outside experts, is 231 pages long, and it contains lots of statistics on sex offender recidivism rates. Many of them were in the single digits, some a little higher. Only one source claimed an 80 percent rate, and the guide itself said that number might be exaggerated.
The source of the 80 percent figure was a 1986 article in Psychology Today, a magazine written for a general audience. The article was about a counseling program run by the authors, and they made a statement that could be good for business. “Most untreated sex offenders released from prison go on to commit more offenses — indeed, as many as 80 percent do,” the article said, without evidence or elaboration.
That’s it. The basis for much of American jurisprudence and legislation about sex offenders was rooted in an offhand and unsupported statement in a mass-market magazine, not a peer-reviewed journal....
A 2014 Justice Department report found ... that sex offenders generally have low overall recidivism rates for crimes. But they are more likely to commit additional sex offenses than other criminals. In the three years after release from prison, 1.3 percent of people convicted of other kinds of crimes were arrested for sex offenses, compared to 5.3 percent of sex offenders. Those findings are broadly consistent with seven reports in various states, which found that people convicted of sex crimes committed new sex offenses at rates of 1.7 percent to 5.7 percent in time periods ranging from three to 10 years....
Lower courts generally accept what the Supreme Court says. That is true not only about the law but also about facts subject to independent verification. Last year, though, the federal appeals court in Cincinnati gently suggested that the Supreme Court had taken a wrong turn in its 2003 decision in Smith v. Doe. Judge Alice M. Batchelder, writing for a unanimous three-judge panel, described “the significant doubt cast by recent empirical studies on the pronouncement in Smith that ‘the risk of recidivism posed by sex offenders is “frightening and high.’” The appeals court struck down a particularly strict Michigan sex-offender law as a violation of the Constitution’s ex post facto clause, saying it retroactively imposed punishment on people who had committed offenses before the law was enacted.
The state has asked the Supreme Court to consider the case, Does v. Snyder, No. 16-768. The first paragraph of its petition says that the risk of recidivism “remains ‘frightening and high.’” The constitutional question in the case is interesting and substantial. And hearing the case would allow the court to consider more fully its casual assertion that sex offenders are especially dangerous.
Monday, March 06, 2017
"Rationing Criminal Justice"
The title of this post is the title of this notable new article now available via SSRN and authored by Richard Bierschbach and Stephanos Bibas. Here is the abstract:
Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects.
Treating punishment like other public-law problems of regulation suggests various regulatory tools as rough solutions, such as cost-benefit analysis, devolution, pricing, and caps. As these tools highlight, scarcity often works not as a bug but as a design feature. Criminal justice’s distinctive intangible values, politics, distributional concerns, and localism complicate the picture. But more direct engagement with how best to ration criminal justice could help to end the correctional free lunch at the all-you-can-eat buffet and put the bloated American carceral state on the diet it needs.
Could and will SCOTUS Pena-Rodriguez decision create new ways attack death sentences (and even other jury sentencing outcomes)?
The question in the title of this post was the first idea that jumped into my sentencing-addled mind as I was (too) quickly reviewing the Supreme Court's Sixth Amendment work today in Pena-Rodriguez v. Colorado (basics here, full opinion here). Critically, the Pena-Rodriguez decision concerns a jury's deliberation about guily, and the opinion keeps referencing a juror's "vote to convict." But, in some cases in some states, jurors also have a role in sentencing, and this is most common and most consequential in the context of capital cases. And there is lots of dicta in Pena-Rodriguez that surely could, and I would guess often will, be stressed by capital defendants trying to throw shade on a jury's capital sentencing decision-making. Consider, as just one example, these passages:
[R]acial bias, a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice. This Court’s decisions demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy....
A constitutional rule that racial bias in the justice system must be addressed — including, in some instances, after the verdict has been entered — is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.
As those who follow debates over the death penalty know well, many who advocate abolition often assert that capital punishment's administration through often seemingly disparate jury verdicts reveals a certain kind of "racial bias [as] a familiar and recurring evil" that contributes to "a systemic loss of confidence in jury verdicts." (Consider, for example, this page at the Death Penalty Information Center spotlighting racial patterns in death penalty administration.) In light of those views, as well as the obligation and zeal of defense attorneys to raise every non-frivolous argument to contest a death sentence, I have reason to think the capital defense bar could, should and will be making much of today's SCOTUS work in Pena-Rodriguez.
Formalism (and floodgate/functionality fears?) prevail over functional analysis in Beckles
I was involved in preparing an amicus brief in the Beckles case decided by the Supreme Court this morning (basics here, full opinion here), and that brief argued (unsuccessfully) that the advisory federal sentencing guidelines should be subject to vagueness challenges. The argument was, in its essence, a functional one highlighting the significant impact that guideline calculations still have on sentencing outcomes even though they are advisory. Justice Sotomayor's separate opinion in Beckles, though concurring on narrow grounds, wholly embraced this functional argument to make the case that the guidelines should be subject to vagueness challenges. Here are some passages from her extended decision that capture her functional perspective (with cites omitted, but key emphasis from original):
In most cases, it is the range set by the Guidelines, not the minimum or maximum term of imprisonment set by statute, that specifies the number of years a defendant will spend in prison. District courts impose a sentence within the Guidelines (or below the Guidelines based on a Government motion) over 80% of the time. And when Guidelines ranges change — because the Guidelines themselves change, or because the court is informed of an error it made in applying them — sentences change, too. It is therefore no exaggeration to say that the Guidelines are, in a real sense, the basis for the sentence imposed by the district court....
As set out above, although the Guidelines do not bind a district court as a formal matter, as a functional matter they anchor both the district court’s discretion and the appellate review process....
Absent that Guideline, Beckles would have been sentenced to between 33 and 98 fewer months in prison. The District Court admitted as much, explaining that had the Guideline not applied, she “would not have imprisoned Beckles to 360 months” in prison. Years of Beckles’ life thus turned solely on whether the career-offender Guideline applied. There is no meaningful way in which the Guideline exerted less effect on Beckles’ sentence than did the statute setting his minimum and maximum terms of imprisonment; indeed, it was the Guidelines, not just the statute, that fixed Beckles’ sentence in every meaningful way. Nothing of substance, in other words, distinguishes the Guidelines from the kind of laws we held susceptible to vagueness challenges in Johnson; both law and Guideline alike operate to extend the time a person spends in prison. The Due Process Clause should apply equally to each.
Notably, as Justice Sotomayor highlights in various ways in her opinion, this kind of functional concern with the continued importance of advisory guideline calculations drove the majority opinions in prior recent cases like Peugh dealing with application of the Ex Post Facto clause and Molina-Martinez dealing with plain error review. But this time around, a more formalistic approach carried the day.
As my post title here suggests, I think the formalistic approach to application of the vagueness doctrine at sentencing prevail because a number of key Justices, particularly perhaps the Chief and Justice Kennedy, may have been especially concerned about what a "vagueness at sentencing" doctrine could end up looking like and how often it might arise. Notably, Justice Kennedy authored an intriguing little concurrence in Beckles that suggests he is concerned about arbitrary sentencing, but was here even more concerned about application of traditional vagueness doctrine to sentencing. Here is what Justice Kennedy had to say:
As sentencing laws and standards continue to evolve, cases may arise in which the formulation of a sentencing provision leads to a sentence, or a pattern of sentencing, challenged as so arbitrary that it implicates constitutional concerns. In that instance, a litigant might use the word vague in a general sense — that is to say, imprecise or unclear — in trying to establish that the sentencing decision was flawed. That something is vague as a general matter, however, does not necessarily mean that it is vague within the well-established legal meaning of that term. And it seems most unlikely that the definitional structure used to explain vagueness in the context of fair warning to a transgressor, or of preventing arbitrary enforcement, is, by automatic transference, applicable to the subject of sentencing where judicial discretion is involved as distinct from a statutory command. See Johnson v. United States, 576 U. S. ___ (2015).
The existing principles for defining vagueness cannot be transported uncritically to the realm of judicial discretion in sentencing. Some other explication of the constitutional limitations likely would be required.
Though I find intriguing the suggestion by Justice Kennedy that there could and sould be "some other explication of the constitutional limitations" on the realm of judicial discretion in sentencing, the ruling in Beckles may itself ensure that such an explication never gets developed in the context of the Due Process Clause. (Whether Justice Kennedy and others might explicate such limits in non-capital sentencing as they have in capital sentencing through the Eighth Amendment might still be ripe with possibilities.)
SCOTUS rules in Pena-Rodriguez that Sixth Amendment creates exception to jury impeachment rule when racial animus revealed
A split Supreme Court weighed in on the intersection of racial bias and jury decision-making via a notable Sixth Amendment ruling in Pena-Rodriguez v. Colorado, No. 15–606 (S. Ct. March 6, 2017) (available here). Here is how Justice Kennedy's opinion for the Court gets started and concludes:
The jury is a central foundation of our justice system and our democracy. Whatever its imperfections in a particular case, the jury is a necessary check on governmental power. The jury, over the centuries, has been an inspired, trusted, and effective instrument for resolving factual disputes and determining ultimate questions of guilt or innocence in criminal cases. Over the long course its judgments find acceptance in the community, an acceptance essential to respect for the rule of law. The jury is a tangible implementation of the principle that the law comes from the people.
In the era of our Nation’s founding, the right to a jury trial already had existed and evolved for centuries, through and alongside the common law. The jury was considered a fundamental safeguard of individual liberty. See The Federalist No. 83, p. 451 (B. Warner ed. 1818) (A. Hamilton). The right to a jury trial in criminal cases was part of the Constitution as first drawn, and it was restated in the Sixth Amendment. Art. III, §2, cl. 3; Amdt. 6. By operation of the Fourteenth Amendment, it is applicable to the States. Duncan v. Louisiana, 391 U. S. 145, 149–150 (1968).
Like all human institutions, the jury system has its flaws, yet experience shows that fair and impartial verdicts can be reached if the jury follows the court’s instructions and undertakes deliberations that are honest, candid, robust, and based on common sense. A general rule has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations. This principle, itself centuries old, is often referred to as the no-impeachment rule. The instant case presents the question whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict....
The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history. The Court now seeks to strengthen the broader principle that society can and must move forward by achieving the thoughtful, rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution.
The start of the dissenting opinion by Justice Thomas explains his concerns and the core concerns of the other dissenters (which are expressed via an opinion by Justice Alito joined by the Chief and Justice Thomas):
The Court today holds that the Sixth Amendment requires the States to provide a criminal defendant the opportunity to impeach a jury’s guilty verdict with juror testimony about a juror’s alleged racial bias, notwithstanding a state procedural rule forbidding such testimony. I agree with JUSTICE ALITO that the Court’s decision is incompatible with the text of the Amendment it purports to interpret and with our precedents. I write separately to explain that the Court’s holding also cannot be squared with the original understanding of the Sixth or Fourteenth Amendments.
SCOTUS rules in Beckles that federal advisory guidelines are not subject to Due Process vagueness challenges
The Supreme Court this morning issued a big opinion concerning the operation of and challenges to the federal sentencing guidelines in Beckles v. United States, No. No. 15–8544 (S. Ct. March 6, 2017) (available here). Here is how the opinion authored by Justice Thomas gets started:
At the time of petitioner’s sentencing, the advisory Sentencing Guidelines included a residual clause defining a “crime of violence” as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG). This Court held in Johnson v. United States, 576 U. S. ___ (2015), that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §924(e)(2)(B), was unconstitutionally vague. Petitioner contends that the Guidelines’ residual clause is also void for vagueness. Because we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner’s argument.
After the oral argument tone in this case, I am not surprised to see this result. But I expect I may have more to say about the particulars of this Beckles ruling in the coming hours and days. To begin, I think the sentiments in the closing section of the opinion of the Court best accounts for the Beckles outcome:
In addition to directing sentencing courts to consider the Guidelines, see §3553(a)(4)(A), Congress has directed them to consider a number of other factors in exercising their sentencing discretion, see §§3553(a)(1)–(3), (5)–(7). The Government concedes that “American judges have long made th[e] sorts of judgments” called for by the §3553(a) factors “in indeterminate-sentencing schemes, and this Court has never understood such discretionary determinations to raise vagueness concerns.” Brief for United States 42. Because the §3553 factors — like the Guidelines — do not mandate any specific sentences, but rather guide the exercise of a district court’s discretion within the applicable statutory range, our holding today casts no doubt on their validity.
Holding that the Guidelines are subject to vagueness challenges under the Due Process Clause, however, would cast serious doubt on their validity. Many of these other factors appear at least as unclear as §4B1.2(a)’s residual clause. For example, courts must assess “the need for the sentence imposed” to achieve certain goals — such as to “reflect the seriousness of the offense,” “promote respect for the law,” “provide just punishment for the offense,” “afford adequate deterrence to criminal conduct,” and “provide the defendant with needed educational or vocational training . . . in the most effective manner.” §3553(a)(2). If petitioner were correct that §4B1.2(a)’s residual clause were subject to a vagueness challenge, we would be hard pressed to find these factors sufficiently definite to provide adequate notice and prevent arbitrary enforcement.
The Government tries to have it both ways, arguing that the individualized sentencing required by the other §3553(a) factors is different in kind from that required by the Guidelines. “An inscrutably vague advisory guideline,” it contends, “injects arbitrariness into the sentencing process that is not found in the exercise of unguided discretion in a traditional sentencing system.” Reply Brief for United States 10–11. But it is far from obvious that the residual clause implicates the twin concerns of vagueness any more than the statutory command that sentencing courts impose a sentence tailored, for example, “to promote respect for the law.” §3553(a)(2)(A). And neither the Guidelines nor the other §3553 factors implicate those concerns more than the absence of any guidance at all, which the Government concedes is constitutional.
The Government also suggests that the Guidelines are not like the other §3553(a) factors “because they require a court to decide whether the facts of the case satisfy a legal standard in order to derive a specific numerical range.” Id., at 22. But that does not distinguish the other sentencing factors, which require courts to do the same thing. Section 3553(a) states that district courts “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [§3553(a)(2)].” In fact, the Guidelines generally offer more concrete advice in imposing a particular sentence and make it easier to review whether a court has abused its substantial discretion. There is no sound reason to conclude that the Guidelines — but not §3553(a)’s other sentencing factors — are amenable to vagueness review.
No grants, but latest SCOTUS order list still has lots of intrigue for criminal justice fans (especially those concerned with risk-assessment sentencing)
The Supreme Court this morning released this order list, and it is extended because there is a summary per curiam GVR in a Nevada capital case (available here) and a trio of extended statements concerning the denial of cert (two of which were authored by Justice Thomas and one of which comes from Justice Sotomayor). I would comment at length about these matters, but SCOTUS has provided bigger sentencing fish to fry by also deciding the Beckles vagueness case today (discussed here).
For hard-core sentencing fans, perhaps the most intriguing aspect of the order list is this item:
16-6387 LOOMIS, ERIC L. V. WISCONSIN
The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States.
As some may recall from some prior postings, Loomis concerns a due process challenge to the use of risk-assessment instruments at sentencing. It will be very interesting to see what the Trump Administration decides to say in this case and to see if SCOTUS ultimately takes up this timley and consequential issue.
Prior related posts on Loomis case:
- Wisconsin appeals court urges state's top court to review use of risk-assessment software at sentencing
- Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing
- Wisconsin Supreme Court rejects due process challenge to use of risk-assessment instrument at sentencing
Sunday, March 05, 2017
Deep dive into litigation over Chicago “Stash House Stings”
Because the President of the United States has often expressed concerning about crime in Chicago and has tweeted about sending in the feds, I hope the Prez and his advisers find time to check out this recent lengthy Chicago Tribune article about some of the work of the feds in this city in the recent past. The article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," merits a full read, and here is an extended taste:
For four years, Mayfield had been struggling to turn his life around after more than a decade in prison. To escape the street life, he moved to Naperville with his fiancee's family and managed to find a full-time job at a suburban electronics facility that paid 12 bucks an hour. It was there that a co-worker lured him into the robbery after weeks of effort, promising a big score.
Now, inside the police vehicle, the sounds of flash-bang grenades still ringing in his ears, Mayfield started to piece it all together. There was no stash house, no cartel drugs or associates to rob. It was a crime dreamed up by federal authorities and carried out with the help of Mayfield's co-worker to reel him in when he was at his most vulnerable.
Eight years later, Mayfield, 48, and dozens of others are at the center of a brewing legal battle in Chicago's federal court over whether the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives' signature sting operation used racial bias in finding its many targets.
A team of lawyers led by the University of Chicago Law School is seeking to dismiss charges against more than 40 defendants in Chicago. The undercover probes, a staple of the ATF since the mid-1990s, have ensnared hundreds of defendants across the country. A recently unsealed study by a nationally renowned expert concluded that ATF showed a clear pattern of racial bias in picking its targets for the drug stings. The disparity between minority and white defendants was so large that there was "a zero percent likelihood" it happened by chance, the study found.
The vast majority of those swept up in the stings in Chicago were minorities, and a close examination of the criminal backgrounds of some of those targeted raises questions about whether they were truly the most dangerous gun offenders whom ATF was aiming to remove from the street.
Some had trouble even coming up with guns to do the job — including one crew that after months of preparation managed to find only one World War I-era pistol with a broken handle that could barely fire a round. Others had no history of carrying out high-risk armed robberies — a key provision in the ATF playbook designed to make sure targets were legitimate, defense lawyers argued in recent court filings....
Earlier this month, federal prosecutors filed a lengthy motion vehemently disputing that minorities were unfairly targeted in the stash house cases, saying the expert report filed by the defense was "riddled with false assumptions that were designed to manufacture a racial disparity where none exists." The dispute sets up what could be an unprecedented hearing at the Dirksen U.S. Courthouse in the coming months involving a panel of district judges hearing the multiple criminal cases at once.
"It's almost like a criminal class action," said Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School, which represents most of the defendants in the dozen cases they are seeking to be dismissed. "Judges are seeing this as a coordinated litigation. It's a very unusual situation."...
According to the ATF, stash house stings are a key part of the agency's national effort to target people who "show a propensity of doing harm to the public through violent behavior." Launched in Miami during the cocaine-war days of the early 1990s, the stings have been honed over the years and are run by experienced agents who use a tightly controlled playbook.
They typically begin when an informant provides the ATF information about a potential target who has expressed interest in taking part in a robbery. The informant then introduces the target to an undercover agent who poses as a disgruntled courier for a drug cartel and offers an opportunity to steal large quantities of drugs from a stash house guarded by men with guns.
In a series of conversations captured on undercover wire, the target is told if he is interested he must assemble an armed team to commit the robbery. The target and his crew are arrested after they show up on the day of the supposed crime. "At the time of arrest, the home invasion defendants are poised, at any moment, to invade a stash house, steal kilograms of cocaine guarded by armed cartel members, and in the process, kill or be killed," prosecutors wrote in their recent court filing.
In order to avoid arguments of entrapment in court, the stings are supposed to target only established robbery groups. ATF criteria also require that at least two of the participants have violent backgrounds and that all must be criminally active at the time the investigation is launched. Not only were the operations a boon for the ATF but the resulting prosecutions also netted eye-popping sentences — sometimes up to life in prison — in part because defendants were criminally liable for the amount of imaginary drugs they believed they were stealing. It didn't matter that the robbery was fake or that no drugs actually existed....
The lengthy sentences were just one pattern that raised red flags for the criminal defense bar. In case after case, the ATF stings seemed to be targeting only minorities. In early 2013, a handful of private attorneys and assistant federal defenders, all veterans at the Dirksen U.S. Courthouse, were so troubled by a stash house case they were defending that they asked the U.S. attorney's office for a complete list of all the defendants in similar cases sorted by race. Prosecutors rebuffed this admittedly unorthodox request. "ATF does not maintain statistics on the nature in question at either the local or national level," Assistant U.S. Attorney Philip Fluhr wrote in response, court records show.
The defense lawyers then asked the judge overseeing the case to order prosecutors to turn over detailed information on how the stash house stings are run and the race of the defendants who had been charged so far. They included their own research showing more minorities were targeted. Prosecutors strenuously objected. But a few months later, U.S. District Chief Judge Ruben Castillo allowed the discovery to go forward. "History has shown a continuing difficult intersection between the issue of race and the enforcement of our nation's criminal laws," wrote Castillo, concluding that the defense team had "made a strong showing of potential bias."
Similar motions in other stash house cases soon followed, but the effort to prove racial bias was being made case-by-case with no coordination. Then in 2014, the University of Chicago's Federal Criminal Justice Clinic agreed to focus all its efforts on the 12 stash house cases and their 43 defendants. This allowed the defense attorneys to address the alleged racial bias in a coordinated effort, a critical undertaking given the government's massive resources, the attorneys said....
As the movement to fight the stash house cases gathered steam among defense attorneys, the judiciary also weighed in with some key decisions. In November 2014, the full 7th Circuit U.S. Court of Appeals granted Mayfield a new trial in a rare decision that concluded Potts had "targeted Mayfield at a moment of acute financial need and against a backdrop of prolonged difficulty finding permanent, family-supporting work."
In a 2012 dissenting opinion as the case was winding through the court, appellate Judge Richard Posner had put an even finer point on it, referring to the stings as a "disreputable tactic" that used government informants to target people at a vulnerable time in their lives. Meanwhile, another ruling in July 2015 by the appellate court in Chicago resulted in the government turning over more data on the stash house stings sought by the defense. The ruling allowed the defendants to move ahead with what is believed to be the most thorough analysis of the stings anywhere in the country....
The debate is now potentially headed for a court hearing involving all defendants. The outcome could set precedent for judges in other states. "Courts tend to give law enforcement a lot of leeway," said University of California-Irvine law professor Katharine Tinto, a criminal law expert who has written extensively about the stash house stings. "… The fact that an expert is saying a federal law enforcement agency is discriminating on the basis of race is something everybody should be watching."
Friday, March 03, 2017
Making the case for fixing private prisons in the Trump era
Lauren-Brooke Eisen has this notable new commentary in Fortune headlined "How President Trump and Jeff Sessions Can Fix America’s Private Prisons." Here are excerpts:
Last week, Attorney General Jeff Sessions ... issued a memo reversing the Obama administration’s decision to phase out its use of private prisons at the federal level. This memo followed the release of a U.S. Justice Department report in August concluding that privately-operated prisons experienced more safety and security incidents than facilities operated by the Federal Bureau of Prisons did.
Since Sessions appears determined to move forward regardless, now is the right time to evaluate how to improve upon how the Justice Department contracts with private corporations to run some of its prisons. With a businessman in charge of the White House, this provides an opportunity to change private prisons for the better. A good first step would be to restructure contracts to make private facilities more accountable, effective, and strategic in their use of resources....
Although the new attorney general’s shift in policy only affects a little more than 21,000 inmates out of 126,300 inmates housed in state and federally contracted private prison facilities across the country, it points to the Trump administration’s likely reliance on the private prison industry over the next few years. Currently, the federal government primarily uses private prisons to house non-citizens convicted of crimes, and most face deportation upon release. The president’s recent executive actions cracking down on unauthorized immigration will likely swell the private prison rolls even more, further expanding the industry....
With an expansion of for-profit prisons on the horizon, it is more important than ever that the government restructure contracts with the private prison industry to boost performance and change incentives. Conducting field research for my upcoming book, I found that it is rare for contracts with private prison companies to demand fresh thinking, recidivism reduction, and outcomes that outperform the public sector. Most contracts require the private operator to simply replicate the government prison system’s procedures.
Rather than repeat this approach, both the federal government and state governments should write contracts to ensure that economic incentives focus on reducing recidivism and improving outcomes for the nation’s inmates, not just warehousing as many people as possible....
In 2013, former Republican Gov. Tom Corbett’s administration announced it would cancel all the state’s Department of Corrections contracts with private community corrections companies and rebid them on a performance basis. Providers were then evaluated on and paid according to their success at reducing the recidivism levels of those who had just been released from prison. The state could cancel a contract if the recidivism rate increased over two consecutive year-long periods. After these contracts were implemented, the recidivism rate for private facilities fell 11.3 percent in just the first year.
Restructuring contracts around the nation’s public policy goals would ensure that private operators provide more educational programming, job training classes, and work with their inmates to ensure they are set up for optimal success once they are eventually released. Providing incentives to private firms to exceed baselines — such as improved recidivism rates — is an effective carrot, versus creating penalties for basic contract breaches like failing to receive basic accreditation or meet minimum standards.
Reimagining how private prisons operate and are held accountable does not need to be an academic exercise. Building the proper incentives into their contracts has the power to move the for-profit prison industry away from focusing on cost-cutting and filling its beds to make an extra dollar. Imagine a world where private prison operators earned bonuses if their inmates received top-tier educational programming and vocational skills classes instead of guaranteed bed occupancies. It’s possible that private prisons could begin marketing themselves to directors of corrections as leaders in recidivism reduction and reentry preparation.
Private prisons are here to stay under the new administration. Let’s at least make them work better.
Thursday, March 02, 2017
"The externalities problem is acute in criminal justice for two reasons."
The title of this post is a line from this interesting new essay by Richard Bierschbach, over at online publication Regblog produced by the University of Pennsylvania Law School. This essay is actually part of a fifteen(!)-part series on "Regulating Police Use of Force," but Richard makes some sentencing-specific points in his essay. Here are excerpts, with links from the original:
The externalities problem is acute in criminal justice for two reasons. First, we think of criminal justice as individual justice. Actors thus tend to view each case as an isolated transaction to the exclusion of broader, long-term, and aggregate effects. Second, criminal justice, especially American criminal justice, is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. No one player has the responsibility, incentives, or information to take systemic harms into account. And given the politics of criminal justice, democratic processes do little to correct this dynamic.
Police and other law enforcement systematically overuse force in part because few mechanisms require them to consider the full social costs of doing so. The costs of arrests, for instance, are substantial: arrests are frightening and humiliating, use valuable resources, and burden arrestees with lost income, arrest records, and other harms. Yet few of these costs fall on the police. So, too, for other coercive measures. Prosecutors and judges do not shoulder the full costs of pretrial detention, such as overcrowded jails, difficulties in mounting a defense, and personal and family trauma. Similarly, states pay for prisons, but local prosecutors’ decisions fill them. That “correctional free lunch” gives prosecutors little incentive to use prison judiciously, which helps explain why some counties dramatically overconsume it....
Cost-benefit analysis for sentencing and arrests. The U.S. Environmental Protection Agency, U.S. Securities and Exchange Commission, and other agencies have long had to defend their regulations in cost-justified terms. Why not hold sentencing and arrest guidelines to the same standard? The great virtue of cost-benefit analysis is that, if done rigorously, honestly, and transparently, it can surface and force consideration of all harms and gains—short- and long-term, concentrated and diffuse, and monetary and non-monetary (such as dignitary and distributive harms)—that a given policy option implicates. It is not hard to imagine how some draconian provisions of the federal sentencing guidelines or New York City’s stop-and-frisk policies might have come out differently, and wrought less social damage, if policymakers had subjected them to methodical cost-benefit testing that was open to robust public scrutiny and debate.
Such procedures help policymakers confront tough tradeoffs and encourage them to make more welfare enhancing decisions. As experience in states like Washington and Minnesota has shown, cost-benefit and other impact assessment procedures also provide politicians with a degree of political cover when making criminal justice policies. The broad consideration of costs also acts as a proxy for values and voices that get little traction in state legislative halls, helping to make criminal justice policies more representative of the entire population they serve....
Capping (and trading?) prison beds. Related to pricing are caps, which can also bring incentives back in line. In a number of contexts, such as arrests, caps might not be appropriate. But in other contexts, like prison, they could make sense. Just as a capping scheme limits the amount of clean air a coal plant can use in generating profits, so too could it limit the number of prison beds that local prosecutors can use in generating personal, political, and social gains.
A trio of criminal justice professors, Cheryl Jonson, John Eck, and Francis Cullen, have proposed how it might work. States could set a cap on the number of people who could be sentenced to prison each year. They could then allocate prison beds to each county or locality based on some metric — population size, violent crime rates, or something else. Localities could use those beds however they pleased, but once they hit their cap, they would have to pay the state for further imprisonments. The cap could be hard-and-fast, or it could be coupled with a trading system under which counties that do not use all of their beds could sell them to other counties, sell them back to the state, or roll them over for later use. Either way, the system would enhance accountability for criminal justice dollars and encourage cautious use of prison in ways the “correctional free lunch” does not.
Now, these sketches are just that. As University of Pennsylvania Law School Professor Stephanos Bibas and I discuss in a forthcoming article, serious issues would exist with each of these and related strategies. Even so, in states and localities across the country, variations on these themes — like cost-benefit analysis of sanctions in Washington, California’s Public Safety Realignment, or sentencing cost disclosures in Missouri — are increasingly appearing as policymakers confront the enormous toll of the carceral state. In this era of unprecedented openness to criminal justice experimentation, the time is ripe to move beyond our old transactional, fragmented, business-as-usual approach to criminal justice, and to see it for what it largely is: a morally laden and complex regulatory system, subject to many of the same failures and limitations that afflict other areas of regulation. That means we must think hard not only about how to do justice, but also about how to structure justice to administer it in the most socially-regarding way possible.
Leading congressional Dems calling upon AG Sessions to resign, which means.....?
As reported in this new ABC News article, "Sen. Chuck Schumer today joined several Democratic lawmakers in calling for Attorney General Jeff Sessions' resignation amid reports that he met with the Russian ambassador to the United States on two occasions, despite denying during his confirmation hearing that he had made contact with Russian officials." Here is more:
"The information reported last night makes it clear beyond the shadow of a doubt that Attorney General Sessions cannot possibly lead an investigation into Russian interference in our elections or come anywhere near it," the New York senator and minority leader said of revelations that Sessions had contact with the Russians last year.
He added: "There cannot be even the scintilla of doubt about the impartiality and fairness of the attorney general, the top law enforcement official of the land. After this, it's clear Attorney General Sessions does not meet that test. Because the Department of Justice should be above reproach, for the good of the country, Attorney General Sessions should resign.”
Schumer’s comments echoed those of House Minority Leader Nancy Pelosi Wednesday evening who said, "Jeff Sessions lied under oath during his confirmation hearing before the Senate. Under penalty of perjury, he told the Senate Judiciary Committee, 'I have been called a surrogate at a time or two in that campaign and I did not have communications with the Russians.’ We now know that statement is false."
For his part, Sessions said in a statement Wednesday night that, "I never met with any Russian officials to discuss issues of the campaign. I have no idea what this allegation is about. It is false."
Other Democratic lawmakers have called for Sessions to resign, while some say he should at least recuse himself from overseeing any investigation into the question of alleged ties between Trump officials and Russians during and after the 2016 election.
Rep. Tim Ryan, D-Ohio, and Rep. Elijah Cummings, D-Md., have called for his resignation, as has Sen. Elizabeth Warren, D-Mass., Sen. Kamala Harris, D-Calif., and Sen. Claire McCaskill, D-Mo. "It is inconceivable that even after Michael Flynn was fired for concealing his conversations with the Russians that Attorney General Sessions would keep his own conversations secret for several more weeks," said Cummings, who is the ranking Democrat on the House Committee on Oversight and Government Reform. "Attorney General Sessions should resign immediately."
According to a Justice Department official, Sessions' meetings with ambassadors were in his capacity as a senator on the Armed Services Committee and about relations between the two countries....
Many other lawmakers have stopped short of calling for resignation, but argued that the attorney general should recuse himself from leading Justice Department investigations over the alleged links between Russian officials and Trump officials, as well as Russia's purported involvement in influencing the 2016 election.
I am inclined to believe that AG Sessions and Prez Trump will resist these calls for the AG to resign over this latest Russian kerfuffle, but in all sorts of ways this development is disconcerting for the future work of the Department of Justice. Sessions seemed to me a controversial choice primarily because of his policy positions, and a whole lots of reputable folks were quick to assert that Sessions was a man of integrity who had the kind of values and character needed to be an effective Attorney General. This latest development would seem to weaken that claim and more broadly weaken Sessions' ability to be an effective AG.
UPDATE: The Attorney General has decided to recuse himself "from any matters arising from the campaigns for President of the United States." His full statement explaining that decision is available at this link. I suspect this will be more than good enough for Prez Trump and just good enough for most Republicans in Congress and not good enough for most Democrats in Congress.
Wednesday, March 01, 2017
Arkansas Gov signs proclamations that could lead to eight executions in less than two weeks in next month
There has so far been only four executions nationwide in 2017. The just concluded month of February had no executions, and this Death Penalty Information Center list of upcoming executions suggests that there are only two serious execution dates (both in Texas) for March. But this local article from Arkansas, headlined "Arkansas Governor schedules execution dates for 8 inmates," the Natural State could be poised for a record-setting April. Here are the details:
Arkansas’ governor on Monday set execution dates over a 10-day period in an attempt to resume the death penalty after a nearly 12-year hiatus, even though the state lacks one of three drugs needed to put the men to death. Gov. Asa Hutchinson signed proclamations scheduling double-executions on four days in April for the eight inmates. The quick schedule appears aimed at putting the inmates to death before another one of the state’s lethal injection drugs expire, and if carried out would mark the first time in nearly two decades a state has executed that many inmates in a month.
The move comes just days after the state’s attorney general told the governor the inmates had exhausted their appeals and there were no more legal obstacles to their executions. “This action is necessary to fulfill the requirement of the law, but it is also important to bring closure to the victims’ families who have lived with the court appeals and uncertainty for a very long time,” Hutchinson said in a statement.
The U.S. Supreme Court last week rejected the inmates’ request to review a state court ruling that upheld Arkansas’ lethal injection law. The state Supreme Court on Friday lifted the stay on its ruling, clearing the way for Arkansas Attorney General Leslie Rutledge to request the dates be set. Arkansas hasn’t executed an inmate since 2005 due to legal challenges and difficulties obtaining execution drugs.
The state’s supply of potassium chloride — one of three drugs used in lethal injections — expired in January. A prison system spokesman said Monday that the drug hasn’t been replaced, but Hutchinson’s office said officials were confident they could obtain more. And the state’s supply of midazolam lists an April 2017 expiration date, which pharmacy experts say is commonly accepted to mean the end of the month. The state’s supply of vecuronium bromide expires on March 1, 2018.
The inmates late Friday filed an amended complaint in state court aimed at blocking the executions, again arguing the lethal injection law and the three-drug protocol are unconstitutional. Attorneys for the inmates argued Monday in a letter to Hutchinson that the state Supreme Court’s stay is in place until that complaint is resolved. They said the current protocol “is almost certain to cause the prisoners excruciating suffering.”...
Since the U.S. Supreme Court reinstated the death penalty in 1976, only Texas has put eight people to death in a month — doing it twice in 1997. Arkansas has had multiple executions in the past, including triple executions in 1994 and 1997. At the time, the state Correction Department said multiple executions reduced stress on prison staff.
For a host of reasons, I will be surprised if Arkansas is able to move forward with eight executions over the last two weeks of April. But these developments certainly signal that the state is serious about getting its machinery of death up and running again ASAP.
Justices seem disinclined to limit federal judicial sentencing discretion in Dean
The US Supreme Court yesterday heard oral argument in Dean v. United States. The case will resolve a circuit split over whether federal district judges, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the firearm mandates. The oral argument transcript, available here, is a interesting read for a bunch of reasons. And I have a little summary of the argument posted here at SCOTUSblog. Here is how that posting starts:
It has now been more than a year since Justice Antonin Scalia passed away, but his jurisprudential spirit seemed to fill the courtroom yesterday as the Supreme Court heard oral argument in Dean v. United States. At issue in Dean is whether a trial judge, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the severity of the mandated consecutive sentences. During the oral argument, several justices endorsed the government’s contention that allowing a judge to give a nominal sentence for the underlying predicate offenses in these circumstances would largely negate Congress’ purpose in enacting Section 924(c). But, echoing statutory interpretation principles that Scalia often championed in federal criminal cases, the justices also stressed that the text of the applicable sentencing statutes did not clearly foreclose the trial judge’s exercise of judicial sentencing discretion. This textualist point may carry the day for the defendant.
Tuesday, February 28, 2017
Telling comments about violent crime from AG Sessions in speech to NAAG
Attorney General Jeff Sessions gave this lengthy speech at the winter meeting of the National Association of Attorneys General (NAAG). The speech is focused on what AG Sessions calls a "disturbing rise in violent crime in our nation," and the full speech should be read by any and everyone eager to get a sense for the perspectives and thinking of our new Attorney General. Here are some passages that especially caught my attention:
First, let’s put things in context. Overall, crime rates in the United States remain near historic lows. Murder rates are half of what they were in 1980. The rate of violent crime has fallen by almost half from its peak in the early 1990s. Many neighborhoods that were once in the grip of gangs and drugs and violence are now vibrant places, where kids can play in the park and parents can enjoy a walk after sunset without fear. There is no doubt that in the past four decades — under leadership from both political parties, and thanks above all to the work of prosecutors and good police using science and professional training — we have won great victories against crime in America. Hundreds of thousands of Americans are alive today as a result.
But in the last two years, we’ve seen clear warning signs — like the first gusts of wind before a summer storm — that this progress is now at risk. The latest FBI official data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent — the largest one-year increase since 1991. The murder rate increased 11 percent — the largest increase since 1968. The rape rate increased by over 4 percent, and the aggravated assault rate rose by nearly 4 percent.
If this was a one-year spike, we might not worry too much. But the preliminary data for the first half of 2016 confirmed these trends. The number of violent crimes in the first half of last year was more than 5 percent higher than the same period in 2015. The number of murders was also up 5 percent over the same period the year before, and aggravated assaults rose as well.
Just last week, the Wall Street Journal reported that since 2014, the murder rate in 27 of our country’s 35 largest cities has gone up. Homicide rates in Chicago, Baltimore, Milwaukee and Memphis have returned to levels not seen in two decades. Last year, Chicago had more than 4,000 shooting victims and 762 murders, and Baltimore’s murder rate was its second-highest ever.
These numbers should trouble all of us. My worry is that this is not a “blip” or an anomaly, but the start of a dangerous new trend that could reverse the hard-won gains of the past four decades — gains that made America a safer and more prosperous place....
While this spike in violent crime is not happening in every neighborhood or city, the trends should concern all of us. It is a basic civil right to be safe in your home and your neighborhood. We are diminished as a nation when any of our citizens fears for their life when they leave their home; or when terrified parents put their children to sleep in bathtubs to keep them safe from stray bullets; or when entire neighborhoods are at the mercy of drugs dealers, gangs and other violent criminals.
So we need to act decisively at all levels — federal, state and local — to reverse this rise in violent crime and keep our citizens safe. This will be a top priority of the Department of Justice during my time as Attorney General.
We know the first step in fixing something is recognizing you have a problem. For anyone who still doubts that today’s rise in violent crime is real and significant, I’ve done my best here to make that case. And I’m not alone, because police chiefs and sheriffs and mayors across our country are saying the same thing.
Once we recognize the problem, we need to examine the causes and take action. It’s still early, but people with long experience in law enforcement and crime research are beginning to draw some conclusions.
We know that our nation is in the throes of a heroin epidemic, with overdose deaths more than tripling between 2010 and 2014. Meanwhile, illegal drugs flood across our southern border and into cities and towns across our country, bringing violence, addiction and misery. In particular, we’ve seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs. As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.
In recent years, we’ve also seen a significant shift in the priority given to prosecuting gun and drug offenders at the federal level. While numbers don’t tell the whole story, I still find the following statistics troubling: at the end of 2015 there were more than 7 percent fewer federal gun prosecutions than five years before. In that same five-year period, federal drug prosecutions declined by 18 percent.
Under my leadership at the Department of Justice, this trend will end. Our agents and prosecutors will prioritize cases against the most violent offenders, and remove them from our streets so they can no longer do us harm.
We’ve also heard from law enforcement leaders, including the FBI Director and many police chiefs, that something is changing in policing. They tell us that in this age of viral videos and targeted killings of police, many of our men and women in law enforcement are becoming more cautious. They’re more reluctant to get out of their squad cars and do the hard but necessary work of up-close policing that builds trust and prevents violent crime.
This is a terrible place to be, because we know that tough and effective law enforcement can make a real difference. It can reduce crime and save lives. We’ve seen it happen in our country over the past four decades — and many of you in this room have been part of this noble work.
The immense social costs of crime are indisputable. Yes, incarceration is painful for the families of inmates, and every conviction represents a failure on multiple levels of society. But the costs of rising crime are even more severe. Drug crimes and violent felonies change the lives of victims forever. Neighborhoods hit by rising crime suffer deep economic harm. And if more young men choose to commit crimes because jail time is less daunting than before, that means they are forgoing more hopeful courses for their lives and their communities. In the midst of a terrible heroin epidemic and a rise in violent crime, we should not roll back the tools law enforcement has to go after federal drug trafficking and firearms felons, or release thousands more.
The federal government has a key role to play in addressing this crisis. I pledge that under my leadership at the Department of Justice, we will systematically prosecute criminals who use guns in committing crimes. We will work to take down drug trafficking cartels and dismantle gangs. And we will enforce our immigration laws and prosecute those who repeatedly violate our borders.
I also pledge to listen to the stories and concerns of those who are most affected by this rise in violent crime. Over the coming months I plan to travel around the country, from border towns to big cities, to talk with and learn from our law enforcement partners, crime victims, community leaders and others.
Earlier this month, the President also gave us clear direction. He signed three executive orders aimed at reducing crime and restoring public safety, protecting our law enforcement personnel, and dismantling the transnational cartels that are bringing drugs and violence into our neighborhoods.
To carry out the first of those orders, today I’m announcing the formation of a Department of Justice Task Force on Crime Reduction and Public Safety.
The Deputy Attorney General will chair the task force, which will include crime reduction experts throughout the Department of Justice, including the heads of the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Drug Enforcement Administration (DEA) and the U.S. Marshals Service. The task force will evaluate everything we are doing. It will look at deficiencies in our current laws that have made them less effective in reducing crime, and propose new legislation. It will make sure we’re collecting good crime data, and think of ways to improve that data so we can all better understand crime trends. We will insist that every agent and prosecutor is deployed effectively, fully supported and highly productive. Finally, the task force will consult with our partners in law enforcement at all levels, as well as law enforcement organizations, victims’ groups and community groups....
Unfortunately, in recent years law enforcement as a whole has been unfairly maligned and blamed for the unacceptable deeds of a few bad actors. Our officers, deputies and troopers believe the political leadership of this country abandoned them. Their morale has suffered. And last year, amid this intense public scrutiny and criticism, the number of police officers killed in the line of duty increased 10 percent over the year before. To confront the challenge of rising crime, we must rely heavily on local law enforcement to lead the way — and they must know they have our steadfast support.
For the federal government, that means this: rather than dictating to local police how to do their jobs — or spending scarce federal resources to sue them in court — we should use our money, research and expertise to help them figure out what is happening and determine the best ways to fight crime. We should strengthen partnerships between federal and state and local officers. And we should encourage proactive policing that ensures our police and citizens are communicating and working well together.
The new challenge of violent crime in our nation is real — and the task that lies before us is clear. As President Reagan used to say, there are no easy answers, but there are simple ones; we only need the courage to do what is right. We need to resist the temptation to ignore or downplay this crisis and instead tackle it head-on, to ensure justice and safety for all Americans. We need to enforce our laws and put bad men behind bars. And we need to support the brave men and women of law enforcement as they work day and night to protect us.
The title of this post is the title of this notable new paper about the Supreme Court's Eighth Amendment jurisprudence authored by William Berry III and now available via SSRN. Here is the abstract:
Three Eighth Amendment decisions — Harmelin v. Michigan, Pulley v. Harris, and McCleskey v. Kemp — have had enduring, and ultimately, cruel and unusual consequences on the administration of criminal justice in the United States. What links these cases is the same fundamental analytical misstep — the decision to ignore core constitutional principles and instead defer to state punishment practices. The confusion arises from the text of the Eighth Amendment where the Court has read the “cruel and unusual” punishment proscription to rest in part on majoritarian practices. This is a classical analytical mistake — while the Amendment might prohibit rare punishments, it does not make the corollary true — that all commonly used punishments must be constitutional.
This “unusual deference” to state punishment practices in light of this misconstruction of the text has opened the door to a proliferation of punishments that are disproportionate, arbitrary, and discriminatory. As such, this article argues for a restoration of the Eighth Amendment from its present impotence by reframing the concept of unusualness in terms of the Court’s stated Eighth Amendment values and unlinking it from its deferential subservience to state legislative schemes.
Part I of the article explains the genesis of the Court’s unusual deference. Part II of the article explores the manifestations of unusual deference, examining the flaws in the evolving standards of decency, differentness deference, and three most far-reaching examples of unusual deference — Harmelin, Pulley, and McCleskey. Finally, the article concludes in Part III by reimagining an Eighth Amendment free from the error of unusual deference and demonstrating how such an approach could begin to remedy the problem of mass incarceration.
February 28, 2017 in Examples of "over-punishment", Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
What are we likely to hear (or hoping to hear) from Prez Trump tonight about crime and punishment?
Prez Trump is slated to give his first speech to Congress tonight, and this Politico piece reports on some of the advance buzz coming from the White House about the tone and content of the speech. Here are brief excerpts from the report that might interest sentencing fans:
President Donald Trump’s highly-anticipated first address to Congress on Tuesday will detail an “optimistic vision” for the nation that vows to push a “bold agenda” on tax and regulatory overhauls, reforms in the workplace and a promise to “sav[e] American families from the disaster of Obamacare.”
That’s according to a list of 11 key bullet points outlining Trump’s speech from the White House that was obtained by POLITICO in advance of the address. In it, Trump will also paint his agenda with broad, unifying tones, saying he will “invite Americans of all backgrounds to come together in the service of a stronger, brighter future for our nation.”
“All Americans share a desire for safe communities for themselves and their families,” reads one of the points....
Here is the outline of Trump’s address, distributed by the White House:...
• In Tuesday night’s speech, he will lay out an optimistic vision for the country that crosses the traditional lines of party, race and socioeconomic status. It will invite Americans of all backgrounds to come together in the service of a stronger, brighter future for our nation.
• All Americans share a desire for safe communities for themselves and their families....
• It will be a speech addressed to ALL Americans AS Americans — not to a coalition of special interests and minor issues.
• Americans can expect a speech that is grounded firmly in solving real problems for real people. How can we make sure that every American who needs a good job can get one? How can we get kids who are trapped in failing schools into a better school? How we can keep gangs and drugs and violent crime out of their neighborhoods?
• The President will reach out to Americans living in the poorest and most vulnerable communities, and let them know that help is on the way.
Based on Prez Trump's prior speeches, I am expecting mostly generalities rather than many specifics on the topics of crime and punishment. But the tone and nature of generalities here could still provide addition insight into the likely direction and priorities for the administration of the federal criminal justice in the Trump era.
Monday, February 27, 2017
"How Trump's Twitter use could help bring down NC sex offender law"
The title of this post is the catchy headline of this news article providing a summary of today's Supreme Court oral argument in Packingham v. North Carolina, which involves a First Amendment challenge to a North Carolina law a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites. Here are excerpts from the press account:
A Supreme Court justice pointed to President Trump's use of Twitter during arguments in a challenge to a North Carolina law that forbids registered sex offenders from using social media.
The law, Justice Elena Kagan said, makes it illegal for a group of people to communicate with the president using his favored form of communication. "This has become a crucially important channel of communication," Kagan said.
The justices heard oral arguments Monday in Packingham v. North Carolina. Lester Packingham is a registered sex offender who posted a statement on Facebook celebrating the dismissal of a traffic ticket. Police in Durham, N.C., indicted him for breaking the state's 2008 law that bans sex offenders from using social media that allows children to be members, including Facebook, Twitter and Instagram....
Questions from Kagan and the three other liberal justices suggested they are concerned the law overly restricts free speech. It "forecloses some of the most important channels of communication in our society," Justice Sonia Sotomayor said.
Kagan said in addition to blocking a channel of communication with President Trump, the ban also restricts how sex offenders interact with lawmakers and with religious groups. "These sites have become embedded in our culture as a way to exercise constitutional rights," Kagan said.
Senior Deputy Attorney General Robert Montgomery for North Carolina said sex offenders have alternative ways to express their first amendment rights. The law, he said, is a protection for children against sex offenders who have a high rate of repeat offenses....
Conservatives on the court asked few questions. Chief Justice John Roberts noted the lack of precedent in a case dealing with social media. Justice Samuel Alito said perhaps the law could be narrowed to impact fewer websites.
Amy Howe at SCOTUSblog here has a more fulsome account of the argument under the heading "Justices skeptical about social media restrictions for sex offenders." This full transcript of the SCOTUS oral argument is available here.