Sunday, June 26, 2016

Mother Jones devotes issue to reporter's four months working as a private prison guard

Mojocover_JA16_660x866Going from being just a must-read to perhaps a must-buy, Mother Jones has devoted much of its July/August 2016 issue to the writings of reporter Shane Bauer providing his first-hand account of his four months working as a guard at a private prison in Louisiana.

This Editor's Note sets the tone and provides the context for this work under the full headline "Why We Sent a Reporter to Work as a Private Prison Guard: Legal intimidation has made investigations like this rare. It’s time for journalists to reclaim our roots." Here are excerpts from this Editor's Note:

In 1887, a 23-year-old journalist got herself checked into the Women's Lunatic Asylum on Blackwell's Island in New York City. When she emerged, she wrote about patients tied together with ropes, abusive staff and ubiquitous vermin, "lunatics" treated with nothing more restorative than ice baths, and, perhaps most disturbingly, patients who seemed to be perfectly sane, dumped there by a society that had few safety nets for women who were single, poor, and often immigrants....
 
Bly's work holds up not only for its daring, but for its impact: It prompted a grand jury investigation that led to changes she'd proposed, including a $26 million (in today's dollars) increase to the budget of the city's Department of Public Charities and Correction and regulations to ensure that only the seriously mentally ill were committed....
 
Bly — who'd go on to get herself arrested so she could investigate conditions at a women's prison, and to best Jules Verne's fictional protagonist by circumnavigating the world in 72 days—was not the first journalist to go inside an institution to expose its inner workings. Or the last....  But while such investigations were commonplace in the muckraker era, they've grown increasingly rare. Why? First, there's a real concern over ethics. When is it okay for reporters to not announce themselves as such? There's no governing body of journalism, but a checklist written by Poynter ethicist Bob Steele provides guidelines for assessing when this kind of reporting is acceptable. I'll paraphrase: 
  • When the information obtained is of vital public interest.
  • When other efforts to gain that information have been exhausted.
  • When the journalist is willing to disclose the reason and nature of any deception.
  • When the news organization applies the skill, time, and funding needed to fully pursue the story.
  • When the harm prevented outweighs any harm caused.
  • After meaningful deliberation of the ethical and legal issues.

To see what private prisons are really like, Shane Bauer applied for a job with the Corrections Corporation of America. He used his own name and Social Security number, and he noted his employment with the Foundation for National Progress, the publisher of Mother Jones. He did not lie. He spent four months as a guard at a CCA-run Louisiana prison, and then we spent 14 more months reporting and fact-checking.

We took these extraordinary steps because press access to prisons and jails has been vastly curtailed in recent decades, even as inmates have seen their ability to sue prisons — often the only way potential abuses would pop up on the radar of news organizations or advocates — dramatically reduced.  There is no other way to know what truly happens inside but to go there.
 
But here's the other reason investigations like this one have grown so rare: litigation.... Nondisclosure agreements — once mainly the provenance of people who work on Apple product launches and Beyoncé videos — are now seeping into jobs of all stripes, where they commingle with various other "non-disparagement" clauses and "employer protection statutes." Somewhere along the way, employers' legitimate interest in protecting hard-won trade secrets has turned into an all-purpose tool for shutting down public scrutiny—even when the organizations involved are more powerful than agencies of government.
 
Or when, for that matter, they replace the government. When CCA (which runs 61 prisons, jails, and detention centers on behalf of US taxpayers) learned about our investigation, it sent us a four-page letter warning that Shane had "knowingly and deliberately breached his duty to CCA by violating its policies," and that there could be all manner of legal consequences....

Shane's story will draw a fair bit of curiosity around the newsgathering methods employed. But don't let anyone distract you from the story itself. Because the story itself is revealing as hell.

Here are the chapter headings and links to this remarkable piece of reporting about private prisons:

CHAPTER 1: "Inmates Run This Bitch"  

CHAPTER 2: Prison Experiments 

CHAPTER 3: The CCA Way 

CHAPTER 4: "You Got to Survive" 

CHAPTER 5: Lockdown 

June 26, 2016 in Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Saturday, June 25, 2016

Will party platforms include commitment to reduce mass incarceration (and does it really matter)?

The question in the title of this post is prompted by this new Politico article , headlined "Civil rights groups push Dems, GOP to include sentencing reform in their platforms."  Here are excerpts:

An influential coalition of civil rights groups pushing for criminal justice reform is pressuring both the Republican National Committee and Democratic National Committee to include the issue in their respective party platforms this summer.

In a new letter, the organizations — including the American Civil Liberties Union, the NAACP, the Urban League and the Brennan Center for Justice — argue that after decades of pushing tougher crime laws, both Democrats and the GOP need a “bold break” toward policies aiming at easing incarceration rates.

“As you convene to set your respective policy agenda, we urge you to include reducing mass incarceration, while increasing public safety, as part of your party platforms,” the groups wrote in the letter, addressed to the respective party chairs and platform committee leaders and provided to POLITICO in advance of its release.

Among the policies called for by the pro-criminal justice reform groups: Revising sentencing laws so the “punishment is proportional to the crime and no longer than necessary to achieve rehabilitation and deterrence,” helping to reduce recidivism rates by promoting job training and educational programs for former inmates, and using federal funds to reward states for policies that reduce both the prison population and crime rates.  “While more is needed to fully achieve reform, including these measures in the platforms will signal a significant shift in national policy,” the organizations wrote.

Criminal justice reform has been a lingering issue in Washington, with both President Barack Obama and key Republican leaders in Congress saying they want to pass legislation overhauling sentencing laws and other prison reforms this year.  But the issue has also been a divisive one, particularly within the Senate Republican Conference, and its prospects are growing dimmer -- particularly in a contentious election year.

June 25, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Friday, June 24, 2016

Unexpectedly(?), new post-Hurst hydra head takes big bite out of Ohio capital case

Download (1)As regularly readers know, in this post not long after the Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe what I expected to become multi-headed, snake-like capital litigation as judges tried to make sense of what Hurst must mean for past, present and future cases.  That hydra has been taking various bites out of capital cases most prominently in Alabama and Delaware as well as Florida, but this article from my own local Ohio paper highlights how new heads can pop up in unexpected places.  The article is headlined "Prosecutor: Marion County judge's ruling puts death penalty in jeopardy," and here are the interesting details:

A Marion County judge this week dropped the death penalty elements from a convicted murderer-rapist's sentence on the grounds that there were similarities to a Florida death sentence ruled unconstitutional by the U.S. Supreme Court this year.

Because Florida and Ohio have similar sentencing and procedural guidelines, defense attorneys argued that Maurice A. Mason, sentenced in 1994 for raping and beating to death Robin Dennis, then 19 and pregnant, should not be executed.

The case could have implications in other capital cases in Ohio, said Marion County Prosecutor Brent Yager, who disagreed with Monday's decision by Marion Common Pleas Court Judge William Finnegan. "I was surprised," said Yager. "I believe that there is a distinction between the death penalty in Florida and in Ohio."...

Finnegan, in his ruling, wrote that the Hurst decision makes clear that the Sixth Amendment requires juries make specific findings to authorize the death penalty.  Ohio, he wrote, "has no provision for the jury to make specific findings related to the weighing of aggravating and mitigating factors," and thus is unconstitutional.

Yager said Ohio differs from Florida because juries here directly decide the aggravating circumstances in a capital case used in the penalty phase and sentencing, although judge's have the ability to commute the death sentence in lieu of life in prison....  Yager said the ruling is frustrating, in part because victim families and lawmakers expect swift and certain justice.

"Ohio and the state legislature have decided we still should have a death penalty in Ohio," said Yager. "But based on the judge's ruling here, if this stands, our death penalty would be unconstitutional. This decision does become a statewide issue." Yager said he plans to file an appeal with the Third Circuit Court of Appeals in Lima.

Mason's attorney, Kort Gatterdam, said the decision should "withstand scrutiny from higher courts and will become the law of this state ... and could become the basis to eliminate the death penalty in Ohio."...

Mason, now 52, has been moved from death row to a regular cell at the Mansfield Correctional Institution. With no sentence on record for the murder conviction, he technically is eligible for a parole hearing. But the Ohio Department of Rehabilitation and Correction and the parole board have said that won't happen his ultimate sentence for murder is resolved.

Not long after SCOTUS ruled in Hurst, a very smart and savvy local lawyer told me that he thought a strong argument could be made that Ohio's capital sentencing scheme has Hurst problems. Apparently, at least one state trial judge agrees, and it will be very interesting to watch the certain appeal of this ruling in the state courts as well as whether this ruling echoes through lots and lots of other Ohio capital cases past and present.

The full 50-page ruling in Ohio v. Mason, No. 93CR1053 (Ohio Common Pleas Ct. June 20, 2016), is available at this link. I have not yet had a chance to read the opinion, but I think it surely is a must-read for capital litigators of all stripes in Ohio and elsewhere.

June 24, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Do all or most prosecutors really end up "hostile to constitutional rights"?

The question in the title of this post is prompted by this lengthy new Reason commentary authored by Ken White and appearing under the titled "Confessions of an Ex-Prosecutor: Culture and law conspire to make prosecutors hostile to constitutional rights."  The full article is a must-read for lots of reasons, and how it gets started should highlight why:

Twenty-one years ago, the day O.J. Simpson was acquitted, I began my career as a federal prosecutor. I was 26 — a young 26 at that — on the cusp of extraordinary power over the lives of my fellow citizens. After years of internships with federal and state prosecutors, I knew to expect camaraderie and sense of mission. I didn't expect it to influence how I thought about constitutional rights. But it did.

Three types of culture — the culture of the prosecutor's office, American popular culture, and the culture created by the modern legal norms of criminal justice — shaped how I saw the rights of the people I prosecuted. If you had asked me, I would have said that it was my job to protect constitutional rights and strike only what the Supreme Court once called "hard blows, not foul ones." But in my heart, and in my approach to law, I saw rights as a challenge, as something to be overcome to win a conviction. Nobody taught me that explicitly — nobody had to.

When I left the U.S. Attorney's office after more than five years, my disenchantment with the criminal justice system had begun to set in. Now, decades later, my criminal defense career has lasted three times as long as my term as a prosecutor. I'm a defense-side true believer — the very sort of true believer that used to annoy me as a young prosecutor.

Once again, nobody taught me to think that way, and nobody had to. I learned it by watching how the system ground up clients indifferently and mercilessly.  I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching prosecutorial suspicion — and even paranoia — from the wrong end.  I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause.

I even learned it by watching prosecutors commit misconduct—the deliberate or reckless infringement of defendants' constitutional rights.  I saw prosecutors make ridiculous and bad-faith arguments defending law enforcement, and prevail on them. I saw them make preposterous assertions about the constitution because they could, and because judges would indulge them.  I saw them reject my claims that my clients' rights were violated because they were the government and my client was the defendant and that was their job.

My criminal defense colleagues who were never prosecutors themselves often assume that prosecutorial misconduct is rife because prosecution attracts authoritarian personality types.  Although it is surely true that some are natural bad actors, my experience showed me that prosecutors are strongly influenced to disregard and minimize rights by the culture that surrounds them.  Disciplining or firing miscreants may be necessary, but it's not enough: It doesn't address the root causes of fearful culture and bad incentives.

June 24, 2016 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (9)

Thursday, June 23, 2016

"For aficionados of pointless formalism, today’s decision is a wonder, the veritable ne plus ultra of the genre."

The title of this post is one of a number of Justice Alito's spectacular comments in his dissent in the latest Supreme Court ruling on ACCA, Mathis v. United States, No. 15–6092 (S. Ct. June 23, 2016) (opinion here, basics here).   In addition to a number of great rhetorical flourishes, Justice Alito's dissent in Mathis explains how messy ACCA jurisprudence has become and reinforces my sincere wish that folks in Congress would find time to engineer a (long-needed, now essential) statutory ACCA fix.  Here are passages from Justice Alito's Mathis dissent that frames effectively the mess that ACCA has become and builds up to the sentence I am using as the title of this post: 

Congress enacted ACCA to ensure that violent repeat criminal offenders could be subject to enhanced penalties — that is, longer prison sentences — in a fair and uniform way across States with myriad criminal laws....

Programmed [via prior ACCA rulings], the Court set out on a course that has increasingly led to results that Congress could not have intended. And finally, the Court arrives at today’s decision, the upshot of which is that all burglary convictions in a great many States may be disqualified from counting as predicate offenses under ACCA. This conclusion should set off a warning bell. Congress indisputably wanted burglary to count under ACCA; our course has led us to the conclusion that, in many States, no burglary conviction will count; maybe we made a wrong turn at some point (or perhaps the Court is guided by a malfunctioning navigator). But the Court is unperturbed by its anomalous result. Serenely chanting its mantra, “Elements,” see ante, at 8, the Court keeps its foot down and drives on....

A real-world approach would avoid the mess that today’s decision will produce. Allow a sentencing court to take a look at the record in the earlier case to see if the place that was burglarized was a building or something else. If the record is lost or inconclusive, the court could refuse to count the conviction. But where it is perfectly clear that abuilding was burglarized, count the conviction.

The majority disdains such practicality, and as a resultit refuses to allow a burglary conviction to be counted even when the record makes it clear beyond any possible doubt that the defendant committed generic burglary.... As the Court sees things, none of this would be enough. Real-world facts are irrelevant.

June 23, 2016 in Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms

As reported in this Reuters piece, headlined "California lawmakers move to change sentencing law following Stanford case," the common legislative reaction by policy-makers to concerns about an unduly lenient sentence is in progress in the wake of the high-profile sexual assault sentencing of Brock Turner. Here are the basics:

Seizing on a nationwide furor over the six-month jail term handed to a former Stanford University swimmer following his conviction for sexual assault on an unconscious woman, California lawmakers on Monday introduced legislation to close a loophole that allowed the sentence. The bill, known as AB 2888, marks the latest response to the sentence given to 20-year-old Brock Turner by Santa Clara County Superior Court Judge Aaron Persky in June, which was widely condemned as too lenient. Prosecutors had asked that Turner be given six years in state prison.

"Like many people across the nation, I was deeply disturbed by the sentence in the Brock Turner case," Assemblyman Bill Dodd, one of two California state legislators who introduced the bill, said in a written statement. "Our bill will help ensure that such lax sentencing doesn't happen again."

Turner was convicted of assault with intent to commit rape, penetration of an intoxicated person and penetration of an unconscious person in the January 2015 attack. Under California law, those charges are not considered rape because they did not involve penile penetration. According to the lawmakers, current California law calls for a mandatory prison term in cases of rape or sexual assault where force is used, but not when the victim is unconscious or severely intoxicated and thus unable to resist.

The new legislation, which was introduced in the state assembly on Monday, would eliminate this discretion of a judge to sentence defendants convicted of such crimes to probation, said Ben Golombek, a spokesman for Assemblyman Evan Low, a co-author of the bill. Golombek said that the effect of the proposed new law, which must still be approved by both houses of the legislature and signed by Governor Jerry Brown, is that Turner would have faced a minimum of three years behind bars.

Prior related posts:

June 23, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

"Religious Objections to the Death Penalty after Hobby Lobby"

The title of this post is the title of this intriguing piece authored by Danieli Evans now available via SSRN. Here is the abstract:

In this short essay, I consider how the logic of the complicity-based claims in Hobby Lobby and subsequent nonprofit cases could be applied to challenge the common policy of “death qualifying” jurors in capital punishment cases — removing any juror who reports conscientious opposition to the death penalty.  I argue that just like religious nonprofits that object to reporting a religious objection to contraceptives on the grounds that it enables someone else to provide contraceptives, a juror might object to reporting a religious objection to the death penalty on the grounds that it will enable someone else to replace them who is more likely to impose the death penalty.

June 23, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Religion, Who Sentences? | Permalink | Comments (0)

Wednesday, June 22, 2016

Anyone interested in making bold predictions on the last four criminal cases still to be decided by SCOTUS this Term?

Amy Howe at SCOTUSblog has this helpful new post reviewing the final eight cases still to be resolved by the eight Justices before they take their summer vacations.  Some of these opinions will be handed down tomorrow and the others are likely to be released early next week.  Notably, four of the remaining eight are criminal cases (and I am leaving out of this accounting the big immigration case).  Here are Amy's review of the four criminal cases left:

Voisine v. United States (argued February 29, 2016). Stephen Voisine and William Armstrong, the other petitioner in this case, both pleaded guilty in state court to misdemeanor assaults on their respective domestic partners. Several years later, each man was charged with violating a federal law that prohibits the possession of firearms and ammunition by individuals who have previously been convicted of a misdemeanor crime of domestic violence.  Voisine and Armstrong contend their state convictions (which the First Circuit affirmed) do not automatically qualify as misdemeanor crimes of domestic violence because the state-law provisions can be violated by conduct that is merely reckless, rather than intentional.

Birchfield v. North Dakota (argued April 20, 2016).  Twelve states and the National Park Service impose criminal penalties on suspected drunk drivers who refuse to submit to testing to measure their blood-alcohol levels. The question before the Court is whether those penalties violate the Fourth Amendment, which only allows police to “search” someone if they have a warrant or one of a handful of exceptions to the warrant requirement applies. Three drivers from North Dakota and Minnesota argue that neither of those conditions is met, and so the laws must fall.   The North Dakota and Minnesota Supreme Courts ruled in favor of the states, and now the Justices will weigh in.

Mathis v. United States (argued April 26, 2016).  After having been convicted of several burglaries in Iowa, Richard Mathis was later prosecuted by the federal government for being a felon in possession of a firearm and received a mandatory minimum sentence under the Armed Career Criminal Act based on his burglary convictions.  The Eighth Circuit affirmed his conviction.  The question before the Court is how to determine whether state convictions like Mathis’s qualify for federal mandatory minimum sentences and for removal under immigration law.

McDonnell v. United States (argued April 27, 2016).  Former Virginia governor Bob McDonnell is challenging his convictions for violating federal laws that make it a felony to agree to take “official action” in exchange for money, campaign contributions, or anything else of value. The Fourth Circuit affirmed, and so the Justices agreed to weigh in.  He argues that merely referring someone to an independent decision maker – in his case, in an effort to help promote a Virginia businessman’s nutritional supplement – doesn’t constitute the kind of “official action” that the statute bars.

I think it is possible that any of these cases could turn into a blockbuster, and Birchfield and McDonnell arguably require the Justices to do some "big" jurisprudential work to resolve the issues before them. Narrow/technical rulings seem more likely in Voisine and Mathis, though the former may get some extra attention in light of the on-going political discussions and sparring over gun control following the Orlando shootings and the latter seems sure to add yet another chapter to the lengthy and complicated ACCA jurisprudence.

As we await these final rulings (and especially because all are sure to be eclipsed in the mainstream media by the abortion, affirmative action and immigration cases also on tap), I would be eager to hear from readers about what they are expecting or even hoping for as the SCOTUS Term winds down.

June 22, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Making the case for enfranchisement to create a "prison constituency"

Corey Brettschneider has this lengthy new commentary at Politico with this lengthy full headline: "Why Prisoners Deserve the Right to Vote: Giving inmates the vote isn’t just constitutionally the right thing to do, it could also help the country solve one of its most intractable problems." I recommend the full piece, and here are excerpts from its closing sentiments:

Perhaps the most important reason to allow prisoner voting is that prisons, not just prisoners, would benefit. Prisoners need the vote to serve as the “natural defenders” of their own interests. But in defending their own interests, prisoners could substantially improve the prison system itself.

We can start with the issue of prisoner abuse. We already know that prisoners are subject to abusive and inhumane conditions. In a 2011 ruling that held overcrowded California prisons in violation of the Eighth Amendment, Justice Anthony Kennedy wrote that in California alone, an inmate “needlessly dies every six or seven days.” Plenty of other prison practices, such as solitary confinement, are just now receiving public scrutiny, and there are likely more troubling conditions we don’t know about. Under the current system, ending abusive practices requires years of expensive litigation as prisoners sue over maltreatment and prisons adjust to the rulings. We could improve prisons much more quickly and cheaply by creating a political constituency of prison voters.

How would that work? Obama’s historical 2015 visit to a federal prison was noteworthy because politicians rarely listen to those incarcerated. A prison and jail constituency, numbering roughly 2 million across 50 states, would make it routine for politicians to hold town halls and seek ways to improve prison and jail conditions from those who are subjected to them. This is not coddling prisoners. More and more politicians are looking to reform our criminal justice system, and this would be a common sense way to help them identify needed changes.

Of course, granting the right to vote is not enough to create a robust prison constituency. Prisoners will also need to be granted the right to speak freely and receive information, both of which are rights that are often limited for prisoners currently. Superstar litigator and former Solicitor General Paul Clement has already filed a lawsuit defending the right of prisoners to gain access to news about public life. Indeed, government can be held accountable only when citizens have information about the actions of their representatives.

Many will resist the idea of a prison constituency. The point of prisons, they say, is to inflict punishment, not to allow organizing. But this is shortsighted. Prison is itself already severe punishment. The deprivation of liberty and the loss of control over everyday interaction, including the ability to see one’s loved ones on a daily basis, are all severe constraints imposed by incarceration. One can be punished without being subjected to civic exile.

Some will argue that it is enough to allow prisoners to regain their right to vote after release. But we cannot expect prisoners to be deprived of all rights and then emerge from prison ready to use them well. The new consensus around post-release enfranchisement demands a smarter way to think about prisoners’ political rights behind bars. A prison constituency with rights to vote and related rights of free speech can engage in civic activism that will continue after release. Although voters in Massachusetts saw prisoner political participation as a kind of insurrection, it is nothing like the violent insurrections that marked prisons of the 1970s. As Joe Labriola, chairman of a Massachusetts civic prison organization called the Norfolk Lifers Group, put it, “In the ’70s, we thought we could make change with violence. Our whole point now is to make prisoners understand that we can make changes by using the vote. We have the ability to move prisons in a new direction.”

Research by Avidit Acharya, Matthew Blackwell and Maya Sen suggests another reason to care about voting in prison: They show that even temporary gaps in voting will have a long-term impact on participation. If we really care about felons’ post-release political participation, it is important that they be able to participate while they are in prison....

The creation of a prison constituency is not yet on the national agenda. But the increasing end to post-felony disenfranchisement makes this a good time to think about deeper changes to the way we treat the incarcerated. In the meantime, alternative measures could move things in the right direction: We should affirm nationally and, if need be, litigate for the right of prisoners to form PACs on the model of the Massachusetts group. Although legitimate concerns exist about the impact of PAC money on politics, these committees do provide a way to further a group’s policy interests. We can no longer grant that right to non-incarcerated citizens as a matter of free speech and deny it to prisoners, who are, according to the Supreme Court, citizens no less. The backlash from Massachusetts’ citizens was from an era in which mass incarceration was lauded and prison organizing was anathema in national politics. But today, citizens from both political parties are mobilizing against the harsh prison policies of the 1990s. Giving prisoners the right to free political speech is a sensible corrective to our misguided practice of mass incarceration.

In the end, restoring these basic rights is not only the right thing to do constitutionally; it could also present positive solutions to a major national political problem. The prison system would be more effective if it were accountable to its constituents. Prisoners have often committed heinous crimes. But they remain a part of our democratic polity, and we can learn from what they have to say.

June 22, 2016 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, June 21, 2016

"Society would benefit from rewarding attorneys for identifying the wrongly and unnecessarily imprisoned"

Regulation-summer-16-cover_0The title of this post is the subheading of this great new article in the latest issue of Regulation published by the Cato Institute. The article, authored Christopher Robertson and Jamie Cox Robertson, carries the main title of "Reducing Wasteful Incarcerations," and here are excerpts from the start and heart of the article:

Prisons are essential to a safe and civil society.  Prisons are also costly for the taxpayers whose government houses, feeds, medicates, and supervises millions of people underlock and key.  This expense is compounded by errors in the U.S. legal system that produces both false guilty verdicts and overly harsh penalties.  It’s time for the United States to take a closer look at these unnecessary incarcerations.  By working to release prisoners who don’t belong in prison, we can lower the costs of the prison system — not to mention restore freedom to people who are wrongly being deprived of it.  Unfortunately, it is difficult to identify which prisoners are wrongly incarcerated, and itwould take an enormous investment of professional expertise and money to produce that information.  However, we could make valuable progress on this issue by offering appropriate incentives for attorneys to identify some of these wasteful incarcerations, thus saving public money and serving the ends of liberty....

Under current law, most prisoners probably deserve to be there, and there is no simple algorithm for identifying which ones don’t.  The challenge is to separate the wheat from the chaff, and that requires professional skills and the investment of both time and money.  Currently, to do this sorting, we largely depend on charity, luck, and pluck, which is no way to run a multibillion dollar government enterprise.

A better approach would be for the government to increase funding for public defenders so they can do more post-conviction litigation.  Some public defenders already have in-house innocence projects.  Still, funding for public defenders’ offices is notoriously scarce, the salaries offered for these cases often fail to attract the best attorneys needed to undertake such complex work, and the overworked offices naturally triage in favor of new cases.

Of course, we could spend more on public defenders.  But as a centrally planned solution, it’s hard to assessthe optimal level of investment.  Prior reform efforts suggest that additional spending on public defenders may also be politically infeasible because it is often viewed as providing a service for criminals.

Instead, governmentsshould consider using a contingent-fee system for post-conviction counsel.  Attorneys would only receive this fee if they successfully show that a prisoner’s continued incarceration is wrongful.  The fee could be based on a simple proportion of the estimated amount the government would save by stopping the incarceration — perhaps 50% of those costs.  Or, the system could be set up like the statutory fee paid to civil rights attorneys, taking into account a reasonable hourly rate multiplied by a factor to recognize the low chances of prevailing.  In the False Claims Act, passed during the Civil War to root out fraud by government contractors, and the more recent whistle blower statute that the Internal Revenue Service uses to expose tax evaders,we have precedents for paying financial rewardsthat align the interests of knowledgeable individuals and the government.

The advantage of a contingent fee is that it gives attorneys an incentive to search for worthy cases and bring them to prosecutors and the courts, which is exactly what a cost-conscious government needs.  Unlike desperate and unskilled prisoners representing themselves, attorneys would have no incentive to clog the courts with frivolous claims for post-conviction relief.  Any such claim would require the investment of time and money without promise of return.  Instead, we should expect a small industry of specialist attorneys to develop, at first focusing on the low-hanging fruit, but then becoming more specialized to identify entire categories of cases where review is most promising.

June 21, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Open letter from large group of reform advocates urges Prez Obama to "accelerate the process" for granting clemency

As reported in this new USA Today piece, headlined "Experts warn White House that time is running out for clemency initiative," an impressive group signed on to this open letter to Prez Obama discussing his clemency activities.  Here are excerpts from the USA Today reporting providing some pf the leteer's context and content:

Thousands of federal inmates could be eligible to have their sentences reduced under the Obama administration's initiative to free non-violent offenders from prison, but experts are warning the White House that time is running out for the president to take action.

A record-setting number of clemency petitions, lack of resources and a confusion over eligibility have hampered President Obama's plan to use his constitutional pardon power to shorten sentences, particularly for low-level drug offenders serving mandatory minimum sentences.  If those inmates are going to have any hope, President Obama needs to personally intervene in the process, a group of advocates, law professors and attorneys said in a letter to the president Tuesday.

"The initiative has been plagued by bureaucratic inefficiencies that have kept petitions that meet all of your stated criteria from reaching your desk," the letter said.  "We are concerned that as your days in office diminish, the clemency initiative is moving too slowly to meet the goals you set when you announced it in 2014."

The letter was signed by 41 people, led by Julie Stewart of Families Against Mandatory Minimums and including and law professors from Harvard, Yale, Georgetown, Berkeley, Columbia, Northwestern, New York University and others. Also notable: former White House special adviser Van Jones and former U.S. District Judge Nancy Gertner.

In response, the White House said Obama "has demonstrated a commitment to the commutations process not seen by any other president in the modern era."  He's issued more commutations than the past seven presidents combined, written personal letters to clemency recipients and met with recipients to urge society to give them second chances.

"As we have said, the president will continue to issue additional commutations throughout the remainder of his time in office," said Assistant White House Press Secretary Brandi Hoffine.  "The clemency process alone, however, will not address the vast injustices in the criminal justice system resulting from years of unduly harsh and outdated sentencing policies."

Obama has stepped up the pace of commutations in his last year in office, no longer waiting until the end of the year to announce clemency decisions. Obama granted 61 commutations in March, 58 in May and 42 this month — part of what White House Counsel Neil Eggleston said was a deliberate attempt to grant clemency on a more regular basis. In all, Obama has commuted the sentences of 348 people, more than any president since Franklin Roosevelt.  (He's also granted just 70 pardons, fewer than any full-term president since 1800.)

But according to the Office of Pardon Attorney, 11,861 commutation petitions were still pending as of June 6, fueled largely by the Judtice Department's call for more applications from volunteer defense attorneys in 2014. And this isn't the first time there have been warnings of a backlog in the process.  A year ago, former Pardon Attorney Deborah Leff told defense lawyers that "the clock is running," and that petitions weren't coming in quickly enough.  There were questions about the eligibility criteria, and many cases required a complete re-examination of court and prison records.  Then in January, Leff resigned, citing a lack of resources and interference from Deputy Attorney General Sally Quillian Yates that prevented her recommendations from reaching the president's desk.

I had the honor of being asked to sign on to this open letter, and I agree with nearly all of its sentiments.  But, as I stressed in this post a few months ago, I have been clamoring for clemency reform since Prez Obama's first day on the job, and I remain deeply disappointed and troubled that there seems to have been no serious interest or commitment to any kind of structural/institutional reform in this space.  As a result, I did not feel I could comfortable sign this letter because it includes a sentence stating that, in th clemency arena, the signers "believe [Prez Obama's] leadership will bring lasting change to the country and set the table for further reforms in future administrations."

I certainly do not want to unduly criticize Prez Obama's (still very important) efforts in this arena, and I am especially pleased to see this open letter getting press attention.  But, unless Prez Obama does something more than just grant a few hundred more commutations (which is what I am expecting to see in the coming months), I am still going to view his Presidency in terms of a unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena.

June 21, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Intriguing review of Georgia's intriguing modern history with capital punishment

Because many modern landmark Supreme Court death penalty cases came from Georgia (e.g., Furman, Gregg, Coker, McKlesky), the Peach State will always have a plum role in any story of the modern history of the death penalty.  And this recent local article, headlined "Georgia executions rise, while death sentences plummet," details why Georgia's most recent history with capital punishment also merits attention.  Here is how the piece starts:

It’s Georgia’s new death penalty paradox: the state is executing inmates at a record clip, but prosecutors almost never seek the death penalty anymore, and juries refuse to impose it when they do.

During each of the past two years, Georgia executed five inmates. If, as expected, the state carries out another execution later this year, it will have put more people to death — six — in 2016 than in any single year since the U.S. Supreme Court reinstated capital punishment four decades ago. But the last time a Georgia jury imposed a death sentence was in March 2014. And district attorneys have been turning away from death as a sentencing option, more often allowing killers to receive sentences of life in prison without the possibility of parole.

A decade ago, state prosecutors filed notices of intent to seek the death penalty against 34 accused killers. That number dropped to 26 in 2011 and to 13 last year. How many times have Georgia DAs sought the death penalty so far this year? Once. And this was against a man accused of killing a priest — a clergyman who had signed a document saying if he died a violent death he did not want his killer to face the death penalty.

The incongruity of the increasing numbers of executions and the plummeting numbers of death sentences took both prosecutors and defense attorneys by surprise. “Wow,” Atlanta criminal defense attorney Akil Secret said. “Maybe the times are changing.” The precipitous declines raise the question of whether prior capital sentences were justified, Secret said. “If a life-without-parole sentence is sufficient for today’s worst crimes, why isn’t it sufficient for those crimes from the past where death was imposed?”

June 21, 2016 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, June 20, 2016

"Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment"

The title of this post is the title of this revealing new empirical paper available now via SSRN and authored by Amanda Agan and Sonja Starr. Here is the abstract:

“Ban-the-Box” (BTB) policies restrict employers from asking about applicants’ criminal histories on job applications and are often presented as a means of reducing unemployment among black men, who disproportionately have criminal records.  However, withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant’s race.  

To investigate this possibility as well as the effects of race and criminal records on employer callback rates, we sent approximately 15,000 fictitious online job applications to employers in New Jersey and New York City, in waves before and after each jurisdiction’s adoption of BTB policies.  Our causal effect estimates are based on a triple-differences design, which exploits the fact that many businesses’ applications did not ask about records even before BTB and were thus unaffected by the law.

Our results confirm that criminal records are a major barrier to employment, but they also support the concern that BTB policies encourage statistical discrimination on the basis of race.  Overall, white applicants received 23% more callbacks than similar black applicants (38% more in New Jersey; 6% more in New York City; we also find that the white advantage is much larger in whiter neighborhoods).  Employers that ask about criminal records are 62% more likely to call back an applicant if he has no record (45% in New Jersey; 78% in New York City) — an effect that BTB compliance necessarily eliminates.  However, we find that the race gap in callbacks grows dramatically at the BTB-affected companies after the policy goes into effect.  Before BTB, white applicants to BTB-affected employers received about 7% more callbacks than similar black applicants, but BTB increases this gap to 45%.

June 20, 2016 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

A couple of SCOTUS wins for prosecution in procedural cases

There really are no more big sentencing cases pending on the SCOTUS docket, but the Supreme Court is still resolving a number of cases dealing with a number of criminal justice issues.  Today, two such cases were handed down, and here are the basics (with links) via How Appealing:

Justice Samuel A. Alito, Jr. delivered the opinion of the Court in Taylor v. United States, No. 14-6166. Justice Clarence Thomas issued a dissenting opinion.... 

Justice Thomas delivered the opinion of the Court in Utah v. Strieff, No. 14-1373. Justice Sotomayor issued a dissenting opinion, in which Justice Ginsburg joined in part. And Justice Kagan issued a dissenting opinion, in which Justice Ginsburg joined. 

For some early commentary, here are two posts from Crime & Consequences on these cases:

I expect C&C and SCOTUSblog and others will have more commentary on these cases before too long, though neither appear to blockbusters. And because I am on the road most of the rest of the day, I hope commentors will flag anything in these opinions that ought to be of special interest to sentencing fans.

June 20, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

GVRs based on Foster generates opinions, including dissent from Justices Alito and Thomas

Last month, as reported here, the Supreme Court's reversed a conviction in Georgia capital case, Foster v. Chapman, because the Court had a "firm conviction" juror strikes in the case were "motivated in substantial part by discriminatory intent." Today, at the end of this order list, the Court now has relied on Foster to issue this order in a few cases:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Supreme Court of Mississippi for further consideration in light of Foster v. Chatman, 578 U. S. ___ (2016).

Justice Ginsburg explains this order via a concurrence in one of the cases, while Justice Alito joined by Justice Thomas cries foul.  Here is how Justice Alito starts his dissent on one of these cases:

This Court often “GVRs” a case—that is, grants the petition for a writ of certiorari, vacates the decision below, and remands for reconsideration by the lower court—when we believe that the lower court should give further thought to its decision in light of an opinion of this Court that (1) came after the decision under review and (2) changed or clarified the governing legal principles in a way that could possibly alter the decision of the lower court. In this case and two others, Williams v. Louisiana, No. 14–9409 and Floyd v. Alabama, No. 15–7553, the Court misuses the GVR vehicle. The Court GVRs these petitions in light of our decision in Foster v. Chatman, 578 U.S. ___ (2016), which held, based on all the circumstances in that case, that a state prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986), by striking potential jurors based on race. Our decision in Foster postdated the decision of the Supreme Court of Mississippi in the present case, but Foster did not change or clarify the Batson rule in any way. Accordingly, there is no ground for a GVR in light of Foster.

June 20, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, June 19, 2016

Some highlights from Marijuana Law, Policy & Reform . . . for Fathers' Day(?)

I am not sure if it is in any way fitting to be blogging about marijuana reform topics on Fathers' Day, but polls do pretty consistently show that men are generally more supportive of reform than women. That reality aside, this review of some recent postings from my Marijuana Law, Policy & Reform blog highlights that fathers and mothers, sons and daughters all ought to be paying attention to this dynamic arena of law and policy:

June 19, 2016 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Alabama appeals court says, in essense, "roll tide" to its capital sentencing process

78f550493aece6b4d5c83d32617bce5eAs reported in this post from a few months ago, a county judge had declared Alabama's capital murder sentencing scheme unconstitutional because it allows judges to override jury recommendations of life without parole and instead impose the death penalty.  But, as reported by this local article, late last week an Alabama appeals court took a different view.  Here are the basics:

An Alabama appeals court on Friday ordered a Jefferson County judge to vacate her rulings earlier this year that declared the state's capital punishment sentencing scheme unconstitutional. In its order the Alabama Court of Criminal Appeals says the state's capital sentencing scheme is constitutional and told Jefferson County Circuit Court Judge Tracie Todd to vacate her March 3 order in the pending capital murder cases of four men that says otherwise.

The Alabama Attorney General's Office had filed four petitions for a writ of mandamus asking the Alabama Court of Criminal Appeals to direct Todd to vacate her orders and allow the state to decide whether to seek imposition of the death penalty in those cases if it decides.

The cases involve Kenneth Eugene Billups, Stanley Brent Chapman, Terrell Corey McMullin, and Benjamin Todd Acton who were all indicted for various counts of capital murder. Chapman and McMullin are charged in the same case and the others in separate cases. Before their trials, the men each filed a motion to bar imposition of the death penalty in their cases and to hold Alabama's capital-sentencing scheme unconstitutional based on the United States Supreme Court's decision in January declaring Florida's death sentencing system unconstitutional....

Todd agreed and declared the capital murder sentencing law unconstitutional in a 28-page order. "The Alabama capital sentencing scheme fails to provide special procedural safeguards to minimize the obvious influence of partisan politics or the potential for unlawful bias in the judiciary," Todd stated in her ruling. "As a result, the death penalty in Alabama is being imposed in a "wholly arbitrary and capricious" manner."

The Court of Criminal Appeals, however, said Friday that the state's capital sentencing law is constitutional. "Alabama's capital-sentencing scheme is constitutional under (U.S. Supreme Court rulings) Apprendi, Ring, and Hurst, and the circuit court (Todd) erred in holding otherwise and prohibiting the State from seeking the death penalty in capital-murder prosecutions," the appeals court opinion on Friday states.

The Alabama Attorney General's Office established the prerequisites for the appeals court to issue an order to Todd telling her to vacate her opinion, the appeals court stated in its order. "Therefore, the circuit court (Todd) is directed to set aside its order holding Alabama's capital-sentencing scheme unconstitutional and to allow the State to seek the death penalty in capital-murder prosecutions if it chooses to do so.

The appeals court ruled that under Alabama's capital-sentencing scheme a capital murder defendant "is not eligible for the death penalty unless the jury unanimously finds beyond a reasonable doubt, either during the guilt phase or during the penalty phase of the trial, that at least one of the aggravating circumstances ... exists."

The court noted that Florida's law, which was struck down by the U.S. Supreme Court in January as unconstitutional, was conditioned on a first-degree-murder defendant's eligibility for the death penalty based on a finding by the trial judge, rather than the jury, that an aggravating circumstance existed. The appeals court also criticized the fact that the Attorney General was not given a the required notice that a state law was being challenged as unconstitutional and that Todd then didn't allow an assistant AG to speak at the hearing she held before making her ruling. Todd also had pre-written her ruling before the hearing, the court stated.

Judges Mike Joiner and Liles Burke concurred with the majority although they differed on some points in separate opinions. Both Joiner and Burke criticized Todd's order. Todd's order "contains sparse analysis on the application of Hurst to Alabama's capital-sentencing scheme," Burke wrote. "The majority of the order is devoted to the trial court's opinions regarding partisan politics, the effects of an elected judiciary, court funding, and the propriety of the death penalty in general," Burke states. "Additionally, the trial court extensively cites secondary sources, including materials from "Project Hope to Abolish the Death Penalty" as well as from the Web site of the Equal Justice Initiative, a nonprofit organization whose attorneys are representing the defendants in this very proceeding." "In reviewing the materials that were filed with this Court, I find no mention of these issues," Burke writes. "Thus, I question whether the trial court's (Todd's) ultimate conclusion is based on its analysis of Hurst or on the trial judge's personal opinions regarding Alabama's death penalty."

Alabama's attorney general reacted to the ruling early Friday night. "Today's decision by the Alabama Court of Criminal Appeals is the first case to affirm under Hurst that Alabama's capital sentencing is constitutional," Alabama Attorney General Luther Strange stated in a Friday evening press release. "The Appeals Court vacated the Jefferson County Court's March order and thereby held that Alabama can continue to seek the death penalty in capital murder prosecutions."

It's unclear, however, how Friday's ruling might affect recent orders by the U.S. Supreme Court telling the Alabama Court of Criminal Appeals to reconsider the appeals of three Alabama death row inmates in light of the Supreme Court's ruling earlier this year striking down Florida's capital punishment scheme.

The full 58-pages of opinions from the Alabama Court of Appeals can be accessed at this link.

Some prior related posts:

June 19, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Even after Orlando shootings, GOP leaders in Congress unwilling to allow more medical research into gun deaths

Though I generally favor so-called "common-sense" gun regulations, I am not sure that more gun regulations will really help to reduce gun violence.  But I am sure that more research on gun violence and gun-related deaths could and should help us better engineer laws to advance public safety.  Consequently, I was saddened and disappointed to see this recent article in The Hill.  It is headlined "GOP rebuffs doctors on gun research," and here are excerpts:

The American Medical Association’s new push to unfreeze federal funding for gun research is hitting a wall of resistance in the Republican Party. In the wake of the mass shooting in Orlando, the nation’s leading doctors group announced Tuesday it plans to “actively lobby” against a nearly 20-year-old budget rule that has prevented federal researchers from studying gun-related deaths.

The near-unanimous vote, which took place two days after Orlando shooting early Sunday morning, puts the powerful doctor’s lobby at odds with Second Amendment supporters who have argued that gun-related violence is no different from other violent acts.

Dr. Alice Chen, the executive director of the nonprofit Doctors for America, called the move a “game changer” for the long-standing fight to lift the research restrictions. “The strength of the AMA's vast membership, plus that of the over 100 medical and public health groups across the country, will be hard for Congress to ignore,” she said.

But Republicans in Congress, including those in the House Doctors Caucus who are members of the group, are soundly rejecting the AMA’s calls for research into gun-related deaths. “I don’t particularly see the need for it, quite frankly,” Rep. Tom Cole (R-Okla.), who leads health funding for the House Appropriations Committee, told The Hill on Thursday.

Rep. Michael Burgess (R-Texas), a member of the House Doctors Caucus, said he also opposed the policy change. “Although I’m a member of the AMA, I don’t always agree with the position they take,” Burgess told The Hill on Thursday. “It seems to have worked well. I don’t favor changing it,” Burgess said of federal researchers staying away from the issue of guns....

It’s becoming increasingly unlikely that the gun research will be part of Congress’s response to the Orlando shooting. Cole, the Oklahoma Republican, said GOP leaders are much more likely to boost funding for the FBI to improve background checks. “Research is good, but unfortunately, this administration has used terrorism despicably to advance their gun control issue. It doesn’t shock me to tears that he might use [Centers for Disease Control and Prevention] research rules to do the same,” Rep. Trent Franks (R-Ariz.) said Thursday.

Democrats this week already forced the GOP-led House Energy and Commerce Committee to vote on the research issue during its markup of a mental health bill. That amendment, from Rep. Tony Cárdenas (D-Calif.), failed on a party line vote of 23-29.

The moratorium on federal gun research stems from a 1997 budget amendment that prohibits federal funds “to advocate or promote gun control” — language that researchers say has had a chilling effect. Republicans adopted the so-called Dickey amendment, named after Rep. Jay Dickey (R-Ga.), in 1997 after strong lobbying from groups such as the National Rifle Association. Gun rights supporters have long argued that government agencies use studies to advance gun control, something researchers deny.

Dickey has since reversed course and is now campaigning to change the wording in the law.  Other gun rights advocates have remained strong in their opposition.  Larry Keane, general counsel for the National Sports Shooting Association, said the Centers for Disease Control and Prevention has “misdiagnosed the issue.”

“Our view is that criminal violence involving firearms is a criminal justice [issue],” Keane said in an interview Thursday. “The CDC should focus on its mission, which is addressing diseases and illnesses like cancer and preventing an outbreak of the Zika virus.”

The renewed push for lifting the federal research restrictions began on Tuesday, after the AMA’s policy-making arm, the House of Delegates, decided by voice vote to “actively lobby” on the issue.  It also officially declared gun violence to be a "public health crisis” for the first time, over the protest of some members.

American Academy of Family Physicians president, Dr. Wanda Filer, who attended the meeting in Chicago, said she heard “very few nay votes” during the vote.  The resolution had been drafted late into the night on Sunday by a group of young doctors who skipped planned conference festivities to draft it.

It was the second year in a row the AMA’s conference was interrupted by reports of a mass shooting. Last year, the AMA held a moment of silence after the shooting at a historic black church in Charleston, S.C., that killed nine people....

Filer said the AMA’s vote adds momentum to the cause that many physician groups, like hers, already supported. “Without research and being brave enough to ask the questions, we’re going to have ill-informed, emotional arguments,” Filer said Thursday. “What we’re saying is, we need research.”

Importantly, I do not disagree with the gun rights advocates' view that "criminal violence involving firearms is a criminal justice [issue]," but accepting that notion does not logically justify precluding medical research on gun-related deaths. If our society is truly committed to reducing gun deaths, we ought to have bright researchers working in all disciplines studying this grave problem to try to discover evidence-based strategies to improve public safety.  But, sadly, it seems that even after the worst mass shooting in recent US history, partisan politics can still preclude sensible policymaking.

June 19, 2016 in Gun policy and sentencing, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Saturday, June 18, 2016

Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort

Jeannie Suk has this notable New Yorker commentary headlined "The Unintended Consequences Of The Stanford Rape-Case Recall." Here are excerpts:

Federal judges at least have lifetime tenure to insulate them from public pressure.  For the vast majority of state judges in America, who are elected and who must fund-raise and campaign to get and retain their jobs, ignoring public opinion is impossible.  The phenomenon of electing judges strikes many as antithetical to the ideals of an independent judiciary.  Pamela Karlan, a Stanford Law School professor, has suggested that “fear of future electoral retaliation” may cause pernicious judicial bias.  In fact, studies show that the prospect of a reëlection or retention campaign makes judges more punitive toward criminal defendants, and high-court judges more likely to affirm death sentences. Even more troubling, eight states provide a recall process for the public to remove a sitting judge before he or she stands for reëlection or retention.  In California, all that is necessary for a recall election is a petition that follows a certain format and has enough signatures.

We are now seeing a very public judicial-recall movement in response to a sexual-assault case in California.  More than a million people have signed petitions demanding the removal of Aaron Persky, the California state judge who sentenced Brock Turner, a Stanford swimmer convicted of three felony sexual-assault counts, to six months in jail, three years of probation, and lifetime registration on the sex-offender list....

Judge Persky’s explanation of his departure from the state guidelines included the statement that “a prison sentence would have a severe impact” on Turner.  To many, this remark appeared to discount both the harm to the victim and the effects of imprisonment on people who were not formerly élite college students.  Michele Dauber, a Stanford law professor and a family friend of the victim, is leading the campaign to force a recall election to replace Persky, stating, “We need judges who understand violence against women.”...

It is remarkable, to say the least, that sharp disagreement over a particular decision has ballooned into a widespread social movement to oust a judge.  But as the historian Estelle B. Freedman noted in the Times, earlier this week, American feminists have twice succeeded in recalling state judges because of their handling of rape cases: in San Francisco in 1913 and in Madison, Wisconsin, in 1977.  Those recall efforts coincided with the first- and second-wave feminist movements, while the current decade has brought intense student activism and government action to force schools to take campus sexual assault more seriously.  The movement to recall Persky is an expression of outrage, not just about one case but about a broader failure to acknowledge violence against young women and about the class and race privilege afforded to white male defendants.  Turner’s case is extraordinary not only because of the severity of the assault but because it occurred in public and was observed and stopped by two reliable witnesses.  Without the two students who happened upon the crime, it is unlikely that the case would even have made it to the police, given that an estimated two-thirds of sexual assaults go unreported, and that the victim here had no memory of the event.

The petitioners and supporters of the victim have every right and reason to protest the sentence imposed by Persky. And because Persky is elected, and his electorate is empowered to recall him if it is unhappy with his job performance, a recall effort is a reasonable form for their protest to take.  But the fact that it is a valid form of protest does not mean that we should be directing serious concerns about rape into a campaign to fire a judge in retaliation for an overly lenient criminal sentence.  The current recall movement could have the effect of pressuring judges to play it safe by sentencing more harshly — and there is no reason to believe that will be true only in cases with white male rape defendants.

Nonwhite men are more likely than white men to be perceived as violent, predatory, or acting without consent, by complainants, police, prosecutors, witnesses, juries, and judges — particularly if a complainant is white.  That bias translates into inequality at all levels of the criminal system, from reporting and arrest to conviction and sentencing. Of course, that bias is precisely what Turner’s victim’s allies intend to protest with their recall efforts.  But as Paul Butler, a Georgetown law professor, wrote last week, in the Times, that effort could easily lead to harsher sentences all around, even in cases where giving someone a break is the right thing for a judge to do.  “The people who would suffer most from this punitiveness would not be white boys at frat parties,” Butler argued, but rather black and Latino men, who make up a disproportionate sixty per cent of the country’s prisons and jails.

The strong public reaction and organizing after the Stanford case has expanded public engagement with the largely campus-based efforts to change how sexual assault is treated in our society.  It also reflects a tension between the crime of sexual assault and the generally progressive social-justice movements criticizing harsh criminal penalties. This recall movement could not only influence who is elected to judgeships and the decisions those judges make, it could also spur harsh new legislative measures.  In the midst of our reckoning with decades-long ravages of the war on drugs, are we gearing up to have sexual assault take its place to fulfill our apparent appetite for outrage and punishment?  The existing sex-offender registries, which cause convicted people to be reviled and ostracized long after their penalty, are ready-made to support that turn.

Prior related posts:

June 18, 2016 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Friday, June 17, 2016

Daughter of mass murder victim explains why she opposes death penaly for Charleston church shooter Dylann Roof

This new Vox commentary authored by Sharon Risher explains a notable person's notable perspective on  forgiveness and the death penalty in a notable capital case. The piece is headlined "My mom was killed in the Charleston shooting. Executing Dylann Roof won’t bring her back." Here are excerpts:

Ethel Lance, my mother, was killed on Wednesday, June 17, 2015, along with my cousins Susie Jackson and Tywanza Sanders, and six other people at Charleston’s Emanuel African Methodist Episcopal Church.  It appears to have been a racially motivated massacre plotted by a 21-year-old white man....

A mere 48 hours after the church shooting, millions of Americans watched my sister, Nadine Collier, stand in front of our mother’s accused killer and forgive him at his bond hearing.  The media ran with the forgiveness narrative, praising the ability of the victims’ families for their graciousness and faith.

I didn’t forgive Dylann Roof. And I still don’t forgive him. After I saw my sister address the nation, I thought, This girl has to be crazy! Who’s going to forgive him so quickly?  I was hurt that people thought Nadine’s views reflected the views of the Lance family and the thoughts of all of the Charleston nine’s loved ones.

Don’t get me wrong. I disagreed with Nadine, but I respected her opinion — she’s my sister, and she has a right to her own emotions and grieving process.  Still, after the shooting, there were several articles that exploited our different ways of grieving.  They pitted us against each other in the midst of a horrific tragedy.

I understand that the people of Charleston, and of America as a whole, latched onto the overwhelming message of forgiveness as a coping mechanism.  But the focus on quick forgiveness and the pivot to remove the Confederate flag from the South Carolina statehouse washed away the severity of the larger issues at hand – that the accused killer, because of his hatred of black people, could be so stirred by white supremacist ideology that he would go into that church to kill my momma and all the others.

The man accused of killing my mother did not show any remorse.  Why should I feel the need to forgive him when he has not asked for forgiveness?  I know God commands us to forgive, but there is no time stamp — forgiveness is a journey that you allow yourself to feel because someone has wronged you....

In the months since the shooting, I received a handwritten letter from Lucia McBath, whose son Jordan Davis was killed in 2012 from gun violence. Lucia sent her condolences and told me to reach out to her if I needed to.  On a whim, I did.  From there, I became involved with gun control advocacy, rallying for national gun control organizations....

Despite the anger I am still coping with from my mother’s death, I don’t believe in the death penalty, even for the man who killed her.  That’s my conviction because of my faith.  I’ve said the same thing all along — I don’t believe as human beings that we should take away someone’s life just because we have the power to do so.

God is the only person, the only being who decides our fate.  Still, I will let the judicial system do what they choose. The Department of Justice announced last month that it will seek the death penalty against the shooter.  Whatever the outcome, I will not protest.

This is how my faith carries me. I don’t walk in fear.  I don’t think about Dylann Roof.  All I want to do is do what God has planned out for me.  If I can stop one person from experiencing the pain myself and my family and all the families experienced post-Charleston, then I have done my part.

June 17, 2016 in Death Penalty Reforms, Offense Characteristics, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, June 16, 2016

"States of Incarceration: The Global Context 2016"

The title of this post is the title of this notable new report from the folks at the Prison Policy Initiative. This press release from PPI provides an overview of the context and contents of this report:

How does your state compare to the international community when it comes to the use of incarceration? Not very well, says a new report and infographic by the Prison Policy Initiative.

“When compared against each other, some U.S. states appear to be far more restrained in their use of incarceration than high incarcerators like Louisiana,” said Peter Wagner, Executive Director of the Prison Policy Initiative and co-author of the report. “But all U.S. states are out of step with the rest of the world.”

This report, “States of Incarceration: The Global Context 2016,” updates our 2014 briefing that, for the first time, directly situated individual U.S. states in the global context.

“Massachusetts and Vermont have the lowest incarceration rates in the U.S.,” said Alison Walsh, report co-author and Policy & Communications Associate. “Compared to Louisiana, these states look progressive. But if these states were independent nations, they would rank as the 11th and 12th greatest users of incarceration on the planet, following the United States and a group of nations whose recent history often includes wars, military coups and genocides.”

The report includes an interactive graphic showing the incarceration rates for individual U.S. states and the District of Columbia and all countries with a population of at least 500,000. The report also includes a separate graphic comparing the incarceration rates of the U.S. to several NATO nations. “I hope that this data helps all states prioritize further criminal justice reforms. Lower incarceration rates are not only possible, in the rest of the world they are a reality,” said Wagner.

The report and infographic draw international figures on incarceration from the Institute for Criminal Policy Research’s World Prison Brief and state-level figures from the Bureau of Justice Statistics, the Bureau of Prisons and the U.S. Census Bureau.

The Easthampton, Massachusetts-based Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. The organization is most well known for sparking the movement to end prison gerrymandering and for its big picture data visualization “Mass Incarceration: The Whole Pie.”

June 16, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Making the case that Congress should, at the very least, make the Fair Sentencing Act fully retroactive

Julie Stewart, the President of Families Against Mandatory Minimums (FAMM), has this notable new Huffington Post commentary headlined "The Least Congress Can Do on Criminal Justice Reform." Here are extended excerpts:

Five and a half years ago, I wrote an op-ed in this space in which I urged Congress to apply retroactively the recently passed Fair Sentencing Act of 2010 (FSA).  The FSA reduced the indefensible disparity between crack and powder cocaine sentences from 100:1 to 18:1.  Every member of the U.S. Senate, including Senator Jeff Sessions (R-AL), supported the FSA because they recognized that there was simply no scientific or public safety rationale for the disparity and yet ample evidence of its racially discriminatory effect.  Yet five and a half years later, Congress still has not approved FSA retroactivity.

There are approximately 4,900 individuals still serving the crack cocaine sentences Congress repudiated when it passed the FSA.  They are the people whose cases we used to illustrate why the law needed to change, yet they did not benefit.  After the FSA passed, the U.S. Sentencing Commission fixed all of the non-mandatory minimum crack sentences by lowering its guidelines consistent with the new law.  But the Commission only has authority to changes its guidelines, not mandatory minimum punishments set by Congress and found in statutes.

Today, legislation to make the FSA retroactive is included in a broader sentencing reform bill, which was introduced by Senator Chuck Grassley (R-IA) and is pending in the Senate....  [T]he U.S. Sentencing Commission, at FAMM’s urging and with FAMM’s support, has done all it can to reduce drug sentences and make those reductions retroactive for tens of thousands of federal prisoners.  Notably, those who received retroactive relief from the Commission have reoffended at a lower rate than those who served their full sentences.

We recognize that bipartisan consensus and compromise are essential to passing criminal justice reform through the Congress. Because of the hard work of key senators and outside advocates from across the ideological spectrum, we believe that Senator Grassley’s bill would receive more than the 60 votes necessary to invoke cloture and would probably receive closer to 70 votes on final passage.  But in an election year, especially a presidential election year, consensus is not enough. The bar is much higher.  Unanimity, not broad consensus, is required. Without unanimity, any reform bills will require floor time and will be subject to hostile amendments that could significantly weaken them.

Unanimity is lacking today because of a number of factors.  A couple of vocal but mistaken members of Congress insist that any drug sentencing reform will endanger the public, an election-year fearmongering tactic that has no basis in fact. There is also strong disagreement about whether to include minimum criminal intent requirements (“mens rea”) in any final reform bill.  House Judiciary Chairman Bob Goodlatte (R-VA) and Senator Orrin Hatch (R-UT) support broad mens rea protection; the White House and most Democrats strongly oppose it.  The congressional calendar presents an equally daunting challenge.  We are in June of an election year.  The Senate only plans to be in session for roughly 40 days between now and the November election....

For 4,900 people serving sentences Congress itself deemed unfair, members of the Senate and House need not wait a day longer. If prospects for passing a larger package of criminal justice reforms do not dramatically improve in the coming days, Congress should at least pass narrow legislation making the FSA retroactive.  Those serving discredited, excessive sentences for crack offenses should not be forced to wait any longer for justice.  The Sentencing Commission’s evidence suggests that giving retroactive relief to those serving excessive crack sentences does not harm public safety. To the contrary, making the FSA retroactive would save lives, money, and right a terrible wrong. That is a legacy both parties can be proud to share with their voters this Fall.

June 16, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Delaware Supreme Court struggles to tame the post-Hurst hydra

Download (1)As regular readers know, in this post not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what I expected to be multi-headed, snake-like litigation developing in various courts as judges sort ought what Hurst must mean for past, present and future capital cases. This local article reports on the Delaware Supreme Court arguments yesterday trying to sort out the constitutionality of the state's death penalty law in the wake of Hurst.  Here are excerpts:

After two sides argued their cases Wednesday morning, justices on Delaware’s highest court departed to consider the constitutionality of the most severe punishment of all – death.

The Delaware Supreme Court is weighing the merits of a judge’s role in capital punishment sentencing and how it relates to the right to a jury trial. “We understand how important this is (to all you),” said Chief Justice Leo E. Strine Jr. before exiting the packed courtroom with his four Supreme Court colleagues.

The issue arose after the U.S. Supreme Court determined in January that Florida’s death penalty statute was unconstitutional and that “the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” After the ruling, all death penalty trials in Delaware were stopped until more clarity was brought to the state’s process and how it relates to the constitution.

According to the Supreme Court in an order, there are over two dozen capital cases pending in Superior Court, four scheduled for trial, in less than 120 days.

Questions to the court were raised in the currently pending murder case of Benjamin Rauf. On Wednesday, attorneys presented their beliefs before the court in a scheduled 60-minute session, at times engaging in question and answer discussions with the justices.

Since a jury decides whether a case is death penalty eligible in Delaware, the state maintains that constitutional requirements are currently met. Deputy Attorney General Sean Lugg argued for the state on Wednesday. Mr. Lugg said Delaware’s sentencing scheme, which was revised in 2002 in response to a previous U.S. Supreme Court ruling, meets all of the elements outlined by the Supreme Court in the Florida decision, according to the Associated Press. “The fundamental right to a jury is provided by the Delaware statute,” he said....

In Delaware, judges have the final say on whether a death sentence is ordered; a jury must find at least one statutory aggravating factor unanimously and beyond a reasonable doubt to make a defendant death penalty eligible. In Florida, judges had the responsibility to find any “aggravating factors” that qualify it for possible capital punishment sentencing.

Assistant Public Defender Santino Ceccotti argued for the appellant. “The Sixth Amendment requires not a judge, but a jury, to find each fact,” he said.

Prior related post:

June 16, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, June 15, 2016

Split Second Circuit panel reverses (on procedural grounds, sort of) 60-year sentence for production and possession of child porn

A few helpful readers helped make sure I did not fail to note the interesting split Second Circuit panel decision handed down yesterday in US v. Brown, No. 13‐1706 (2d Cir. June 14, 2016) (available here).  Here area key passages from the majority opinion authored by Judge Pooler explaining its (procedural?) basis for reversal of a 60-year prison term (with most cites omitted) for the production of child pornography:

At sentencing, the district court noted “the trauma to these three children,” the fact that “three children” would have to “worry for the rest of their li[v]e[s]” about the photographs, and that Brown “destroyed the lives of three specific children.” App’x at 100‐01.  The district court’s explanation suggests that the 2 individual harm suffered by each of Brown’s three victims played a critical role in the district court’s decision to impose three consecutive 20‐year sentences.  But the sentencing transcript also suggests that the district court may have misunderstood the nature of that harm as to Brown’s third victim.  Three times the court emphasized the mental anguish that “three specific children” would suffer as a result of Brown’s abuse. App’x at 100‐01. Brown’s third victim, however, has “no knowledge of having been victimized by Brown.” PSR ¶ 35. Her mother declined to submit a victim impact statement specifically because her daughter “was unaware of the abuse” and had experienced “no negative impact.” PSR ¶ 51.  To be sure, the district court was entitled to punish Brown for that abuse regardless of whether the victim was aware of it.  But given the district court’s repeated emphasis on the fact that Brown had destroyed the lives of “three specific children,” we conclude that it is appropriate to remand for resentencing to ensure that the sentence is not based on a clearly erroneous understanding of the facts.

It is possible that, on remand, the district court will reimpose the same 60‐year sentence that it imposed at the original sentencing. Although we express no definitive view on the substantive reasonableness of that sentence at this time, we respectfully suggest that the district court consider whether an effective life sentence is warranted in this case. We understand and emphatically endorse the need to condemn Brown’s crimes in the strongest of terms.

But the Supreme Court has recognized that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Graham v. Florida, 560 U.S. 48, 69 (2010)....

The sentencing transcript suggests that the district court may have seen no moral difference between Brown and a defendant who murders or violently rapes children, stating that Brown’s crime was “as serious a crime as federal judges confront,” App’x at 101, that Brown was “the worst kind of dangerous sex offender,” App’x at 102, and that he was “exactly like” sex offenders who rape and torture children, App’x at 100.  Punishing Brown as harshly as a murderer arguably frustrates the goal of marginal deterrence, “that is, that the harshest sentences should be reserved for the most culpable behavior.”...

Finally, to the extent that the district court believed it necessary to incapacitate Brown for the rest of his life because of the danger he poses to the public, we note that defendants such as Brown are generally less likely to reoffend as they get older.

Judge Droney authored a lengthy dissent, which gets started this way:

The majority simply disagrees with the length of the imprisonment imposed upon the defendant by the district court, yet it cloaks that disagreement as procedural error.    There was no procedural error, and the sentence was well within the discretion of the district court.  It was also appropriate.  The defendant sexually abused at least three very young girls, recorded that abuse, installed secret cameras in public areas where children changed clothes, and possessed over 25,000 images of child pornography on his computers, including many scenes of bestiality and sadistic treatment.    No doubt this was a lengthy sentence, but it was warranted.   

I dissent.  The district judge committed no error whatsoever— procedural or substantive. 

June 15, 2016 in Booker in district courts, Booker in the Circuits, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

"The Antidemocratic Sixth Amendment"

The title of this post is the title of this intringuing new article about the right to counsel authored by Janet Moore and now available via SSRN. Here is the abstract:

Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers.  These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel.  This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent.

The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute.  The Article’s new theoretical framework exposes the “no-choice” stance as an antidemocratic concentration of judicial power, which blocks pressure from poor people to strengthen the right to counsel.  Finally, the Article addresses practical objections to an equal right of attorney choice with innovative strategies that promote meaningful choice for all defendants.

June 15, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

If you are eager to take a peek behind this blog...

you can and should thank Scott Greenfield, the defense attorney behind the terrific Simple Justice blog, for kindly inviting me to be subject to this "cross" at Mimesis Law.  Scott asked me 10 series of questions about my personal and professional history, and as a teaser I will reprint here the first and last sent of Scott's "crossing" inquiries:

Q. You graduated Princeton in 1990 with a degree in philosophy.  Why philosophy?  Was this about a liberal arts foundation for the future, or was there a plan to be the Nietzsche of Jersey?  How did that prepare you for the rigors of law school and, later, the practice of law?  Were there any alternatives coming out of Princeton other than law for your future?...

Q. Having written the hornbook on sentencing law, getting your second endowed chair professorship, and being the acknowledged sentencing scholar on the internets, what’s next for you?  Are you a professor for life?  Dean someday? What about a seat next to Judge Calabresi? What’s the next step for Doug Berman?  And will SL&P last forever?

If you are curious at all about how I responded to these queries and eight more sets of terrific questions in between, please do check out CROSS: Douglas Berman, The Final Sentence

June 15, 2016 in On blogging, Who Sentences? | Permalink | Comments (0)

Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions

I am generally somewhat hesitant about lambasting a judge's sentencing decision when I have only limited information about the case, and I often wonder whether others' quick to critcize a particular decision have reviewed all the key evidence before going on the attack.  Relatedly, I am uniquely interested in the views and criticisms of a sentening decision lodged by anyone who was intimately involved in the case, and thus I find distinctly noteworthy this new report about new criticisms of the controversial Brock Turner sentencing.  The article is headlined "Juror slams judge in Stanford rape case, calls sentence 'a mockery' amid recall push," and here is how it gets started:    

The judge who sentenced Stanford University swimmer Brock Turner to six months in jail for sexual assault is continuing to face criticism for his decision. The effort to recall Santa Clara County Superior Court Judge Aaron Persky has gained steam, with several political groups vowing to raise money for the campaign.  Two veteran Democratic political consultants, Joe Trippi and John Shallman, decided Thursday to join the effort to force a recall election.

Then, one of the jurors who convicted Turner of sexual assault wrote a letter to Persky. The juror wrote of being “absolutely shocked and appalled” at the sentence.

“After the guilty verdict I expected that this case would serve as a very strong deterrent to on-campus assaults, but with the ridiculously lenient sentence that Brock Turner received, I am afraid that it makes a mockery of the whole trial and the ability of the justice system to protect victims of assault and rape,” the juror wrote to Persky.  “Clearly there are few to no consequences for a rapist even if they are caught in the act of assaulting a defenseless, unconscious person,” the juror wrote in the letter, which was obtained by the Palo Alto Weekly [available here].

Prior related posts:

June 15, 2016 in Celebrity sentencings, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

"Substantive and Procedural Silence"

The title of this post is the title of this intriguing new paper authored by Erin Sheley now available via SSRN. Here is the abstract:

Perceptions of the procedural fairness of the criminal justice system turn on whether it gives individuals and communities a “voice,” or a forum in which to tell their stories. If the system imposes unwanted silence on a party its legitimacy in the eyes of the public decreases.  Despite the extensive literature on the many specific applications of silence in the justice system, no attempt has yet been made to break down the relationship between the victim’s silence and the defendant’s across the disparate doctrines of criminal law, or the importance of these interconnections to the expressive purposes of punishment, particularly in a world where punishment so frequently turns on the outcome of plea negotiations.

Such an effort requires us to recognize a distinction between procedural silence, which is grounded in the individual rights of each party, and what should be understood as substantive silence, which can form part of both the definition of criminal conduct on the front end and, on the back end, of the judgment and sentence in a particular case.  This article has two purposes.  One, it provides the first full taxonomy of the role of silence in the criminal law and identifies the key interactions between procedural and substantive silence.  And, two, it offers normative suggestions — particularly to prosecutors — for managing silence in a way that will better achieve justice in light of the cumulative relationship between substance and procedure.

June 15, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, June 14, 2016

Split en banc Ninth Circuit tries its level best to sort through what Freeman means for crack guideline retroactivity eligibility

This Courthouse News Service article, headlined "Ninth Circuit Tackles Sentencing Disparities," does a nice job explaining the context and particulars of the ruling on a Ninth Circuit en banc court yesterday in US v. Davis, No. 13-301335 (9th Cir. June 13, 2016) (available here). Here are snippets from the press reporting:

Davis pleaded guilty to distributing at least 170.5 grams of crack cocaine in 2005. U.S. District Judge Ronald Leighton, a George W. Bush appointee, sentenced Davis on the higher end of the 188- to 235-month federal guidelines range a year later.

In 2010, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity ratios between crack and powder cocaine down to 18-to-1. The U.S. Sentencing Commission passed an amendment the following year that would allow more than 12,000 drug offenders — 85 percent of whom were black — to apply for retroactive relief. But prosecutors claimed that Davis waived his right to contest his sentence when he signed his plea agreement back in 2005.

After losing two rounds of appeals, Davis notched a small courtroom victory that may help hundreds who received disproportionate sentences. In addressing Davis's case, the San Francisco-based Ninth Circuit Court of Appeals tried to settle a controversy that has raged since the Supreme Court's uncertain conclusion five years ago in Freeman v. United States, which did not clearly define whether defendants could be eligible for retroactively reduced sentences if they pleaded guilty under guidelines that were subsequently reduced.

Although five justices agreed that the appellant in that case should receive reconsideration of his sentence, only four concurred on the lead opinion. Four judges dissented, and Justice Sonia Sotomayor wrote a special concurrence. This left lower courts to puzzle over whether Sotomayor had broken the tie. "To say that Freeman divided the court would be an understatement," U.S. Circuit Judge Richard Paez wrote for a divided 11-judge panel in Monday's majority opinion. "Not only did the plurality and dissenting opinions take opposite positions, but both also strongly criticized Justice Sotomayor's concurrence."...

Davis has received a fresh opportunity to reduce his sentence, but this does not guarantee that the district judge will grant him relief. Jones Day attorney Nathaniel Garrett, who represents Davis, said in a phone interview that his client's recommended sentence under the federal guidelines should drop dramatically when it returns to the lower court. Garrett noted sentencing guidelines without the 100-to-1 crack-to-powder disparity would range between 78 and 97 months in prison, and Davis already has served 143 months behind bars.

The U.S. Sentencing Commission noted two years ago that at least 71 applications for sentence reductions have been denied because of plea agreements like the one Davis signed, but Garrett believes his client's case would open the way for others to find relief. "What we don't know is how many individuals are in prison who haven't applied because the courts told them that they can't," he said.

Nancy Talner, a senior staff attorney for the American Civil Liberties Union's Washington state affiliate, said in a phone interview that the opinion underscores "how unfair the old crack-cocaine sentencing was."...

In a concurring opinion, U.S. Circuit Judge Morgan Christen agreed that Davis deserved the opportunity to reduce his sentence, but quibbled about how courts should interpret plurality decisions with no clear victors. The majority opinion leaves the possibility open to take dissenting opinions into account, but Christen thought that this could sow more confusion.

"This is not to say that dissents serve no purpose," Christen wrote. "They can and should be read to provide context and a deeper understanding of the court's decisions, but they do not inform our analysis of what binding rule, if any, emerges from a fractured decision."

Dissenting Judge Carlos Bea would have rejected Davis's effort entirely. "The district court correctly determined that it lacked jurisdiction to resentence Davis, and the panel should affirm on that basis," he wrote.

Defense attorney Garrett predicted, however, that the majority's "reasoned and thoughtful and thorough" opinion would serve as a guide for other circuit judges who have struggled to interpret the Supreme Court's plurality decisions.

June 14, 2016 in New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Notable South Carolina affinities and disaffinities for capital prosecution of Charleston mass murderer Dylann Roof

This recent local article out of South Carolina provides an interesting review of interesting survey data about opinion on the high-profile capital prosecution(s) of a local mass murderer.  The article is headlined "Most SC blacks say Dylann Roof should get life without parole," and here are excerpts:

A majority of black South Carolinians say Dylann Roof should be sentenced to life without parole — not death — if he is found guilty of murdering nine African-American members of Charleston’s Emanuel AME Church. But most white South Carolinians say Roof should be sentenced to death if he is found guilty, according to a University of South Carolina poll.

Roof faces federal and state charges in connection with the Charleston massacre. Both federal and state prosecutors have said they will seek the death penalty. The difference of opinion over Roof reflects historically differing attitudes toward the death penalty between black and white South Carolinians, according to the USC poll, released Saturday.

The poll — on race relations a year after the Emanuel Nine massacre — also found stark differences in how South Carolina’s white and African-American residents view the criminal justice system.

The poll found:

▪ A majority of black South Carolinians — 64.7 percent — said Roof should be sentenced to life without parole if found guilty.

▪ Just three in 10 African Americans — 30.9 percent — said Roof should be sentenced to death. Another 4.4 percent said they didn’t know what the punishment should be, according to the poll, which surveyed 800 random S.C. adults.

▪ The majority of whites — 64.6 percent — think Roof should be sentenced to death.

▪ Only 29.9 percent of whites think Roof should be sentenced to life without parole; 5.6 percent of those surveyed said they didn’t know.

The question of whether to seek the death penalty against Roof divides the families of those slain in Charleston. Some family members oppose the death penalty. Others say it would be justice. The findings of the USC poll reflect most black South Carolinians’ consistent opposition to the death penalty and most whites’ consistent support for it, said Monique Lyle, a USC political scientist who co-conducted the poll with USC’s Bob Oldendick.

The majority of black South Carolinians — 64.9 percent — oppose the death penalty, according to the poll. The majority of white South Carolinians — 69.4 percent — favor it. The African-American community’s opposition to the death penalty reflects its history with the criminal-justice system, said Kylon Middleton, senior pastor of Charleston’s Mount Zion AME Church.

“Most black people would not want someone to be executed because” so many African Americans have been executed, said Middleton, a longtime friend to Clementa Pinckney, the Emanuel pastor and state senator who was among the nine slain. “We have been brutalized in this country, therefore, we can empathize with anyone … who would receive ultimate judgment,” Middleton said, citing America’s history of slavery.

Beyond that history, African Americans also tend to be extremely religious, said state Rep. Todd Rutherford, D-Richland, noting the Bible commands: Thou shall not kill. In addition, a life sentence without parole now means that a defendant will spend life in prison. “That seems to be sufficient for most African Americans as punishment,” even in the case of Roof, Rutherford said, an attorney. The African-American community also believes in a rehabilitative and repentant society, said state Sen. Gerald Malloy, D-Darlington, who declined to discuss Roof specifically. (Malloy, an attorney, represents the family of Sen. Pinckney.)

African Americans also have concerns about the fairness of the justice system, said Todd Shaw, a USC professor of political science and African-American studies. “I don’t think there would be an exception for someone such as Dylann Roof,” Shaw said, adding some African Americans feel “bringing about his death will not bring about justice.”

A few prior related posts:

June 14, 2016 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

Monday, June 13, 2016

"Taking Dignity Seriously: Excavating the Backdrop of the Eighth Amendment"

The title of this post is the title of this notable new paper authored by Meghan Ryan now available via SSRN. Here is the abstract:

The U.S. punishment system is in turmoil.  We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions.  Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented.  The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess.

The Court has been consistent in stating that a focus on offender dignity is at the core of the Amendment’s prohibition on cruel and unusual punishments, but there has been virtually no analysis of what this dignity requirement means.  This Article takes the first foray into this unexplored landscape and finds that the Constitution demands that the individuality of offenders be considered in imposing and carrying out sentences. While this appears to be a simple concept, it raises significant concerns about several modern-day sentencing practices.  Punishments rooted in pure utilitarianism, by neglecting the importance of the individual offender, run afoul of this dignity demand.  This sheds doubt on the propriety of some judges’ assertions that defendants’ freestanding innocence claims cannot stand because policy considerations like finality are of paramount importance; an individual offender cannot be ignored purely for the sake of societal goals.

For the same reason, the importance of individual dignity should lead us to question statutes supporting only utilitarian aims of punishment.  While this raises questions about the constitutionality of pure deterrence, rehabilitation, and incapacitation, these purposes of punishment may be reconceptualized to account for the individual offender.  For example, rehabilitation could be reformulated to consider not only the offender’s effects on society when he is returned to the community but also whether the offender’s character has been reformed.  Finally, the importance of Eighth Amendment dignity raises questions about the constitutionality of mandatorily imposed punishments, which overlook the importance of individualization in sentencing. If we take seriously the dignity core of the Eighth Amendment, then many of these practices must be reconsidered.

June 13, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Notable new commentary at The Federalist talks through conservative support and opposition to federl statutory sentencing reform

Rachel Lu, a senior contributor at The Federalist, has this interesting new commentary under this lengthy headline: "We Need Sentencing Reform And This Bill Is A Good Start: The past two decades have seen ramped-up sentences for drug criminals, which have cost us billions in taxpayer money, while yielding few benefits. Let’s take this opportunity to do better." The piece usefully goes beyond the usual superficial advocacy for federal sentencing reform and digs into the debate within conservative circles about whether to support or oppose the SRCA. I recommend the piece in full, and here excerpts (with links from the original):

What’s really going on with the federal Sentencing Reform and Corrections Act? This bipartisan legislation has been in the news lately, prompting a strange and confusing exchange between conservatives who support justice reform (notably Vikrant Reddy and myself) and critics of the movement (Sean Kennedy and Jeffrey Anderson)....

Donald Trump has been comparatively quiet thus far on the crime issue. That may reflect the fact that some of his likely vice presidential candidates (most notably Newt Gingrich and Nathan Deal) have already established themselves in the pro-reform camp. Nevertheless, this initiative could still fall prey to the dreary realities of partisan base-beating. That would be sad to see, especially since justice reform is almost the only bipartisan issue we’ve got left in these bitter times.

Of course, for some that is itself a strong motive to kill the bill. They hardly even pretend to know or care about the content of the legislation itself.  Consider Jeffrey H. Anderson’s “What, are we the sort of people who work with Democrats?” rebuttal to my last essay for an example of this thinking....

[P]risons are beneficial primarily insofar as they keep dangerous people off the streets. That’s a huge benefit with respect to murderous psychopaths. Yet if we’re talking about minor, subsidiary figures in the drug trade, we should recognize they are easily replaced. Hitting small-time distributors or smugglers with decades-long sentences will not solve our drug problem.

Even recognizing those principles, it’s always best to be cautious about public safety. The Sentencing and Corrections Act is cautious. We certainly won’t be seeing the immediate release of thousands of drug criminals. Rather, the bill takes modest steps to soften some of the more drastic measures in federal drug laws.  Sean Kennedy’s recent missive cautioned against “rushing” conservative justice reform, but looking at the bill currently in front of us, I’m truly at a loss to imagine what might satisfy him if this does not....

If you’re unsure whom to trust in the justice-reform debate, consider this. Reform-minded conservatives have ideas, an agenda, and recent legislative accomplishments to their names. They’ve been elbow-deep in the relevant policy issues for many years now. By contrast, their critics can’t even seem to agree on the most fundamental point: is over-incarceration is actually a problem in America?

In many ways it’s unsurprising that this would be a fuzzy point for critics. Mass incarceration was the rock against which tough-on-crime finally foundered. For decades, conservatives called for tough, consistent sanctions as a response to rising crime and disorder. This approach did yield some benefits: crime fell through the ’80s and ’90s.

As prison populations exploded, however, the price tag likewise grew steeper, and the social effects of imprisoning about 1 percent of our population became ever harder to ignore. Crowded prisons are bad for any number of reasons. They’re miserable and unsafe (for guards as well as inmates), and they do a poor job of rehabilitating offenders.

Eventually, it became clear to policy-savvy conservatives that they needed a more multifaceted approach to crime control. Red states have been leading the way for years now in using data-driven methods to reduce incarceration without sacrificing public safety. Many of the same people and organizations have helped to craft and promote federal sentencing reform, eventually giving rise to the Sentencing Reform and Corrections Act.

As policy, it’s been an impressive effort. Politically, it requires a paradigm shift that some haven’t yet made. As the data pile up indicating that prudent reform is possible, William Otis has gone on defending large-scale incarceration, regularly repeating his maxim that a nation is judged not by its incarceration rate, but by its crime rate. That no-limit position is too drastic for most, so we see figures like Kennedy and Anderson taking softer but more confusing stances, vacillating between tough-on-crime rhetoric and vague complaints that the legislation in front of us is too quick, too drastic or too bipartisan.

Kennedy warns us, in the spirit of Otis’ critique, that the real problem with our society is the number of criminals, not the number of inmates. Then he goes on to imply that state-level justice reform has been healthy but that the federal bill somehow goes too far. (How? Why? What provisions would he change?)

Anderson implies that federal sentencing reform represents an irresponsible lapse of conservative principles, but then later concedes that some reform may be good, on the condition that we scrap the present bill and replace it with exclusively Republican-authored legislation. (Why would we do that when reform-interested conservatives have been involved in writing and promoting this bill?)

It’s hard to have a serious debate when critics are bringing so little to the table.  Through promoting successful state-level reforms, conservative justice reformers have demonstrated that they are prudent, cautious, and highly attentive to data.  Unless critics can offer something more substantive than dated political platitudes, we should trust that this statute is moving us a step in the right direction.

June 13, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0)

SCOTUS finds no Sixth Amendment problems with reliance on uncounseled tribal conviction

The Supreme Court gave federal prosecutors a unanimous win this morning through its opinion in US v. Bryant, No.15-420 (S. Ct. June 13, 2016) (available here). The opinion by Justice Ginsburg for the Court gets started this way:

In response to the high incidence of domestic violence against Native American women, Congress, in 2005, enacted 18 U. S. C. §117(a), which targets serial offenders.  Section 117(a) makes it a federal crime for any person to “commi[t] a domestic assault within . . . Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.”  See Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA Reauthorization Act), Pub. L. 109–162, §§901, 909, 119 Stat. 3077, 3084.1 Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions, he was sentenced to terms of imprisonment, none of them exceeding one year’s duration. His tribal-court convictions do not count for §117(a) purposes, Bryant maintains, because he was uncounseled in those proceedings.

The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed.  Scott v. Illinois, 440 U. S. 367, 373–374 (1979).  But the Sixth Amendment does not apply to tribal-court proceedings.  See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U. S. 316, 337 (2008).  The Indian Civil Rights Act of 1968 (ICRA), Pub. L. 90–284, 82 Stat. 77, 25 U. S. C. §1301 et seq., which governs criminal proceedings in tribal courts, requires appointed counsel only when a sentence of more than one year’s imprisonment is imposed.  §1302(c)(2).  Bryant’s tribal-court convictions, it is undisputed, were valid when entered.  This case presents the question whether those convictions, though uncounseled, rank as predicate offenses within the compass of §117(a).  Our answer is yes.  Bryant’s tribal-court convictions did not violate the Sixth Amendment when obtained, and they retain their validity when invoked in a §117(a) prosecution.  That proceeding generates no Sixth Amendment defect where none previously existed.

June 13, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Friday, June 10, 2016

Two SCOTUS reslists concerning Johnson's application to the career-offender guideline worth keeping an eye on

This week's entry in the always amusing and informative Relist Watch SCOTUSblog posting by John Elwood has flagged two cases of note for sentencing fans, especially for those especially interested in the continued fall-out from the Supreme Court's big Johnson vagueness ruling last year.  I will reprint, with all the humor and links, Elwood's coverage of these cases:

Our next new relist is Jones v. United States, 15-8629. No, not that one.  Not that one either.  Or that.  Now you’re trying my patience.  Can we just agree it’s a pretty common case caption?  And indeed, this case has been up to the Court once before.  The petitioner in Jones was sentenced to about twenty-one years’ imprisonment under the residual clause of the U.S. Sentencing Guidelines’ career-offender provision.  During its last trip to One First Street, the Court granted cert., vacated the judgment, and remanded (“GVR”) in light of Johnson v. United States, which declared an identically worded residual clause in the Armed Career Criminal Act (“ACCA”) unconstitutionally vague and therefore void.  On remand, the Third Circuit determined that Johnson was inapplicable because Jones’s career-offender designation relied not on the residual clause, but on its “Application Note,” which specifically lists robbery as a predicate offense.  During Jones’s stay in the Third Circuit, the Court held in Welch v. United States that Johnson announced a new substantive constitutional rule that applies retroactively to ACCA cases on collateral review.  Jones poses three questions: (1) whether Johnson applies retroactively to collateral cases challenging the residual clause of the Guidelines’ career-offender provision; (2) whether Johnson applies to and invalidates the Guidelines’ residual clause; and (3) whether Jones’s robbery conviction qualifies as a “crime of violence” under the residual clause based on the clause’s Application Note, “even though [the Note] does not interpret and conflicts with the text of the guideline.”

Jones, unsurprisingly, is not one of a kind: It has a doppelganger, Beckles v. United States, 15-8544, which is nearly identical right down to the GVR and raises the same three questions (except that Beckles’s third question presented involves possession of a sawed-off shotgun). Both the Jones and Beckles petitions assert urgency because of the Antiterrorism and Effective Death Penalty Act’s one-year bar: “Prompt resolution of these issues is required because the one-year statute of limitations governing collateral Johnson claims will expire on June 26, 2016,” the petitioners say, adding that “a per curiam opinion on these issues without full briefing or oral argument may be appropriate.” The government opposes cert. because, among other things, the Sentencing Commission has adopted a Guidelines amendment, likely taking effect on August 1, 2016, that deletes the residual clause from the guideline in light of the Court’s concerns in Johnson: “The question of Johnson’s application to the current career offender guideline is therefore likely to be of no continuing importance.”   Both cases got something of a late boost when the Fourth Circuit deepened the split on Wednesday....

 

15-8629

Issue: (1) Whether Johnson v. United States announced a new substantive rule of constitutional law that applies retroactively on collateral review to challenges of sentences imposed under the residual clause in United States Sentencing Guidelines career offender provision, U.S.S.G. § 4B1.2(a)(2); (2) whether Johnson's constitutional holding applies to U.S.S.G. § 4B1.2(a)(2)'s identical residual clause thus rendering that provision void; and (3) whether Petitioner's Pennsylvania conviction for robbery by force however slight is a “crime of violence” because it is listed in the commentary to U.S.S.G. § 4B1.2, even though it does not interpret and conflicts with the text of the guideline, after Johnson.

(relisted after the June 2 Conference)

 

15-8544

Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

(relisted after the June 2 Conference)

June 10, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Split Seventh Circuit panel debates import and impact of jury finding of drug quantity rejected by the judge at sentencing

A helpful reader altered me to an interesting Seventh Circuit ruling today in US v. Saunders, No. 13-3910 (7th Cir. June 10, 2016) (available here). These passages from the partial dissent authored by Judge Manion provides a reasonable look into why this split panel's sentencing work is blog-worthy:

The jury in this case found beyond a reasonable doubt that the drug amount was between 100 grams and 1 kilogram.  This necessarily implies that the jury found the offense did not involve 3.69 kilograms, but at sentencing, the district court found a 3.69-kilogram amount.  These findings are irreconcilable.  By its finding, the district court overrode the jury’s decision. The Sixth Amendment does not allow this.  I dissent from this aspect of the court’s decision, but join in all other aspects....

A straightforward reading of the jury-verdict form does not allow this court to find an “effective acquittal.”  The jury does not — in a single sentence, passing judgment on one count — actually convict and effectively acquit.  Here, the jury convicted Saunders and Bounds of a capped drug quantity, and its verdict should stand....

In its ruling today, the court affirms the district court’s application of Watts to this case.  It should not.  Watts stands for the simple principle that a sentencing court may consider conduct underlying an acquitted charge if that underlying conduct is proven by a preponderance of the evidence. Watts, 519 U.S. at 157.  Watts is therefore factually and legally distinguishable from this case. Instead of an acquittal, this case features an affirmative jury finding of fact.  An acquittal is a legal conclusion, “not a finding of any fact,” and it “can only be an acknowledgment that the government failed to prove an essential element of the offense beyond a reasonable doubt.” See id. at 155 (internal quotation marks omitted)....

As the Supreme Court observed [in Watts], “That [acquittal] verdict does not preclude a finding by a preponderance of the evidence that the defendant did, in fact, use or carry such a weapon, much less that he simply possessed the weapon in connection with a drug offense.” Id. at 157 (emphasis in original).  In contrast, the two results in this case cannot square: the defendants cannot have (1) possessed less than 1 kilogram and (2) also possessed 3.69 kilograms. By flatly contradicting the jury’s express factual finding, the sentencing judge in this case violated the Sixth Amendment rights of Saunders and Bounds.  And if the jury system is to mean anything, this outcome is a problem.

June 10, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, June 09, 2016

US Sentencing Commission provides notice of proposed 2017 priorities and requests comment

The US Sentencing Commission has now posted here a "notice to identify tentative priorities for the amendment cycle ending May 1, 2017."  The notice lists a dozen tentative priorities, and here are what I consider highlight from the list:

(1) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c), and to develop appropriate guideline amendments in response to any related legislation.

(2) Continuation of its multi-year examination of the overall structure of the guidelines post-Booker, possibly including recommendations to Congress on any statutory changes and development of any guideline amendments that may be appropriate. As part of this examination, the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.

(3) Continuation of its study of approaches to encourage use of alternatives to incarceration, including possible consideration of amending the Sentencing Table in Chapter 5, Part A to consolidate and/or expand Zones A, B, and C, and any other relevant provisions in the Guidelines Manual.

(4) Continuation of its multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction (e.g., “crime of violence,” “aggravated felony,” “violent felony,” “drug trafficking offense,” and “felony drug offense”) and the impact of such definitions on the relevant statutory and guideline provisions (e.g., career offender, illegal reentry, and armed career criminal), possibly including recommendations to Congress on any statutory changes that may be appropriate and development of guideline amendments that may be appropriate.

(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study....

(8) Study of the operation of Chapter Four, Part A of the Guidelines Manual, including (A) the feasibility and appropriateness of using the amount of time served by an offender, as opposed to the sentence imposed, for purposes of calculating criminal history under Chapter Four; and (B) the treatment of revocation sentences under §4A1.2(k)....

(12) Consideration of any miscellaneous guideline application issues coming to the Commission’s attention from case law and other sources, including possible consideration of whether a defendant’s denial of relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of §3E1.1.

The Commission hereby gives notice that it is seeking comment on these tentative priorities and on any other issues that interested persons believe the Commission should address during the amendment cycle ending May 1, 2017. To the extent practicable, public comment should include the following: (1) a statement of the issue, including, where appropriate, the scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority. [Public comment should be received by the Commission on or before July 25, 2016.]

June 9, 2016 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

SCOTUS overturns Pennsylvania death sentence because involved DA who became state justice did not recuse

A death row defendant in the Keystone State got a key win on a judicial bias claim from SCOTUS this morning in Williams v. Pennsylvania, No. 15-5040 (S. Ct. June 9, 2016) (available here). Justice Kennedy authored the opinion for the Court, while Chief Justice Roberts dissented in an opinion Justice Alito joined and Justice Thomas authored his own dissenting opinion. Here is how the Court's opinion gets started: 

In this case, the Supreme Court of Pennsylvania vacated the decision of a postconviction court, which had granted relief to a prisoner convicted of first-degree murder and sentenced to death.  One of the justices on the State Supreme Court had been the district attorney who gave his official approval to seek the death penalty in the prisoner’s case.  The justice in question denied the prisoner’s motion for recusal and participated in the decision to deny relief.  The question presented is whether the justice’s denial of the recusal motion and his subsequent judicial participation violated the Due Process Clause of the Fourteenth Amendment.

This Court’s precedents set forth an objective standard that requires recusal when the likelihood of bias on the part of the judge “‘is too high to be constitutionally tolerable.’” Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 872 (2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).  Applying this standard, the Court concludes that due process compelled the justice’s recusal.

June 9, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Win for defendant (and a loss for Puerto Rico, I suppose) in SCOTUS Double Jeopardy case

An interesting array of opinions resulted today from the Supreme Court in an interesting case coming from Puerto Rico addressing Double Jeopardy protections. Justice Kagan wrote the Court's opinion in Puerto Rico v. Sanchez Valle, No. 15-108 (S. Ct. June 9, 2016) (available here); Justices Ginsburg and Thomas both authored concurring opinions, and Justice Breyer (joined by Justice Sotomayor) authored the chief dissent. Here is how the opinion for the Court gets started:

The Double Jeopardy Clause of the Fifth Amendment prohibits more than one prosecution for the “same offence.”  But under what is known as the dual-sovereignty doctrine, a single act gives rise to distinct offenses—and thus may subject a person to successive prosecutions — if it violates the laws of separate sovereigns.  To determine whether two prosecuting authorities are different sovereigns for double jeopardy purposes, this Court asks a narrow, historically focused question.  The inquiry does not turn, as the term “sovereignty” sometimes suggests, on the degree to which the second entity is autonomous from the first or sets its own political course.  Rather, the issue is only whether the prosecutorial powers of the two jurisdictions have independent origins — or, said conversely, whether those powers derive from the same “ultimate source.” United States v. Wheeler, 435 U.S. 313, 320 (1978).

In this case, we must decide if, under that test, Puerto Rico and the United States may successively prosecute a single defendant for the same criminal conduct.  We hold they may not, because the oldest roots of Puerto Rico’s power to prosecute lie in federal soil.

Justice Breyer's dissent starts by explaing that his "reasons for disagreeing with the majority are in part conceptual and in part historical."

June 9, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (21)

Unpacking the (never-simplistic and never-certain) stories of state crimes and incarceration levels

This new Atlantic story, headlined "Crime Is Down, Sort Of: New stats on U.S. imprisonment rates suggest a complicated future for criminal-justice reform," provides a usefully nuanced account of this new Brennen Center report titled simply "Update: Changes in State Imprisonment Rates." Here first is what the Brennan Center sets up its report: 

Today, there are 2.3 million people in the nation’s prisons and jails — a 500 percent increase over the last forty years. With almost one in 100 American adults behind bars, our incarceration rate is the world’s highest. This fact sheet provides an update to findings on state imprisonment trends originally outlined in The Reverse Mass Incarceration Act. It analyzes data from all 50 states on imprisonment and crime from 2006 (as bipartisan criminal justice reforms generally began around 2007) through 2014 (the most recent year of data).

Two overarching findings:

1. Many argue that increased incarceration is necessary to reduce crime.  Yet the data shows the opposite.  Over the last ten years, 27 states have decreased both crime and imprisonment.  Not only is this trend possible, it’s played out in the majority of states. Nationally, imprisonment and crime have fallen together, 7 percent and 23 percent respectively since 2006.  Crime continued its downward trend while incarceration also decreased.

2. In recent years, states in the South have seen some of the largest decreases in imprisonment.  Yet, they also remain the largest incarcerators in the country.  Mississippi reduced imprisonment by 10 percent but still has the nation’s 5th highest incarceration rate.  Texas has reduced imprisonment by 15 percent yet still has the 7th highest imprisonment rate in the country.

And here is a snippet from the Atlantic's discussion of the report:

Many Americans might make a basic mathematical error in looking at the country’s criminal-justice system: They assume more people in jail or prison always equals less crime, and more crime necessarily calls for putting more people behind bars. Both conclusions are wrong. A new report from the Brennan Center for Justice provides some illuminating data on this point.

The report’s most fascinating finding is that imprisonment and overall crime rates were down 7 percent and 23 percent, respectively, from 2006 to 2014. “States will continue to decrease imprisonment slowly; we might perhaps see crime leveling out,” Chettiar said. “Criminologists say we have reached an all-time low in crime. I expect we’ll continue to see low crime and lowered imprisonment rates.”...

In the analysis, high achievers included Rhode Island, New Jersey, Hawaii, Nebraska, Connecticut, California, Colorado, and South Carolina. All saw double-digit drops in their rates of imprisonment per 100,000 residents. That does not necessarily indicate a dramatic drop in the actual number of people behind bars—an overall decrease in the rate at which a state imprisons people can result from many factors, including the release of current inmates, diversion efforts to keep those arrested out of jail, and the reclassification of low-level crimes that may let some offenders bypass custody....

In terms of overall crime, Vermont, Minnesota, Pennsylvania, North Carolina, Illinois, Maryland, and Louisiana reduced their rates most. Each saw a decrease of 30 percent or more in their crime rates per 100,000 residents. States such as New Hampshire, North Dakota, and South Dakota each saw big increases in their in crime rates, all 30 percent or higher.

As policymakers are paying increased attention to the shortcomings of the criminal-justice system and more citizens seem to accept the need for policy changes, these facts suggest reform will look very different in different states—and above all, it will be complicated.

June 9, 2016 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"

The Room for Debate section of the New York Times has this new set of notable commentaries discussing whether the judicial recall effort in the controversial Standford sexual assault sentencing case is a good idea.  Here is the section's set up:

A California judge sentenced Brock Allen Turner to only six months in jail for raping an unconscious woman after a Stanford University fraternity party, despite her angry, eloquent, courtroom denunciation of the way she and other rape survivors are treated.  In response, a petition was started to hold a recall election to throw him off the bench.

But should judges be subject to recall because of an unpopular sentence or would that impede their independence?

Here are the contributions, with links via the commentary titles:

June 9, 2016 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Wednesday, June 08, 2016

Sixth Circuit on the drug war, immigrant crime, ineffective assistance, jury nullification, Alexander Hamilton and a circuit split all in seven pages

Long-time readers likely realize I do not cover federal circuit court rulings in this space nearly as much as I did in the early days after Blakely and Booker, largely because many of the federal sentencing issues that now occupy circuit have become of late much more settled (or, at times, just much more borring).  But a great little  new Sixth Circuit panel ruling today in Lee v. US, No. 14-5369 (6th Cir. June 8, 2016) (available here), reminded me of why I still make a regular habit of, and can sometime be greatly rewarded by, taking the time to see what the circuit courts are saying in criminal appeals.  As the title of this post highlights, there is a lot of "there there" in the short panel opinion in Lee, and I hope these snippets (with some cites omitted) will encourage everyone to check out the full opinion:

The case against him was very strong.  A government witness was prepared to testify that he had purchased ecstasy from Lee on a number of occasions, dozens of pills were discovered during a lawful search of Lee’s home, and Lee himself admitted not only that he had possessed ecstasy, but also that he had distributed the drug to his friends. In light of this, Lee’s trial attorney advised him to plead guilty in exchange for a lighter sentence.

Here’s the wrinkle: even though he has lived in the United States for decades, Lee, unlike his parents, never became an American citizen, and though he did eventually plead guilty, he did so only after his lawyer assured him that he would not be subject to deportation — “removal,” in the argot of contemporary immigration law.  This advice was wrong: possession of ecstasy with intent to distribute is an “aggravated felony,” rendering Lee deportable.  Lee understandably does not want to be deported, and he filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255, contending that he received ineffective assistance of counsel....

[T]he district court’s conclusion that the evidence of guilt was “overwhelming” is not clearly erroneous, and deportation would have followed just as readily from a jury conviction as from a guilty plea. Thus, aside from the off chance of jury nullification or the like, Lee stood to gain nothing from going to trial but more prison time. On the other hand, for those such as Lee who have made this country their home for decades, deportation is a very severe consequence, “the equivalent of banishment or exile,” as the Supreme Court memorably put it.  As a factual matter, we do not doubt Lee’s contention that many defendants in his position, had they received accurate advice from counsel, would have decided to risk a longer prison sentence in order to take their chances at trial, slim though they were.

But would such a decision be “rational”? Several courts, including this circuit, have said “no”: being denied the chance to throw “a Hail Mary” at trial does not by itself amount to prejudice.... Others have reached the opposite conclusion....  We have no ability, of course, as a panel, to change camps. A nd in that sense, this is a straightforward case. In Pilla we held that no rational defendant charged with a deportable offense and facing “overwhelming evidence” of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.   Lee finds himself in precisely this position, and he must therefore lose. But given the growing circuit split (which, as best we can tell, has gone unacknowledged), we think it worthwhile to explain why we are convinced that our approach is the right one and to set out the role that we believe deportation consequences should play in evaluating prejudice under Strickland.

We begin, however, by giving the other side its due. As the Seventh Circuit noted in DeBartolo, strong evidence of guilt does not strip a defendant of his right to a jury trial, nor does it guarantee a guilty verdict.  The second point is especially true for defendants such as Lee, since it is well documented that many jurors are willing to acquit those charged with a first-time, non-violent drug offense, despite evidence of guilt. See id. (quoting Lawrence D. Bobo & Victor Thompson, Racialized Mass Incarceration: Poverty, Prejudice, and Punishment, in Doing Race: 21 Essays for the 21st Century 343 (Hazel R. Markus & Paula Moya eds., 2010)).

This possibility, at least according to many of this nation’s founders, is not a defect, but a feature of the jury system.  See, e.g., 2 John Adams, The Works of John Adams 254–55 (1850) (“It is not only [the juror’s] right, but his duty . . . to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” (Diary Entry, February 12, 1771)).  Indeed, the unreviewable power of juries to acquit, despite strong evidence of guilt, was perhaps the central reason why the right to a jury trial in criminal cases was enshrined in the Constitution.  See Rachel E. Barkow, Criminal Trials, in The Heritage Guide to the Constitution 340, 340–41 (David F. Forte & Matthew Spalding, eds. 2nd ed. 2014).  For the framers and ratifiers, the memory of how King George III had prevented colonial juries from nullifying unpopular English laws by “expand[ing] the jurisdiction of nonjury courts” was still fresh. Id. at 340.  And one of the grievances listed in the Declaration of Independence was that the King had “depriv[ed] us in many cases, of the benefits of Trial by Jury.”  Declaration of Independence para. 20 (U.S. 1776).  It is thus not surprising that nearly all commentators active during the time of the founding favored the inclusion in the new Constitution of the right to a jury trial. See, e.g., The Federalist No. 83, at 432–33 (Alexander Hamilton) (The Gideon ed., George W. Carey & James McClellan eds., Liberty Fund 2001) (“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.”).

June 8, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Florida Supreme Court grapples with post-Hurst hydra and state's new capital punishment procedures

Download (1)As reported in this local article, headlined "Justices Try To Sort Out Death Penalty Law," the top judges in the Sunshine State yesterday heard oral argument in a case that requires them to find some clarity in the dark uncertainty concerning the constitutional requirements for death sentencing in the wake of the Supreme Court's Hurst ruling. Here are the details:

The Florida Supreme Court on Tuesday heard arguments in a case focused on whether the state’s new death penalty law is constitutional, and, if so, whether it applies to cases already in the pipeline when the law passed in March.

Tuesday’s hearing was the latest in the court’s months-long scrutiny prompted by a U.S. Supreme Court decision in January that struck down Florida’s death-penalty sentencing process because it unconstitutionally gave too much power to judges, instead of juries.

But the arguments Tuesday in the case of Larry Darnell Perry, who was convicted in the 2013 murder of his infant son, did little to clear up the murky situation surrounding the January ruling, in a case known as Hurst v. Florida, or the new law, hurriedly crafted by lawmakers and signed by Gov. Rick Scott in response to the decision.

“Clearly at this stage in our jurisprudence, we want to make sure that the statute is construed in a constitutional manner so that we don’t have another 15 years of death penalty — if the state wants the death penalty, which apparently it does — in flux,” Justice Barbara Pariente said.

Under Florida’s old law, jurors by a simple majority could recommend the death penalty. Judges would then make findings of fact that “sufficient” aggravating factors, not outweighed by mitigating circumstances, existed for the death sentence to be imposed. That system was an unconstitutional violation of the Sixth Amendment right to trial by jury, the U.S. Supreme Court decided in an 8-1 ruling.

Florida’s new law requires juries to unanimously determine “the existence of at least one aggravating factor” before defendants can be eligible for death sentences. The law also requires at least 10 jurors to recommend the death penalty in order for the sentence to be imposed.

Of nearly three dozen states that have the death penalty, Florida is one of just three — including Alabama and Delaware — that do not require unanimous recommendations for a sentence of death. The lack of a unanimous recommendation — a flashpoint for lawmakers, prosecutors and defense lawyers during debate on the new law — was the focus of much of Tuesday’s hearing in the Perry case.

Because Florida’s Constitution requires that jury verdicts be unanimous for convictions, defense lawyers have argued that the death penalty should require a unanimous jury recommendation. Prosecutors, including Attorney General Pam Bondi’s office, disagree.

Chief Justice Jorge Labarga honed in on the issue Tuesday morning. “As you know, 32 states in our country have the death penalty. There are three states who are outliers in this country, Alabama, Delaware and Florida that only require something less than unanimous. … What is the history of Florida in requiring a unanimous verdict?” Labarga asked Martin McClain, a lawyer who has represented more than 250 defendants condemned to death and who made arguments Tuesday as a “friend of the court.” “It’s always been that way in Florida. Since before it was a state, Florida required unanimity in criminal cases for convictions,” McClain replied.

Since the Jan. 12 Hurst ruling, Florida’s high court indefinitely put on hold two executions and heard arguments in more than a dozen death penalty cases, repeatedly asking lawyers on both sides about the impact of the U.S. Supreme Court decision. The Florida court has yet to rule on whether the Hurst decision should be applied retroactively to all, or even some, of Florida’s 390 Death Row inmates.

Perry’s case, meanwhile, hinges on whether the new law should apply to defendants whose prosecutions were underway when the new law went into effect.  While Perry’s lawyer, J. Edwin Mills, argued that the new law should not apply in his client’s case, other defense lawyers are split on the issue. Mills contends his client should receive a life sentence.

Adding more pressure to the justices — who spend much of their time considering appeals in capital cases — lower courts have delayed hearings or decisions in death penalty cases while waiting for Florida Supreme Court to rule, both on the impact of the Hurst decision and on the Perry case.  “Until we get moving forward again, and get a determination from this court as to what Hurst actually means, everything is just sort of up in the air, which is not a good solution for anybody,” Assistant Attorney General Carol Dittmar told the justices Tuesday.

June 8, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, June 07, 2016

"The Eighth Amendment's Lost Jurors: Death Qualification and Evolving Standards of Decency"

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

The Supreme Court’s inquiry into the constitutionality of the death penalty has overlooked a critical “objective indicator” of society’s “evolving standards of decency”: the rate at which citizens are excluded from capital jury service under Witherspoon v. Illinois due to their conscientious objections to the death penalty.  While the Supreme Court considers the prevalence of death verdicts as a gauge of the nation’s moral climate, it has ignored how the process of death qualification shapes those verdicts.  This blind spot biases the Court’s estimation of community norms and distorts its Eighth Amendment analysis.

This paper presents the first quantitative study of Witherspoon strikes in real capital cases, measuring the strike rate in eleven Louisiana trials resulting in death verdicts from 2009 to 2013.  Of the 1,445 potential jurors questioned, 325 individuals (22.5%) were excluded from service on the basis of their opposition to the death penalty.  These exclusions had a considerable impact on the racial composition of the jury pool: In the trials for which individualized data on race was available, one-third of black venire members were struck under Witherspoon, and nearly 60% of those struck on this basis were black.  These findings underscore the profound impact of death qualification upon the composition of capital juries and the outcomes of capital trials.  Particularly in the wake of Justice Breyer’s recent call for reconsideration of the death penalty’s constitutionality, there is an urgent need for (a) systematized, ongoing data collection on Witherspoon strikes, and (b) formal consideration of the effect of death qualification in future Eighth Amendment analysis.

June 7, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Minnesota survey suggests marijuana reform can help with opioid issues ... and other recent highlights from Marijuana Law, Policy & Reform

Anyone interested and concerned about the so-called "war on drugs" or the relationship between criminal justice reform and public health has to be concerned these days with the national opioid problems.  And one of many reasons I am a supporter of state experiements with various forms of marijuana reform is my hope that such reforms might be one of many ways to try to address opioid problems.  Consequently, I was very intrigued to see the details of a lengthy report on a survey done by the Minnesota Department of Health (here in full) showing that a number of health care practitioners reported that some medical patients were able to decrease their use of prescription opioids.   I report on this report in the first of the links below providing recent highlights from my Marijuana Law, Policy & Reform blog: 

June 7, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

New York Times editorial calls for "federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights"

This new New York Times editorial, headlined "To Stop Bad Prosecutors, Call the Feds," call for improving state criminal justice systems by having more federal oversight of those system. Here is the full editorial, concerning which I am eager to hear reactions:

Prosecutors are the most powerful players in the American criminal justice system.  Their decisions — like whom to charge with a crime, and what sentence to seek — have profound consequences.  So why is it so hard to keep them from breaking the law or violating the Constitution?

The short answer is that they are almost never held accountable for misconduct, even when it results in wrongful convictions.  It is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights.  There is a successful model for this in the Justice Department’s monitoring of police departments with histories of misconduct.

Among the most serious prosecutorial violations is the withholding of evidence that could help a defendant prove his or her innocence or get a reduced sentence — a practice so widespread that one federal judge called it an “epidemic.”  Under the 1963 landmark Supreme Court case Brady v. Maryland, prosecutors are required to turn over any exculpatory evidence to a defendant that could materially affect a verdict or sentence.  Yet in many district attorneys’ offices, the Brady rule is considered nothing more than a suggestion, with prosecutors routinely holding back such evidence to win their cases.  

Nowhere is this situation worse than in Louisiana, where prosecutors seem to believe they are unconstrained by the Constitution.  This month, the Supreme Court will consider the latest challenge to prosecutorial misconduct in Louisiana in the case of David Brown, who was one of five men charged in the 1999 murder of a prison guard.  Mr. Brown said he did not commit the murder, but he was convicted and sentenced to death anyway.  Only later did his lawyers discover that prosecutors had withheld the transcript of an interview with another prisoner directly implicating two other men — and only those men — in the murder.  This is about as blatant a Brady violation as can be found, and the judge who presided over Mr. Brown’s trial agreed, throwing out his death penalty and ordering a new sentencing.  But the Louisiana Supreme Court reversed that decision, ruling that the new evidence would not have made a difference in the jury’s sentence.

David Brown’s case is a good example of how every part of the justice system bears some responsibility for not fighting prosecutorial misconduct.  State courts often fail to hold prosecutors accountable, even when their wrongdoing is clear.  Professional ethics boards rarely discipline them.  And individual prosecutors are protected from civil lawsuits, while criminal punishment is virtually unheard of.  Money damages levied against a prosecutor’s office could deter some misconduct, but the Supreme Court has made it extremely difficult for wrongfully convicted citizens to win such claims.

This maddening situation has long resisted a solution. What would make good sense is to have the federal government step in to monitor some of the worst actors, increasing the chance of catching misconduct before it ruins peoples’ lives. The Justice Department is already authorized to do this by a 1994 federal law prohibiting any “pattern or practice of conduct by law enforcement officers” that deprives a person of legal or constitutional rights.

The department has used this power to monitor police departments in Los Angeles, New Orleans, Detroit and Seattle, among other municipalities with a history of brutality, wrongful arrests, shootings of unarmed civilians and other illegal or unconstitutional practices.  For the most part, the results have been positive.  Since prosecutors are also “law enforcement officers,” there is no reason they and their offices should be immune from federal oversight.

Of course, many district attorneys’ offices will balk at being put under a federal microscope.  But nothing else has worked to prevent misconduct by prosecutors, and the Justice Department is uniquely equipped to ferret out the worst actors and expose their repeated disregard for the law and the Constitution.

Because I do not closely follow local police practices or federal oversight of local police departments, I am not in a position to question (or concur with) the editorial's assertion that "for the most part, the results have been positive" from DOJ's monitoring of some big-city police departments. But even if DOJ has been generally successful at supervising problematic police practices, I am not certain that this means that it could or would be successful at supervising problematic prosecutorial practices. At the same time, there is good reason to be concerned that, at least in some local jurisdictions, it does seem that "nothing else has worked to prevent misconduct by prosecutors."

Personally, I would generally favor a "sunlight is the best disenfectant" approach to dealing with forms of significant lawyer misconduct: how about the feds calling for states to maintain public on-line registries of all public lawyers (both prosecutors and defense attorneys) who clearly have been found guilty of unconstitutional/unethical behavior. I suspect all criminal lawyers now know just how troublesome it can be to have an "on-line record," and so maybe the threat of such a record of misconduct will help deter such behavior in the first instance.

June 7, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Is SCOTUS essentially telling Alabama its capital punishment process in unconstitutional through Hurst GVRs?

The question in the title of this post is prompted by this notable new local article headlined "For third time in 5 weeks, Supreme Court tells Alabama to reconsider death row case." Here are excerpts:

For the third time in five weeks, the U.S. Supreme Court has told an Alabama appeals court to reconsider an Alabama death row inmate's appeal in light of the Supreme Court's ruling earlier this year striking down Florida's capital punishment scheme.

Two Alabama attorneys said Monday that the moves by the high court indicate justices may be looking at striking down Alabama's death sentencing scheme as unconstitutional. "Personally, I think its crystal clear the Supreme Court has real concerns about the constitutionality of our current death penalty and is clearly putting us on notice of that fact," said Birmingham attorney John Lentine.

Bryan Stevenson, executive director and founder of the Equal Justice Initiative in Montgomery, also stated in an email to AL.com on Monday that "we believe it's now very clear that the U.S. Supreme Court recognizes that Alabama's death penalty scheme is called into question following the Court's ruling in Hurst v. Florida earlier this year. There have been serious flaws in Alabama's process of imposing the death penalty for several years and state courts are going to have to now confront these problems."

The U.S. Supreme Court on Monday remanded the case of Alabama Death Row inmate Ronnie Kirksey back to the Alabama Court of Criminal Appeals for reconsideration of his appeal in light of the Hurst v. Florida decision in January.  The U.S. Supreme Court last month had also ordered the Alabama Court of Criminal Appeals to reconsider its decision in the appeals of Corey Wimbley and Bart Johnson in light of the Florida case....

At issue with Alabama's death penalty scheme is that Alabama permits judges to override a jury's recommendation for a life sentence and impose death. Alabama was one of only three states that allowed such an override. The others were Florida and Delaware. Legislators in Florida's legislature re-wrote its capital punishment sentencing law this spring.

Jefferson County Circuit Judge Tracie Todd in March ruled in four of her capital murder cases that Alabama's capital punishment sentencing scheme is unconstitutional based on the Hurst case. The Alabama Attorney General's Office has appealed Todd's ruling. The decision was spurred by the U.S. Supreme Court's ruling in January that Florida's sentencing scheme allowing judges to override juries in death penalty cases is unconstitutional. Alabama has a similar sentencing scheme.

A number of attorneys around the state have challenged on behalf of their clients the constitutionality of Alabama's capital murder sentencing scheme based on the Florida ruling. All but Todd, however, denied those requests.  District attorneys and Alabama Attorney General Luther Strange have said Alabama's law is not the same as Florida's.

First, Alabama's sentencing scheme was ruled constitutional in 1995 by the U.S. Supreme Court, state prosecutors say. They also have pointed out that the high court held in the Florida case that a jury must find the aggravating factor in order to make someone eligible for the death penalty. Alabama's system already requires the jury to do just that, according to an Alabama Attorney General's statement.

A few prior related posts:

June 7, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

GOP Rep Labrador predicts "we’re going to see some of the greatest reforms in a generation" emerging from Congress

Raul-LabradorSomeone should be collecting all the big talk we have heard from elected officials and pundits about the ground-breaking criminal justice reforms that are purportedly soon to happen in Congress (and, so far, just never quite seem to happen).  As noted in this prior post, at least one notable commentatory was saying in summer 2013 that "momentum for sentencing reform could be unstoppable."  Three years later, as reported in this local article discussing comments at a sentencing reform symposium, one notable member of Congress is still talking about momentum continuing to build:

Idaho GOP Rep. Raul Labrador says momentum is building in Congress for major criminal justice reforms aimed at reversing decades of focus on long prison terms that hit even nonviolent and first-time offenders. “I believe that we’re going to see some of the greatest reforms in a generation,” Labrador told a criminal justice reform conference at Concordia University School of Law in Boise on Monday. “Momentum is building for reform. This Congress alone, I’ve already met with President Obama twice. … This is actually one area that I think I can work with the president.”

Labrador, a Republican and tea party favorite, last year co-sponsored major, bipartisan reform legislation, but it didn’t advance. This year, a less ambitious bill is pending in both houses that includes some of the same provisions, including giving judges more discretion on whether to impose mandatory minimum sentences. “We only have 5 percent of the world’s population in the United States, and the U.S. is home to 25 percent of the world’s prison population,” Labrador said. “We should not be proud of that.”

That bill and several others have cleared the House Judiciary Committee, Labrador said, “and House Speaker Paul Ryan has expressed his support for the movement and has promised me to bring a reform package to the floor for a vote this year.”

It hasn’t happened yet, and Labrador acknowledged that hopes are fading as more of the year passes by. “It’s a little bit watered down,” he said. “They had to look at the political reality, what can pass in the Senate and the House.”

Still, he pledged to continue to push the issue, one that Labrador, an immigration and criminal defense attorney, said he started work on as soon as he arrived in Congress.

Here are some more quotes of note that emerged from this Concordia University School of Law sentencing conference:

“Eighty percent of federal drug prisoners have no history of violence, and more than 25 percent have no criminal history at all,” said Alex Kreit, professor at the Thomas Jefferson School of Law in San Diego and an expert and textbook author on controlled substances and marijuana regulation. “This, in a nutshell, is what is driving interest in federal drug sentencing reform.” Half of the federal prison population consists of drug offenders, Kreit said, though they comprise only a quarter of those admitted each year. “Part of that is the lengthy drug sentences that we have.”

Though some reforms have happened, notably congressional action in 2010 to reduce the disparity between crack cocaine and powdered cocaine sentences, federal drug sentencing laws remain largely unchanged. “I think there are a lot of people coalescing around the idea that what we have been doing hasn’t worked in the way we wanted it to work, said Wendy Olson, U.S. Attorney for Idaho. “I think all of us in criminal justice have an obligation to look at that.”

U.S. District Judge B. Lynn Winmill said his 28 years on the bench have shown him that the war on drugs has been “an abysmal failure – we certainly have not reduced drug consumption. Whatever has happened, it has not been worth the price that we have paid.”

He said its casualties have largely been low-level drug offenders who were associated with large quantities of drugs – couriers, truck drivers, addicts hired to unload trucks. “Kingpins are almost immune, in the same way that generals and commanders in chief are typically immune during wars,” Winmill said, “and if they are brought down, what happens is that they’re immediately replaced.”

Plus, though African-Americans and Hispanics use drugs at about the same rate as the general population, Winmill said, “The incarceration rate for African-Americans and Hispanics is off the charts. Now, is that implicit bias? Is it overt bias? Is it a result of a policy from Congress that reflects bias? I don’t know. But I think it certainly is something we need to think long and hard about.”

June 7, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4)

Monday, June 06, 2016

Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault

The recent lenient sentencing late last week of Stanford University student convicted of multiple counts of sexual assault has become a very big story today, and lots of folks across the political spectrum seem justifiably troubled by it.  This new New York Times article, headlined "Outrage in Stanford Rape Case Over Light Sentence for Attacker and Statement by His Father," provides some of the basics about the case and reactions to it:

A sexual assault case at Stanford University has ignited public outrage and a recall effort against a California judge after the defendant was sentenced to six months in a jail and his father complained that his son’s life had been ruined for “20 minutes of action” fueled by alcohol and promiscuity. In court, the victim had criticized her attacker’s sentence and the inequities of the legal process.

The case has made headlines since the trial began earlier this year but seized the public’s attention over the weekend after the accused, Brock Allen Turner, 20, a champion swimmer, was sentenced by Superior Court Judge Aaron Persky of Santa Clara County to what many critics denounced as a lenient stint in jail and three years’ probation for three felony counts of sexual assault.

The next day, BuzzFeed published the full courtroom statement [available here and recommended reading] by the woman who was attacked. The statement, a 7,244-word cri de coeur against the role of privilege in the trial and the way the legal system deals with sexual assault, has gone viral. By Monday, it had been viewed more than five million times on the BuzzFeed site. One of those readings happened live on CNN on Monday, when the anchor Ashleigh Banfield spent part of an hour looking into the camera and reading the entire statement live on the air.

The unidentified 23-year-old victim was not a Stanford student but was visiting the campus, where she attended a fraternity party. In the statement, she described her experience before and after the attack.

She argued that the trial, the sentencing and the legal system’s approach to sexual assault — from the defense lawyer’s questions about what she wore the night she was attacked to the light sentence handed down to her attacker — were irrevocably marred by male and class privilege. The trial privileged Mr. Turner’s well-being over her own, she said, and in the end declined to punish him severely because the authorities considered the disruption to his studies and athletic career at a prestigious university when determining his sentence....

If Mr. Turner and his defenders wanted to rebut that argument, a statement read to the court by his father, Dan Turner, and posted to Twitter on Sunday by Michele Dauber, a law professor and sociologist at Stanford, certainly did not help.

In the statement, Mr. Turner’s father said that his son should not do jail time for the sexual assault, which he referred to as “the events” and “20 minutes of action” that were not violent.  He said that his son suffered from depression and anxiety in the wake of the trial and argued that having to register as a sex offender — and the loss of his appetite for food he once enjoyed — was punishment enough. Brock Turner also lost a swimming scholarship to Stanford and has given up on his goal of competing at the Olympics.  “I was always excited to buy him a big rib-eye steak to grill or to get his favorite snack for him,” Dan Turner wrote.  “Now he barely consumes any food and eats only to exist. These verdicts have broken and shattered him and our family in so many ways.”

The Santa Clara, Calif., district attorney, Jeff Rosen, did not agree with Dan Turner’s assessment of the situation.  In a statement, he said the sentence “did not fit the crime” and called Brock a “predatory offender” who refused to take responsibility or show remorse. “Campus rape is no different than off-campus rape,” Mr. Rosen said. “Rape is rape.”

The editorial board of The San Jose Mercury News agreed, calling the sentence “a slap on the wrist” and “a setback for the movement to take campus rape seriously” in an editorial.

Professor Dauber said Monday that she was part of a committee that was organizing a recall challenge to Judge Persky, whose position is an elected one.  The professor said he had misapplied the law by granting Mr. Turner probation and by taking his age, academic achievement and alcohol consumption into consideration.

Professor Dauber might think about reaching out to Bill Otis for support for her effort to recall Judge Persky, as Bill now has these two notable posts up at Crime & Consequences about this case:

As the titles of these posts suggest, Bill seems right now more eager to go after the defense bar rather than the sentencing judge in this case, but I have an inkling he will be bashing on the judge soon, too.  (Bill has never been disinclined to attack judges or others whom he thinks are failing to do what he thinks they should be doing).  What strikes me as particularly notable and disconcerting, though, is that the elected state sentencing judge involved in this case was, according to this webpage, "a criminal prosecutor for the Santa Clara County District Attorney's Office, where [he was called upon to] prosecute sex crimes and hate crimes" right before he became a judge.

I am not familiar with the particulars of California criminal procedures as to whether a prosecutor is able to appeal a sentence considered unjustifiably lenient.  If so, then perhaps this sentence can be scrutinized and perhaps rectified on appeal; if not, we have another example of why I generally think allowing both sides to appeal a sentence for unreasonableness is a good idea. 

June 6, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24)

SCOTUS grants cert two notable Texas capital cases

Those eager to see SCOTUS continue to question the operation of the death penalty in the US have some news to celebrate from the court via this new order list: the Justices this morning granted certain two capital cases from Texas, Moore v. Texas and Buck v. Stephens. Over at SCOTUSblog, Amy Howe has already provided this quick response to a question as to whether these Cases are notable:

They are both reasonably interesting.  Moore v. Texas includes both a question about the standard for determining whether an inmate is intellectually disabled and the question whether executing an inmate after a long stay on death row violates the Eighth Amendment's prohibition on cruel and unusual punishment.

The Buck case is about an expert witness for the defense (!) testifying that Buck was likely to be more dangerous and thus more a candidate for death sentence because he is black.

In other words, high-salience issues concerning race, mental disabilities and delays before execution are all before the Court in these cases. Among other likely echo effects from these grants, I suspect this means there will be lots and lots of (mostly abolitionist) commentary about these cases in the weeks and months to come, and also that hearings for the next SCOTUS nominee (whenever they might occur) will include some significant focus on the constitutionality of capital punishment.

UPDATE:  This revised version of the SCOTUS order list indicates that in Moore the Justices will only be considering the way Texas handles application of its Atkins intellectual disability limit on who can be eligible for the death penalty.  Still, as this SCOTUSblog post by Lyle Denniston details, these two cases will still provide plenty of grist for the capital case controversy mill.

June 6, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Sunday, June 05, 2016

Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing

The Wall Street Journal has this effective new article discussing the case now before the Wisconsin Supreme Court considering a defendant's challenge to the use of a risk assessment tool in the state's sentencing process.  The article's full headline notes the essentials: "Wisconsin Supreme Court to Rule on Predictive Algorithms Used in Sentencing: Ruling would be among first to speak to legality of risk assessments as aid in meting out punishments." And here is more from the body of the article:

Algorithms used by authorities to predict the likelihood of criminal conduct are facing a major legal test in Wisconsin.  The state’s highest court is set to rule on whether such algorithms, known as risk assessments, violate due process and discriminate against men when judges rely on them in sentencing.  The ruling, which could come any time, would be among the first to speak to the legality of risk assessments as an aid in meting out punishments.

Criminal justice experts skeptical of such tools say they are inherently biased, treating poor people as riskier than those who are well off. Proponents of risk assessments say they have elevated sentencing to something closer to a science. “Evidence has a better track record for assessing risks and needs than intuition alone,” wrote Christine Remington, an assistant attorney general in Wisconsin, in a legal brief filed in January defending the state’s use of the evaluations.

Risk-evaluation tools have gained in popularity amid efforts around the country to curb the number of repeat offenders.  They help authorities sort prisoners, set bail and weigh parole decisions. But their use in sentencing is more controversial.

Before the sentencing of 34-year-old Eric Loomis, whose case is before the state’s high court, Wisconsin authorities evaluated his criminal risk with a widely used tool called COMPAS, or Correctional Offender Management Profiling for Alternative Sanctions, a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs.  The assessment includes queries like, “Did a parent figure who raised you ever have a drug or alcohol problem?” and “Do you feel that the things you do are boring or dull?”  Scores are generated by comparing an offender’s characteristics to a representative criminal population of the same sex.

Prosecutors said Mr. Loomis was the driver of a car involved in a drive-by shooting in La Crosse, Wis., on Feb. 11, 2013. Mr. Loomis denied any involvement in the shooting, saying he drove the car only after it had occurred. He pleaded guilty in 2013 to attempting to flee police in a car and operating a vehicle without the owner’s consent and was sentenced to six years in prison and five years of supervision.  “The risk assessment tools that have been utilized suggest that you’re extremely high risk to reoffend,” Judge Scott Horne in La Crosse County said at Mr. Loomis’s sentencing.

Mr. Loomis said in his appeal that Judge Horne’s reliance on COMPAS violated his right to due process, because the company that makes the test, Northpointe, doesn’t reveal how it weighs the answers to arrive at a risk score. Northpointe General Manager Jeffrey Harmon declined to comment on Mr. Loomis’s case but said algorithms that perform the risk assessments are proprietary. The outcome, he said, is all that is needed to validate the tools.  Northpointe says its studies have shown COMPAS’s recidivism risk score to have an accuracy rate of 68% to 70%. Independent evaluations have produced mixed findings.

Mr. Loomis also challenged COMPAS on the grounds that the evaluation treats men as higher risk than women.  COMPAS compares women only to other women because they “commit violent acts at a much lower rate than men,” wrote Ms. Remington, the state’s lawyer, in her response brief filed earlier this year in the Wisconsin Supreme Court. Having two scales — one for men and one for women — is good science, not gender bias, she said.

The parties appeared to find common ground on at least one issue. “A court cannot decide to place a defendant in prison solely because of his score on COMPAS,” Ms. Remington acknowledged, describing it as “one of many factors a court can consider at sentencing.” Her comments echoed a 2010 ruling by the Indiana Supreme Court holding that risk assessments “do not replace but may inform a trial court’s sentencing determinations.”

June 5, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)