Sunday, September 25, 2016
The title of this post is the title of this interesting and provocative new essay authored by I. Bennett Capers now available via SSRN. Here is the abstract:
While there is much to be said about the problem of mass incarceration and strategies for de-incarceration, the goal of this essay is to bring two things to the conversation. The first is to bring attention to the complex role misdemeanors play in compounding the problem of mass incarceration. The second is to call attention to race, but not in the usual way.
Usually, when we think of race and criminal justice, we think of racialized policing and the overrepresentation of racial minorities in jails and prisons. But what happens when we consider criminal justice not only as an issue of overcriminalization and overenforcement vis-à-vis racial minorities, but also as an issue of undercriminalization and underenforcement vis-à-vis non-minorities?
Put differently, in this time when we are again discussing white privilege and the hashtag #Crimingwhilewhite has become a phenomenon, are there advantages to talking about white privilege — or more generally, privilege — and criminal justice? If there exists what Randall Kennedy calls a “racial tax,” are there benefits to asking who gets a “racial pass”? Are there advantages to talking about the under-policed? Finally, how might those conversations impact the issue du jour, mass incarceration? This essay concludes by offering some suggestions for reducing mass incarceration.
Can and will California voters "save" the death penalty in the United States?
The quirky question in the title of this post is prompted by this lengthy new press article and its provocative headline: "Death penalty is dying across America. Will California save it?". Here are excerpts:
The last inmate executed in California was 76-year-old Clarence Ray Allen, legally blind and suffering from diabetes, who had his heart stopped with a lethal chemical cocktail as punishment for a triple homicide in Fresno he’d ordered from a Folsom Prison cell a quarter century earlier. It was more than a decade ago when Allen spoke his last words – “Hoka Hey, it’s a good day to die” – and the poisons flowed into his veins at San Quentin State Prison.
Now, with the death penalty dying across America, the nation is watching California as its voters weigh competing initiatives meant to either revive executions or abolish capital punishment. Several states in recent years ended their death penalties through court decisions or legislation, but California is a test of whether voters think executions are worth trying to save....
Proposition 62 on the November ballot would end the death penalty and convert the sentences to life without parole. Proposition 66 aims to speed up executions with – among other things – limits on appeals and deadlines on court rulings. Should both measures pass, the one with the most votes becomes law. California’s decision comes as the death penalty withers in the rest of the nation. There were 28 executions in America last year, the lowest number since the death penalty was reinstated in 1976, and a 70 percent decline from the peak in 1998.
Only six states had executions last year, most of them in the cotton belt. Even America’s execution capital of Texas is slowing down, with a 68 percent decline in inmates put to death over the past 15 years. A new Harvard University study found that just 16 counties in the U.S.’s 3,143 had imposed at least five death sentences since 2010. Supreme Court Justice Stephen Breyer noted last year that “the number of active death penalty counties is small and getting smaller.”
Reasons include legal challenges to death sentences, botched executions – including a 2011 Oklahoma injection where the condemned man writhed and moaned as it took him more than 40 minutes to die – difficulty obtaining lethal drugs from pharmaceutical companies reluctant to play a role in ending lives, and wrongful convictions. More than 150 people on death row nationwide have been exonerated since 1973, according to the Death Penalty Information Center, including three in California. Wrongful convictions doomed the death penalty in Illinois, which passed legislation to abolish it in 2011.
States are also balking at costs of a death penalty case and appeals. Lawmakers in conservative Nebraska voted to join the states shedding the death penalty last year, citing expenses and religious objections. The issue will go to Nebraska’s voters in a November referendum.
The death penalty is on hold in California, Arizona, Arkansas, Colorado, Kentucky, Louisiana, Montana, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania and Washington state as a result of legal challenges or moratoriums imposed by governors. Capital punishment has been abolished in eight other states over the past decade and is in limbo in Florida, which has the nation’s second-most-populous death row after California, following a Supreme Court decision striking down the state’s death penalty statute....
Sacramento County District Attorney Anne Marie Schubert said that regardless of what was happening in the rest of the nation she saw the death penalty as appropriate justice for the “worst of the worst” killers in California. “It’s a policy that Californians continue to support but they want the system fixed,” Schubert said.
?California voters supported keeping the death penalty in 2012 with 53 percent of the vote. Recent polling suggests this year’s initiative campaign to end capital punishment is struggling to win majority support. No state has repealed the death penalty by public vote since Oregon in 1964 – and voters there reinstated it in 1978. While courts and legislatures around the nation are abolishing capital punishment, when it goes to a public vote the hard line tends to have the advantage, said Franklin Zimring, a criminal justice expert at the University of California, Berkeley.
“The question is what do you do with the worst criminals you have?” Zimring said. “And if that ever becomes a question of sentiment the answer is boil them in oil.” California has the largest death row population in the Western Hemisphere, with 746 inmates who are sentenced to die. The nonpartisan Legislative Analyst’s Office estimates that eliminating California’s death penalty would save around $150 million a year, including reduced costs for trials and challenges to death sentences.
According to the study from Harvard’s Fair Punishment Project, five of the 16 U.S. counties in the U.S. that imposed at least five death sentences since 2010 are in Southern California – Kern, Los Angeles, Orange, Riverside and San Bernardino. Riverside County has become the nation’s leader in death sentences – with eight people sent to death row last year alone. Meanwhile, no one is actually being executed in California....
Cal-Berkeley’s Zimring predicts the initiative designed to speed executions in California will have minimal impact if it passes. The main result would be litigation and delay, he said, since the ballot measure has so many pieces open to challenge. That’s disputed by Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation in Sacramento. “The most important reforms of this carefully drafted initiative are virtually bulletproof,” he asserted.
Saturday, September 24, 2016
"Originalism and the Criminal Law: Vindicating Justice Scalia's Jurisprudence ― And the Constitutution"
The title of this post is the title of this new paper authored by Adam Lamparello and Charles MacLean now available via SSRN. Here is the abstract (which unfortunately does not seem to flesh out the title or themes of the piece's focus on Justice Scalia's criminal jurisprudence):
Justice Scalia was not perfect — no one is — but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective — namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution — that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.” Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. Greg Abbott said, an ‘unwavering defender of the written Constitution.’”
Justice Scalia’s frustration with the Court was certainly evident at times during his tenure, and understandably so. In United States v. Windsor, Scalia lamented as follows: "We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better."
The above passage captures the essence of Justice Scalia’s philosophy, and the enduring legacy that will carry forward for many years after his death. At the end of the day, Justice Scalia, whether through well-reasoned decisions, blistering dissents, or witty comments at oral argument, spoke a truth that transcends time: “[m]ore important than your obligation to follow your conscience, or at least prior to it, is your obligation to form your conscience correctly.” And “[h]ave the courage to have your wisdom regarded as stupidity… and have the courage to suffer the contempt of the sophisticated world.” You will be missed, Justice Scalia. You left the Court — and the law — better than it was before you arrived.
US House passes significant update to federal Juvenile Justice and Delinquency Prevention Act
Though it now seems that major federal statutory sentencing reform remains dead at least until the election (as I had thought months ago), this Marshall Project piece highlights that some other federal criminal justice reform has been moving quietly forward. Here are the details:
Even though the year began with strong bipartisan support for federal sentencing reform, no major changes to the criminal justice system have made it out of Congress thanks to a combination of legislative gridlock, election-year rhetoric about rising crime in some cities, and Republican reluctance to hand President Obama a major victory. But on Thursday, the House of Representatives quietly — and overwhelmingly — passed what might be the most significant justice reform measure to reach Obama in his tenure.
The bill is an update of the Juvenile Justice and Delinquency Prevention Act, which has been expired since 2007. It would withhold federal funding from states that hold minors in adult jails. Unlike previous versions of the law, the new bill would extend that protection to juveniles who have been charged with adult crimes but are still awaiting trial. The legislation would also ban states from locking up minors for so-called status offenses — things that are crimes only because of the age of the offender, such as truancy or breaking curfew.... “I’m delighted, but also optimistic,” said Rep. Bobby Scott (D-Va.), a lead sponsor of the bill. “Getting a law passed on justice issues — one that doesn’t go backward — has been a challenge, to say the least. But we ought to be able to conform the House and Senate versions and get this to the president” before his time in office runs out.
The Senate version of the bill has made it out of committee and has almost unanimous support. But it still faces an obstacle in Sen. Tom Cotton (R-Ark.), who has singlehandedly blocked the measure from being put to a quick voice vote. Cotton’s home state, Arkansas, locks up minors for running away and other status offenses at a disproportionately high rate, Mother Jones reported this week. A spokeswoman said Cotton is concerned the proposed law would erode the power of the bench. “It is prudent to allow states to determine if their judges — often in consultation with the parents and attorneys involved — should have the discretion to order secure confinement as a last-resort option,” Cotton spokeswoman Caroline Rabbitt said.
Sens. Charles Grassley (R-Iowa) and Sheldon Whitehouse (D-R.I.), the lead proponents of the bill on the Senate side, have been trying for months to reach a compromise with Cotton. If their effort fails, it would fall to Majority Leader Mitch McConnell (R-Ky.) to take up precious floor time — in a season devoted to reaching a spending deal and funding the fight against the Zika virus — with a debate and vote on the legislation.“Since it so closely resembles the Senate bill, Chairman Grassley is optimistic that it can be passed in the Senate,” said spokeswoman Beth Levine....
The JJDPA law has existed in various forms since 1974 and provides federal grants to states on the condition they adhere to several “core principles” for detaining youth: not in adult facilities, not for status offenses, and not in ways that impact different racial groups differently. But over time, loopholes have been added to the legislation, all of which the new, reauthorized bill aims to close.
States that do not want to comply with the new law, should it pass, could choose to forgo a portion of their federal funding, a modest $92 million per year to be shared across the country — assuming Congress agrees to appropriate the money. The bill also does not contain a key goal for reformers of the juvenile system: restricting the use of solitary confinement in youth prisons.
But the bill would require states to collect new data on racial disparities at every stage of the juvenile system and to present the federal government with a concrete plan for how they will address those divides. It would also require states to ensure that academic credits and transcripts are transferred, in a timely fashion, between schools and juvenile-detention facilities, and that children get full credit toward graduation for any schoolwork they completed while incarcerated. Finally, the legislation would ban the shackling of pregnant girls, provide funding for delinquency prevention and gang-intervention programs, and require states to report data on juvenile recidivism rates and other measures.
Friday, September 23, 2016
Eager to hear sharp suggestions for sharp Prez debate questions on criminal justice issues
Next week kicks off the Prez debate season, and I am certainly among the "yuge" number of folks really, really excited to see how Hillary Clinton and Donald Trump will perform and engage with the issues and each other on the big debate state starting on Monday. Among the reasons I am so excited this season, beyond the obvious and diversely distinctive entertainment value of both candidates, is because it seems quite likely that criminal-justice-related issues will be major topics of discussion (especially, of course, with respect to immigration policy/enforcement and police/citizen encounters).
As readers know, I am regularly rooting for sentencing-specific (and/or "war on drugs/marijuana") topics to take center stage at debates, and I am regularly disappointed that these topics either fail to get raised or get raised in ways that make it too easy for the candidates to respond with only fuzzy rhetoric. But now because Trump has made "law and order" a focal point of his recent campaign, and especially because both candidates have through the years made notable statements on topics ranging from the death penalty to mass incarceration to drug policy, I am yet again hopeful (though still not really optimistic) that the issues that consume this blog could be end up being discussed at some length and with some real bite at one or more of the coming debates.
Ever eager to help those with the challenging task of planning and moderating the coming debates, I am now eager to hear from readers in the comments throughout the weekend about what criminal justice issues they hope to see raised in the debates. I would be especially eager, as the title of this post highlights, to read in the comments actual suggested questions that are crafted in sharp ways to try to help ensure the candidates cannot get away with fuzzy answers. I genuinely doubt that the first debate moderator, Lester Holt, is a regular reader of the comment section of this blog, but you never know.
So, dear readers, my weekend challenge is to urge comment with some sharp suggestions for sharp Prez debate questions on criminal justice issues.
Latest polling suggests California voters could benefit from more information about state's competing death penalty initiatives
This news report on the latest polling concerning the competing death penalty initiatives before voters this fall reinforces my sense that Californians could benefit from a lot more public discussion and debate over the state and possible fate of capital punishment there. The news piece is headlined "Is a plan to end the death penalty on the ropes in California?," and here are the details (with my emphasis added):
A plurality of likely voters backs the latest ballot effort to repeal the death penalty in California and shutter the nation’s largest death row, but support remains below the 50 percent threshold needed, a new poll shows. The survey, completed jointly by the Field Poll and the Institute of Governmental Studies at UC Berkeley, found Proposition 62 ahead 48 to 37 percent, with 15 percent of likely voters undecided.
Meanwhile, barely a third (35 percent) support Proposition 66, a competing initiative aimed at expediting the death-penalty process. With 42 percent undecided, it appears far less familiar to voters. Twenty-three percent are opposed.
The see-saw measures come four years after voters narrowly rejected Proposition 34, an initiative that would have replaced capital punishment with life in prison without parole. The Field Poll’s last survey of that measure, taken a week before the 2012 election, found it leading 45 to 38 percent.
Mark DiCamillo, director of the poll, said there are signs of encouragement for death-penalty opponents this time, despite hovering below a majority seven weeks before the Nov. 8 election. “This is not a bad-news poll for Prop. 62,” DiCamillo added....
Proposition 62 would replace death sentences with life in prison without the possibility of parole and apply retroactively to existing death sentences. Proposition 66 endeavors to speed up the process by requiring that appeals conclude within five years of sentencing. DiCamillo said there is “much greater confusion” about Proposition 66, adding, “Voters don’t fully understand what the impact is.” If both measures pass, the one with the most votes will prevail....
California’s last execution was in January 2006, with the state effectively halting executions over challenges to its lethal injection protocol.
Some of many prior related posts:
- California voters in November to have "mend it or end it" death penalty initiative options
- California initiative to reform death penalty officially qualifies for ballot (and will compete with repeal initiative)
- California DA makes the case for mending rather than ending California's capital punishment system
- "California Votes 2016: An Analysis of the Competing Death Penalty Ballot Initiatives."
- "It's Silicon Valley vs. law enforcement on California death penalty"
- Poll suggests Californians will vote in November 2016 to mend rather than end the death penalty in their state
- "Fourteen Years Later: The Capital Punishment System in California"
Great new US Sentencing Commission report on "simple possession" federal drug cases raises array of hard follow-up questions
I find crime and punishment data so interesting and so important in large part because (1) even seemingly basic and simple data often can only be fully understood after one takes time to examine closely the backstories that surround that data, and (2) only if and when a researcher or advocate has deep understanding of data can that person even start to appreciate all the challenging policy and practical questions that important data implicate. These realities are on full display in the context of an interesting and important new report released this week by the US Sentencing Commission titled "Weighing the Charges: Simple Possession of Drugs in the Federal Criminal Justice System." Here is the introduction to the short report, which explains the notable backstories concerning a dramatic recent change in the number of federal "simple possession" cases:
The simple possession of illegal drugs is a criminal offense under federal law and in many state jurisdictions. The offense occurs “when someone has on his or her person, or available for his or her use, a small amount of an illegal substance for the purpose of consuming or using it but without the intent to sell or give it to anyone else.”
Simple drug possession is a misdemeanor under federal law which provides that an offender may be sentenced to a term of imprisonment of not more than one year, fined a minimum of $1,000, or both. However, if an offender is convicted of simple possession after a prior drug related offense has become final, the offender can be charged with a felony simple possession offense.
The number of federal offenders whose most serious offense was simple drug possession increased nearly 400 percent during the six-year period between fiscal years 2008 and 2013. A change of this magnitude over a relatively short period of time triggered further investigation into these cases using data on offender and offense characteristics routinely collected by the United States Sentencing Commission (“the Commission”), as well as additional data collected specifically for this project.
At first, this dramatic increase in the number of offenders sentenced for the simple possession of drugs seems to suggest a substantially increased focus on this offense by federal law enforcement personnel. Further analysis, however, does not support such a conclusion. A closer inspection of the data demonstrates that this increase is almost entirely attributable to a single drug type — marijuana — and to offenders who were arrested at or near the U.S./Mexico border (a group almost entirely composed of offenders from the District of Arizona). For simple possession of marijuana offenders arrested at locations other than the U.S./Mexico border, the median quantity of marijuana involved in the offense was 5.2 grams (0.2 ounces). In contrast, the offense conduct of simple possession of marijuana offenders arrested at that border involved a median quantity of 22,000 grams (48.5 pounds or 776.0 ounces) — a quantity that appears in excess of a personal use quantity.
In other words, the USSC noticed data showing a huge increase in the charging of misdemeanor federal drug crimes, which at first might suggest a curious new commitment by federal prosecutors to pursue low-level drug offenders. But, upon closer examination, the USSC discovers that what is really going on is that a whole lot of (low-level?) drug traffickers (mules?) found with huge quantities of marijuana are having their cases prosecuted through "simple possession" charges even though that label hardly seems like a factually fitting description of their drug crimes.
I am extraordinarily pleased to see the USSC detailing and explaining this interesting new data trend, and I am extraordinarily interested to hear from readers as to whether they think federal prosecutors in border regions ought to be praised or pilloried for their new misdemeanor approach to dealing with marijuana offenders arrested at the border with an average of 50 pounds of mary jane. This USSC report not only documents one tangible way that state marijuana reforms would seem to be having a profound impact on how the federal government is now waging the so-called "war on weed," but it also prompts a lot of hard questions about whether the new behaviors by federal drug prosecutors are appropriate given the absence of any formal changes to federal drug laws.
September 23, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2)
Lots of notable new content worth checking out at the Collateral Consequences Resource Center
As regular readers know, I have made a habit of noting here some posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogosphere). So... here are some recent posts of note from CCRC:
Thursday, September 22, 2016
What could it mean politically and practically if — or should I say when — sentencing reform really becomes a "Latino Issue"?
The question in the title of this post is prompted by this interesting new Atlantic piece/interview authored by Juleyka Lantigua-Williams and headlined "Criminal Justice Is Becoming a 'Latino Issue': Yet there’s still a great deal we don’t know about Latinos and the criminal justice system." Here is how the piece begins:
Immigration has been the signature issue of political campaigns that want to appeal to Latinos, a group that has grown to encompass 17 percent of the population. But the last few years have poked big holes in the idea that Latinos only care about immigration, showing that Latino voters also care about terrorism, social security, and the environment. A growing number of Latinos are also becoming concerned about criminal justice reform, as more join the call for systemic changes at the federal and state levels.
Latinos are overrepresented both among victims of violence and among those behind bars. Latinos under 30 are almost three times as likely to be homicide victims as whites the same age, according to the Tomás Rivera Policy Institute at USC. They are also more likely to be threatened or attacked with a gun. And when Latinos report crimes, the report is less likely to lead to an arrest than the same crimes do when the victims are white.
In a 2014 report, the Violence Policy Center gathered valuable information on the profiles of Latino victims of crime. The homicide rate is more than twice as high as that of whites, and homicide is the second-leading cause of death for Latinos 15 to 24 years old. About 41 percent of Latino homicide victims in 2011 were younger than 24. Among blacks, the rate was 40 percent, and among whites it was 22 percent. In prisons, 20 percent are Latino, according to the Department of Justice, which indicates that if current rates continue, one of every six Latino men can expect to spend time in jail over their lifetime.
Yet a great deal of data that would help policymakers and advocates understand Latinos’ relationship to law enforcement has yet to be collected — there is much more data about whites and blacks’ encounters with the criminal justice system. After hitting some dead-ends in my search for answers about Latinos’ perceptions of, and experiences with the penal institutions and law-enforcement authorities in the country, I reached out to Alex Piquero, a criminologist at the University of Texas, Dallas, with some of my most pressing questions. An abridged and edited version of our conversation follows.
Juleyka Lantigua-Williams: I’m trying to address the question of whether Latinos care enough, or care at all, or should care more about criminal justice reform. What’s your perspective on that?
Alex Piquero: There are two main things that the research evidence is very clear about. The first one is, unfortunately, we do not have a lot of information on Hispanics in the criminal justice system, in general, whether it’s their offending, whether it’s their perceptions of the system. That’s primarily because of the lack of data collection that has occurred in this country for over a hundred years.
We’re getting better, we’re now starting to collect that data. For example, the FBI started to collect that information with arrest statistics. Traditionally, most of the research on criminal justice issues, whether it’s looking at offending patterns or incarceration rates, or people’s perceptions about the criminal justice system and their experiences has been only focused on blacks and whites, because of data constraints. Now we’re starting to get a little bit of a picture with respect to Hispanic and Latino views.
Lantigua-Williams: What do you think has been the effect of this lack of data, specifically on Latinos?
Piquero: We just had no idea what Hispanics felt about with respect to the criminal justice system or their experiences. That’s been one of the very big limiting factors of that area of work, that’s really important to say because we don’t have fifty years of research on a topic like that, whereas we do with respect to whites and African Americans. That said, the most recent research is complicated because there’s a lot of variability within Hispanics.
Cubans, Puerto Ricans, Mexicans, Central Americans, they may not see and/or interpret the criminal justice system in the same way. Sometimes you’re going to see differences within the groups, but we have very little information, for example, on what Puerto Ricans think about the criminal justice system because, typically, those studies have always lumped together the various Hispanic groups. Now, that said, Hispanics care about the criminal justice system just as much as whites and African Americans do. They are interested in it, they have experiences about it, and I think Hispanics are no different from whites and African Americans in that they see needs for reform. There’s no perfect system, but there’s not a lot of variability with respect to what parts of the system they may want to see reformed.
"Under the Radar: Neuroimaging Evidence in the Criminal Courtroom"
The title of this post is the title of this notable (and quite lengthy) article available via SSRN authored by Lyn Gaudet and Gary Marchant. Here is the abstract (with one line emphasized therein for sentencing fans):
This Article analyzes court decisions in 361 criminal cases involving neuroimaging evidence through the end of 2015. There has been a steady upward trend in the number of criminal cases considering neuroimaging evidence with the number of reported decisions being the highest in the most recent period of 2013-2015. Neuroimaging evidence has been used in competency, guilt, and penalty phases of criminal trials, with the most efficacy being seen in the penalty phase, especially in capital cases.
In order to provide a helpful analysis of uses and trends of this specific type of evidence, this Article includes an identification of the specific neuroimaging modality used or requested in each case (CT, MRI, EEG, PET, SPECT), the reason for the request for neuroimaging, the legal argument involving the imaging data, and the court’s response. In addition, common concerns regarding the use of neuroimaging data are also addressed, including the complexity of the various techniques and analysis, individual variability of the brain, the time gap between scanning and the criminal act, and the ability to make statements about groups versus about one individual.
As supported by the trends demonstrated in this analysis, there has been a shift in recent years from discussion about whether neuroimaging evidence is relevant and admissible toward admissibility of this type of evidence and a focus on the substantive results and appropriate use of the neuroimaging data.
Interesting account of how Mexico invests in keeping its homicidal citizens from being sentenced to death in the US
The Marshall Project has this interesting new article headlined "How Mexico Saves Its Citizens from the Death Penalty in the U.S.: A fund is designated to train, pay and advise American defense lawyers." Here are is how it gets started:
When the body of 25-year old Lesley Hope Plott was found lying in a ditch in Russellville, Ala., in February of 2013, police had little trouble zeroing in on a suspect: hours earlier, a nearby church’s security camera had recorded her being beaten and stabbed by her estranged husband, Angel Campos Nava.
Then, Thomason received a call offering her something few lawyers in death penalty cases get: money, training, and advice, courtesy of the Mexican government. Nava’s case had caught the attention of the Mexican Capital Legal Assistance Program, created by Mexican officials in 2000 to save the country’s citizens from execution in the United States.
One of the program’s chief purposes is to help defense attorneys construct a biography of the accused—to humanize them. Poverty, family dysfunction, and developmental disability are frequent themes in their clients’ lives. When presented as part of a defense, such themes can encourage mercy among jurors and dissuade them from handing down a death sentence.
To that end, the program arranges for lawyers to go to Mexico to track down school and hospital records and stories about their clients’ lives, either paying for their travel costs or advising them on how to request money from local courts. Under the program, Mexico pays American lawyers up to $220 an hour to track potential death penalty cases around the country—watching court decisions and news stories from the moment of arrest, all the way through the last minute scramble before an execution—and advise court-appointed lawyers like Thomason.
Since 2008, the program has provided these attorneys with an average annual budget of around $4 million to track as many as 135 cases at a time, according to the program’s filings with the Department of Justice. That comes out to roughly $29,000 per case, per year. By contrast, the Equal Justice Initiative, which represents numerous inmates on Alabama’s death row, has reported that many of them were sentenced to death after their attorneys’ fees were capped at $1,000 for out-of-court trial preparation.
Wednesday, September 21, 2016
Federal District Judge reasonably asks "What’s The Deal With White Guys And Child Porn?"
Long-time readers and federal district court aficionados likely know plenty about Senior United States District Judge Richard G. Kopf, a jurist who has never been afraid to say what he is thinking (and who's gotten in trouble a few times for that tendency). As evidenced by this new post at Mimesis Law, the judge has lately been giving thought to kiddie porn and the racial demographics of certain offender groups. Here are excerpts:
In America, there is no doubt that in most circumstances being white (Caucasian in census terms) is a benefit.... But, at least in one category, it appears that being white is not a really good thing, but rather a predictor for the commission of horrible federal crimes. I refer to the production of child pornography.
The Sentencing Commission has told us that child porn consumers[* footnote] are “overwhelming white.” U.S. Sentencing Commission, Report to the Congress: Federal Child Pornography Offenses, ch. 11 at 308 n. 56 (Dec. 2012). The same thing is true for producers of child pornography. That is: "Production offenders, like non-production child pornography offenders, are a relatively homogenous group demographically compared to federal offenders generally. Among production offenders in fiscal year 2010, the overwhelming majority were male (97.0%), white (85.9%), and United States citizens (97.0%)."
Moreover, child porn producers were very different than the normal federal offender. They were employed, relatively well-educated and came from a higher socio-economic background. To be specific, ... "like non-production offenders, production offenders on average occupy a higher socio-economic status than federal offenders generally. In fiscal year 2010, 87.7 percent of production offenders were high school graduates, and 46.7 percent had at least some college. In fiscal 2010, among all federal offenders, the typical offender was not a high school graduate (51.4%), and only 19.9 percent of offenders had at least some college education. There was a high degree of employment among child pornography production offenders at the time of their arrests. Of the 197 production offenders sentenced in 2010 for which there was employment data, 76.1 percent were employed."
But in all probability, you don’t know what I mean, at least on a visceral level, by the words “child porn producer.” So let me give you an example. Be prepared to puke. The following is an accurate media summary of a child porn production case that started off in Michigan and landed on my docket as well because the united group of producers spanned our nation.
"A November arrest in a child porn case has led federal investigators to a larger ring of suspects accused of working together online to manipulate young girls into engaging in sexual acts on camera. A complaint against a California man filed in Detroit federal court Thursday revealed details of a disturbing and elaborate operation that sought to lure minors into video chatrooms where they would be urged to perform 'dares' while their images were recorded.... Federal investigators learned that members of the group served distinct roles that included 'hunters,' 'talkers,' 'loopers' and 'watchers'."
What happened to these young girls, mostly in their early teens, was horrendous. Suffice it state that they were cajoled or trapped into violating themselves in the most sickening and humiliating of ways, in one case blackmailed to continue the abuse, and in another case permitted to harm herself for the pleasure of the observers.
My part of this case was simple. The Nebraska white guy, who was 31, and a hardworking man, with post-secondary education, and respected member of his community, was confronted at his home by the FBI. He told me that he was relieved when the feds came to the door because he didn’t know how to stop. He immediately spilled his guts. I accepted the Rule 11(c) (1) (C) plea agreement, containing an appeal waiver, and requiring me to sentence the defendant to 35 years in prison. His Guideline range was life.
He was very smart to have accepted the deal because I would likely have imposed a life sentence. Despite my reservations, I approved the plea agreement to avoid a trial with the kids being forced to testify. I also sentenced him to a life of supervised release when he gets out of prison as an old man. He was capable of making, and I required him to pay, a substantial amount of restitution to the children.
As I reflected on the above, I wondered about the word “thug” with all the racial freight that word carries. I asked myself how I should describe these white child porn producers assuming I see no problem with the word “thug.” Perhaps I could call them “white devils!” Anyway, at this point I realized that my mind was wandering, so I returned to the essential question.
What the hell is wrong with white guys?
[* footnote] As I have previously noted in Fault Lines, I have some empathy for child porn consumers as opposed to child porn producers. See here.
Astute recognition that crime victims have to be integral part of effort to address modern mass incarceration
Greg Berman and Julian Adler have this important new commentary at The Crime Report headlined "Finding Common Cause: Victims and the Movement to Reduce Incarceration." Here are excerpts:
After more than a generation of punitive, “tough-on-crime” rhetoric and policymaking, there is now a fairly broad political consensus in the United States that we have gone too far in our use of incarceration. Indeed, just a few weeks ago, the White House unveiled the Data-Driven Justice Initiative, a partnership of 67 jurisdictions — big and small, conservative and liberal — committed to using data to reduce incarceration.
The efforts to roll back mass incarceration are laudable, but they will not achieve lasting change if they do not figure out how to incorporate the perspectives of the justice system’s most vulnerable constituents: Victims of crime.
Victims of intimate partner violence in particular often feel sidelined by a criminal justice system that focuses almost exclusively on defendants. And make no mistake: Domestic violence represents a significant percentage of the cases in our criminal courts. Current estimates show that approximately 10 million people are abused by an intimate partner in the U.S. each year — and this is almost certainly an undercount, given the hidden and unreported nature of a lot of abuse.
But it is not just the criminal justice system that pays short shrift to victims. Reformers do it, too. “Victims have been overlooked in this de-incarceration movement,” said Mai Fernandez, executive director of the National Center for Victims of Crime, in a recent interview with the Center for Court Innovation. Advocates concerned with reducing the use of incarceration typically argue that fewer defendants should be sent to jail or prison, and that there should be more community-based alternatives. Victim support organizations are, by definition, focused on crime victims’ safety. Historically, many have argued for increased accountability — including incarceration — for offenders, particularly in cases involving domestic violence.
Is it possible for victim advocates and jail reduction advocates to find common cause? To begin to answer this question, the John D. and Catherine T. MacArthur Foundation and the Center for Court Innovation convened a roundtable with policymakers and practitioners from across the country, including judges, prosecutors, defense attorneys, victim advocates, and police officials. The roundtable highlighted a number of tensions.
One obvious tension is the potential conflict between protecting the safety of victims and protecting the constitutional rights of the accused. Many advocates believe that to better serve victims, courts should impose conditions of release—including stay-away orders, monitoring, and participation in specialized services — for domestic violence defendants who are out in the community pending trial. This idea runs up against the strong national push to reduce pretrial detention for those who have been accused—but not convicted — of criminal behavior.
As with much of American life, the challenge of racial, ethnic and gender disparity hangs over this conversation. Black and Latino communities have long histories of being over-policed and over-criminalized in the U.S. At the same time, these communities have been under-protected from the threat of victimization. History tells us that women of color are particularly vulnerable.
Many advocates of jail reduction place great faith in actuarial risk assessment instruments to determine who can be safely released while a case is pending. But victim advocates are asking some hard questions about these tools: How accurate are they? What can a statistical analysis tell us about what any individual defendant might do? And how well do risk tools take into account potential lethality?
“Domestic violence defendants are different,” argued Idaho judge James Cawthon in the roundtable. Indeed, there is plenty of evidence to suggest that the presence of a specifically targeted victim changes the equation when it comes to looking at the potential risk — and severity — of re-offending. While some jurisdictions have developed special risk assessment tools for domestic violence defendants, many have not. In the days ahead, jail and prison reformers will have to wrestle with these and other challenges if they are to win the full-throated support of victim advocacy groups....
A strong body of opinion within the victims’ movement agrees the time has come to take a hard look at “right-sizing” incarceration, which involves figuring out who needs to be behind bars and who does not. “It’s just simply not the case that all victims of violent crimes, and certainly not all victims of nonviolent crimes, seek a punitive punishment for the offender,” University of Miami law professor Donna Coker tells the Center for Court Innovation. “What they frequently seek is some assurance that it won’t happen to them again and some assurance that it won’t happen to somebody else.”
Victim advocates and jail reduction proponents may not be able to agree on every issue. But in those areas where they have shared goals — improving the quality of risk assessment tools, reducing racial and gender disparities, and promoting trauma-informed care — they can serve as a powerful voice for change within our justice system.
Tuesday, September 20, 2016
"The Constitutional Right to Collateral Post-Conviction Review"
The title of this post is the title of this new and timely new article authored by Carlos Manuel Vazquez and Stephen Vladeck. Here is the abstract:
For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post-conviction habeas review all-but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding — for the first time — that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a state prisoner seeks retroactively to enforce a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.
On the surface, Montgomery held only that state courts are required to employ Teague’s retroactivity framework when and if they adjudicate habeas petitions relying on new substantive rules of federal law. But, in reaching that conclusion, the Court clarified that Teague’s holding that new substantive rules of federal law are retroactively applicable on collateral review was a constitutional one, a holding that, as we explain, was both novel and important.
We next consider which courts — state or federal — have the constitutional obligation to provide the constitutionally required collateral review recognized in Montgomery. Either way, the implications of Montgomery are far-reaching. To conclude that the state courts must provide collateral review would run counter to the conventional wisdom that states are under no obligation to permit collateral attacks on convictions that have become final. On the other hand, the conclusion that federal courts must have jurisdiction to grant such collateral review is in significant tension with the Madisonian Compromise. In our view, the Supreme Court’s Supremacy Clause jurisprudence establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts — even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims. The state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction over such claims. Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners.
Finally, we examine some of the important questions raised by the conclusion that state and federal prisoners have a constitutional right to collateral relief. Although the questions are complex, and not all of the answers are clear, the uncertainties surrounding some of the contours of the remedy recognized in Montgomery should not obscure the fact this seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review, a result that could have a breathtaking impact on both commentators’ and courts’ understanding of the relationship between collateral post-conviction remedies and the Constitution.
When I got involved in writing a little commentary about the Montgomery opinion earlier this year, Montgomery's Messy Trifecta, I came to see themes and language in the Montgomery opinion that struck me as very important and very ground-breaking. Thus, I am especially pleased to discover that I am not the only one who believes (and arguably welcomes) the fact that a "seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review."
What should we make of why and how New Mexico's Gov is pushing hard to bring back the death penalty in her state?
One notable sentencing reform story in the United States over the last decade has been the growing number of states abolishing capital punishment legislatively while no new state has come to (or come back to) embrace the penalty. Specifically, in the last decade, we have seen legislatures in New York, New Jersey, New Mexico, Illinois, Connecticut, Maryland and Nebraska take their machineries of death off-line. (The 2015 Nebraska repeal, as regular readers know, might be reversed by voter referendum this November.)
But as highlighted by this new AP article, headlined "New Mexico Governor Wants Vote on Reinstating Death Penalty," a notable chief executive is now making a notable hard push for bringing the death penalty back in her state. Here are the latest details:
P>New Mexico Gov. Susana Martinez stepped up pressure on lawmakers Tuesday to consider reinstating the death penalty by promising to add the issue to a legislative agenda for a pending special session that was aimed solely at fixing the state's budget shortfall.
The second-term Republican governor said that she wants the death penalty as an option for convicted killers of police, children and corrections officers. New Mexico repealed the death penalty in 2009 before Martinez took office by replacing provisions for lethal injection with a sentence of life in prison without parole. The move by Martinez could compel lawmakers to take a public stand on capital punishment ahead of November elections for the Republican-controlled state House of Representatives and Democrat-dominated state Senate.
"Cop killers and child murderers deserve the ultimate punishment," Martinez said in a written statement. "If you kill an officer, you deserve the death penalty. If you kill a child, you deserve the death penalty. It's time we say enough is enough."...
Her push to restore capital punishment follows the killings in southern New Mexico of two police officers in separate shootings in August and September by wanted fugitives, along with the horrific killing and dismemberment of a 10-year-old New Mexico girl in Albuquerque last month.
New Mexico executed nine men starting in 1933 until more than seven decades later when it abolished the death penalty. The state's most recent execution in 2001 was its first since 1960. Former Gov. Bill Richardson, a Democrat, cited flaws in how the death penalty was applied when he signed the legislation that abolished it. He said the criminal justice system must be perfect if it will be used to put someone to death.
I presume Gov Martinez genuinely believes that justice demands the death penalty for cop killers and child killers (although her strong rhetoric makes me wonder if she shares GOP Prez nominee Donald Trump's view that we should have a mandatory capital punishment for cop killers as well as for child killers). And yet, given the current timing of her push for bringing the death penalty back to New Mexico, I cannot help but wonder if Gov Martinez (1) has some strong internal polling numbers suggesting citizens in the state also strongly favor a return of the death penalty, and (2) thinks that the death penalty can be an effective "wedge" issue for her to help get her preferred state legislative candidates elected this fall.
"Lethally Deficient: Direct Appeals in Texas Death Penalty Cases"
Texas’ system of providing direct appeal representation in death penalty cases is in dire need of reform, according to a new report by Texas Defender Service. The report, Lethally Deficient, evaluates six years of direct death penalty appeals and concludes that the current system is broken. The Texas Legislature should, Texas Defender Service recommends, create a capital appellate defender office to handle these appeals, establish a statewide appointment system with caseload controls and uniform compensation, and require the appointment of two qualified lawyers to each death penalty direct appeal.
Lethally Deficient: Direct Appeals in Texas Death Penalty Cases is the first report to engage in an in-depth examination of direct appeals for Texas death penalty cases. Texas law requires all death sentences to be directly appealed from the trial court to the Texas Court of Criminal Appeals. A direct appeal is based on the trial record and transcript.
“This report documents that, in case after case, most death row inmates are not well represented on direct appeal,” said Kathryn Kase, Executive Director of Texas Defender Service, a nonprofit law firm that works on capital cases and related criminal justice issues. “Texas should do what it did to address the crisis in capital habeas representation: create a public defender office that handles only direct death penalty appeals.”
TDS examined all direct appeals filed in each of the 84 death penalty cases decided by the Court of Criminal Appeals between January 1, 2009 and December 31, 2015. The study uncovers multiple deficits in capital direct appeal representation. Lawyers submitted briefs that recycled failed legal arguments without updating to reflect current law, failed to meet — and at times, correspond with — their clients, failed to request oral argument, and avoided filing reply briefs and applications for U.S. Supreme Court review. And while other jurisdictions reported attorneys needing between 500 and 1,000 hours to brief a capital direct appeal, defense lawyers for the cases in the TDS study billed between 72.1 to 535.0 hours for each appeal, for an average of only 275.9 hours.
In the six years – 2009 through 2015 – that these deficiencies occurred, TDS found that the CCA did not reverse a single conviction in a death penalty case on direct appeal. The CCA affirmed convictions and death sentences in 79 cases, and reversed death sentences in just three cases.
When compared to capital litigants in other jurisdictions, Texas death penalty appellants fare far worse. Death row inmates outside Texas are 2.8 times more likely to have their cases reversed on direct appeal. TDS reviewed 1,060 capital direct appeal decisions issued by the highest courts in the 30 other death penalty states between 2005 and 2015, and these courts collectively reversed 16.0% of all death sentences. By contrast, the Texas Court of Criminal Appeals reversed just 5.7% of the death penalty cases heard on direct appeal between 2005 and 2015.
Lots of notable new content worth checking out at Crime & Consequences
The students in my Sentencing Law and Policy course at The Ohio State University Moritz College of Law may already be getting tired of hearing me encourage them to regularly check out Crime & Consequences for another perspective on the issues we discuss in my class. But as I was talking up a recent post there in class yesterday, I discovered that the C&C folks have recently added a lot of new content that merits highlighting here. So....
In my class yesterday, I was trying to highlight the last of these listed posts as we were talking about whether and how you could argue to elected officials and voters that abolition of the death penalty would save significant monies within a jurisdiction. Perhaps unsurprisingly, as Kent at C&C highlights, folks advocating for death penalty abolition in Nebraska and elsewhere are eager to argue great savings from getting rid of the death penalty, but the numbers they promote as part of such a pitch are certainly contestable.
Do animal abuser registries make more or less sense than sex offender registries?
The question in the title of this post is prompted by this recent Washington Post piece headlined "Animal abusers are being registered like sex offenders in these jurisdictions." Here are excerpts:
Starting in November, convicted animal abusers in the county that includes Tampa will be easier to identify. Their names, photos and addresses will be published on a county-run website that is publicly searchable and similar to the online sex offender registries that have proliferated since the 1990s.
The animal abuser registry, passed last week by commissioners in Hillsborough County, is aimed at preventing people who have harmed animals from doing so again. Retailers and shelters will be required to have prospective pet adopters or purchasers sign an affidavit saying they’re not on the registry. Regular people seeking pet-sitters or new homes for their animals will be able to vet candidates. Law enforcement officials will, at least in theory, be able to keep tabs on offenders’ whereabouts.
The county is the latest in a tiny but growing group of U.S. jurisdictions to adopt such registries. A handful of New York counties have them, as does New York City, although that one isn’t accessible to the public. Cook County, Ill., whose county seat is Chicago, recently decided to create one. Tennessee started the first statewide registry in January, although it still has just three people on its list.
“Just as we place extra trust in teachers and law enforcement, so, too, should we ensure that those engaged in the handling of animals have a spotless record,” New Jersey state Rep. Troy Singleton (D) said about legislation he sponsored to make his state home to the second statewide animal abuse registry. He referred to the idea as a “first line of defense.”
The registries are part of widening efforts in the United States to punish and track animal abusers, who, research has shown, commit violence against people at higher rates than normal. All 50 states now have felony provisions for the gravest crimes against animals, although many offenses are still considered misdemeanors. The FBI has added animal cruelty to its list of Class A felonies, and this year began collecting data for such crimes the way it does for other serious offenses, including homicide.
“Most owners consider their pets to be family members,” Kevin Beckner, the Hillsborough County commissioner who pushed for the registry, said in a statement. “This Registry not only protects animals, but it can identify — and maybe even prevent — violence against humans, too.”
The registries have several limitations. For one thing, they’re local, not national, so a person with an animal cruelty record in Tampa wouldn’t be stopped from getting a cat in Miami. Most require the cooperation of offenders themselves, requiring them to register or face a fine.
And the tool is not without its detractors — some of whom include animal advocates. The chair of the Hillsborough County’s Animal Advisory Committee called the registry there “not sufficient at all,” according to the Tampa Bay Times. Retailers have protested the idea of putting salespeople in the position of saying no to potentially violent customers whose names pop up in an online search. That concern led the Florida county to require stores and adoption shelters to procure only an affidavit, which can be checked against the registry — and passed along to authorities if there’s a match — after the customer leaves. But it has been dismissed elsewhere....
Among the skeptics is the Humane Society of the United States, whose president and chief executive, Wayne Pacelle, wrote in 2010 that the “overwhelming proportion of animal abuse is perpetrated by people who neglect their own animals” and are unlikely to commit violence against other people and pets. “Such individuals would pose a lesser threat to animals in the future if they received comprehensive mental health counseling,” Pacelle wrote at the time. “Shaming them with a public Internet profile is unlikely to affect their future behavior — except perhaps to isolate them further from society and promote increased distrust of authority figures trying to help them.”
A few prior related posts:
- New York county creates first animal abuser registry with penalties for failing to register
- "States Seeking New Registries for Criminals"
- "First, a sex offender registry. Next, an animal abuser registry?"
- Tennessee soon to become first state with animal abuser registry
Sunday, September 18, 2016
"What Executioners Can — And Cannot — Teach Us About the Death Penalty"
The title of this post is the title of this notable new paper authored by Susan Bandes now available via SSRN. Here is the abstract:
Executioners and others who come into close proximity with the condemned often come to reject the death penalty. They reject it not only in individual cases, and not only on the ground that the death penalty is poorly implemented. They conclude that capital punishment is wrong. I argue that the perspective of the executioner helps illuminate the debate about whether to abolish capital punishment, and raises the troubling possibility that support for the death penalty can survive only at a great remove.
The essay responds to a recent article by Jeffrie Murphy focusing on the question of whether executioners can take pride in their work. I contend that Murphy asks the wrong question, and that the better question is whether anyone ought to be asked to do such work. On this latter question, the perspective of the executioner sheds important light. Like Murphy, I draw on works by and about Albert Pierrepoint, the “last hangman” of Britain. I also draw on the perspectives of numerous executioners, wardens, chaplains and other death row personnel. I argue that their perspectives offer a powerful argument against the main rationale for the death penalty: retribution. If retribution is keyed to the offender’s character as well as his wrongful act, then post-conviction character ought to matter. The executioners’ accounts share a common theme: that death row inmates change over time and hold the potential for redemption.
Saturday, September 17, 2016
Notable opposition to initiative seeking to enshrine the death penalty in Oklahoma's state constitutions
Two big substantive fights via voter initiative concerning the death penalty this fall are taking place in California and Nebraska. But this AP article highlights that Oklahoma voters are being presented with an important kind of stylistic question concerning capital punishment. And, as the article explains under the headline "Oklahoma death penalty question faces bipartisan opposition," there is some notable disaffinity for its proposition. Here are the basic details:
A proposal to ask Oklahoma voters to enshrine the death penalty in the state’s nearly 100-year-old constitution sailed easily through the Legislature, but now is facing opposition from groups on opposite ends of the political spectrum. In addition to various faith and civil rights organizations that traditionally oppose capital punishment, several conservative groups and the newly recognized Oklahoma Libertarian Party also are joining the fight against State Question 776.
“The conservative position is against the death penalty because it costs more than life (in prison), more than life without parole,” said Marc Hyden, national advocacy coordinator for Conservatives Concerned About the Death Penalty, one of several organizations that helped kick off rallies in Oklahoma City and Tulsa opposing the question. “Beyond that … we believe the founding fathers had the foresight to institute checks and balances, and this aims to subvert those checks and balances.”
A group opposing the state question — Say No To SQ 776 — has raised about $4,000, according to its most recent report with the Oklahoma Ethics Commission. There don’t appear to be any organized groups supporting the question.
The state question was sent to the voters through a resolution approved by the Legislature in 2015 following a botched execution and problems with the administration of lethal injection. Sponsored by two pro-death penalty lawmakers, it would ensure that death sentences would not be reduced if a method of execution is ever ruled invalid and gives the Legislature the explicit power to designate any method of execution not prohibited by the U.S. Constitution. It also states that the imposition of the death penalty will not be considered cruel and unusual punishment, which is currently prohibited under the Oklahoma Constitution.
Because the language would be added to the state constitution, it would also make it more difficult for the courts or future Oklahoma legislatures to eliminate the death penalty, said Rep. Mike Christian, a former highway patrolman who authored the bill. “It’s such a serious issue, we decided to put it in the Constitution,” said Christian, R-Oklahoma City. “I believe it will get overwhelming support. We thought we should put it in the constitution, just to send a message that we support it as a people.”
The measure passed 80-10 in the House and 44-0 in the Senate, receiving support from Democrats and Republicans. But since its passage, Oklahoma has continued to have problems administering lethal injections....
“If we cannot trust our state government to fund our schools, our hospitals, fund our infrastructure, how in the world can we continue to trust them to strap someone down on a table, put a needle in their arm and fill it full of poison until they’re dead,” said Ryan Kiesel, executive director of the Oklahoma Civil Liberties Union of Oklahoma. “We cannot continue to trust them to do that.”
Friday, September 16, 2016
"What crimes warrant the death penalty? Depends on the prosecutor"
The title of this post is the headline of this new Los Angeles Times editorial, which gets started this way:
If the government is going to impose a punishment as medieval and irreversible as the death penalty, it should take pains to ensure that the penalty is invoked only for the most heinous crimes and that it is applied fairly and consistently. Data compiled by the state attorney general’s office, however, suggest that California is falling short of those ideals because of the individual judgments of local prosecutors.
To be eligible for a death sentence in this state, a person must be convicted of first-degree murder enhanced by any one of about three dozen special circumstances — more than just about any other state (if California wants to reduce death sentences, it could start by reassessing these threshold crimes). There’s murder for hire. Murder to silence a witness. Killing a police officer. Wrecking a train. Using poison. Murder, even, when killing wasn’t the intent but occurred during the commission of any of a dozen other crimes. And on and on.
Who decides whether a murder case involves one of those special circumstances, and thus warrants the death penalty? A jury, followed by the trial judge’s affirmation (a judge can reduce a death sentence, but not order one if the jury didn’t recommend it). A jury, though, doesn’t consider a death sentence unless a prosecutor asks it to. And that’s one of the places where capital punishment is inherently inconsistent. National studies have found that whether someone faces a death sentence depends significantly on the county in which the crime is committed because county-level prosecutors are the ones who decide whether to put the death penalty in play. In fact, 2% of counties nationwide account for a majority of death sentences.
How inconsistent is application of the death penalty? From 2011 to 2015, California juries handed down 74 death sentences, more than half from Los Angeles and Riverside counties, with 23 each. Yet Riverside County is only one-quarter the size of Los Angeles County and had fewer than one-sixth of the homicides during that same time. Is the nature of homicide in Riverside that much more heinous than in Los Angeles County? No. The difference between the two counties lies in the makeup of the prosecutorial teams deciding whether to seek the death penalty, with the standard set by the elected district attorney.
Tellingly, there was a change in the Riverside district attorney’s office in January 2015, and the current top prosecutor, Mike Hestrin, has been less aggressive in pursuing the death penalty than his predecessor, Paul E. Zellerbach, who himself sought it less often than the D.A. he replaced. Further evidence that individual prosecutors make a difference: Hestrin inherited 22 capital cases and, after reviewing them, dropped the death penalty against seven defendants. So two different district attorneys, looking at the same seven cases, came to different conclusions on whether the crimes merited a death sentence.
Hestrin and others argue that county district attorneys represent the views of their constituents, which explains why liberal San Francisco County tends not to seek the death penalty and more conservative Riverside County does (of the 747 people on death row, one is a San Francisco County case compared with 89 from Riverside). Yet that is one of the many grave flaws of capital punishment in general, and in California specifically. Capital punishment is authorized only by state law, but there is no objective statewide standard against which factors are weighed and a decision is made. It is unconscionable that the specifics of a crime are subordinate to a prosecutor’s whim in determining whether a death sentence will be sought.
GOP Congressman Sensenbrenner explains why federal criminal justice reform is necessary to fix a "broken system" which is "fiscally unsustainable" and "morally irresponsible"
Representative Jim Sensenbrenner has a long and dynamic history working on federal criminal justice issues, and not that long ago he was an ardent supporter of many mandatory minimum sentencing provisions. But more recently, Rep Sensenbrenner has become a potent voice calling for federal reforms, and his latest pitch on that front appear in this new commentary headlined "Criminal Justice Reform Bills Are On The Table In Congress. Now It Needs To Pass Them." Here are excerpts from this piece:
In 2013, House Judiciary Chairman Bob Goodlatte (R-VA) created the Over-criminalization Task Force which examined the depth, seriousness, and complexities of the problems facing our federal criminal justice system. The findings that came from the task force allowed Members on the Committee to identify key problem areas and begin the reform process. Last year, momentum for criminal justice reform reached an all-time high. It united a wide range of law enforcement and political organizations, advocacy groups, and Congressional leaders under a common goal: to fix our broken system....
Although a large number the nation’s 2.3 million inmates deserve their place behind bars, too many low-level, non-violent individuals are caught up in broken system. Their incarceration diverts limited resources away from other priorities, such as policing and the capture and punishment of violent and career criminals. For too long, the pressing need for criminal justice reform has been put on the backburner. It has led to increasing financial burdens on taxpayers, violent outbursts in economically depressed neighborhoods throughout the nation, and the breakdown of hundreds of thousands of American families.
Fifty percent of the current prison population suffers from substance abuse problems, mental health issues, or a combination of both. Our criminal justice system is not equipped to provide these individuals with the help they need to gain control of their lives and acquire the critical work skills necessary to successfully re-enter society and the workforce. Without these basic tools, the likelihood of recidivism is high....
Each piece of legislation currently on the table addresses specific problems in the current system and offers common sense, fiscally responsible solutions that will increase public safety, support law enforcement and victims of crime, and decrease the overwhelming financial burden on hardworking taxpayers. However, none of it matters unless Congress is willing to pass legislation and President Obama is ready to sign it.
At the heart of federal criminal justice reform is the desire to create a better way forward for every American struggling under our broken system. Families ripped apart by incarceration, communities divided by a seemingly impenetrable wall between law enforcement and the neighborhoods they protect, and an ineffective justice system not only weakens the fabric of society, but hinders economic growth and opportunity for all Americans.
Three years ago, Congress began a journey to rectify the injustices in our federal criminal justice system. Right now, we have the opportunity to finish the job and pass meaningful and effective reform legislation. Our system cannot continue on its current trajectory. It’s not only fiscally unsustainable, but morally irresponsible. We must do better and we can do better.
Prior recent posts regarding some federal CJ work and statements by Rep Sensenbrenner:
- Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders
- In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform
- Rep. Sensenbrenner explains why "Now is the time for criminal justice reform"
September 16, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
"Clarity in Criminal Law"
The title of this post is the title of this timely new article authored by Shon Hopwood now available via SSRN. Here is the abstract:
Over the past thirty years, thousands of new federal criminal laws have been enacted, many of which are unclear and leave prosecutors and courts to now define the boundaries of the criminal code. Tolerating unclear laws in the criminal arena has always been problematic, but it is especially so in this era of overcriminalization and excessive punishment, where a lack of clarity can result in arbitrary application of criminal statutes and the sentencing consequences of a conviction are so severe. Although several justices have noted the lack of clarity in the criminal law, the Court as a whole has not fully reacted.
This Article suggests what that reaction should be. It argues for a more robust review of unclear federal criminal laws, using amplified versions of two tools already at the Court’s disposal: the rule of lenity and void for vagueness doctrine. Employing those doctrines vigorously would, in effect, create a clear statement rule in criminal law.
Detailing interesting sentencing dynamics in the latest batches of "term" commutations by Prez Obama
USA Today has this great new article highlighting an especially interesting aspect of the most recent clemency work by President Obama. The piece is headlined "For Obama, a shift in clemency strategy," and here are excerpts:
For 126 federal inmates who received presidential clemency last month, the good news might have come with a dose of disappointment. President Obama had granted their requests for commutations, using his constitutional pardon power to shorten their sentences for drug offenses. But instead of releasing them, he left them with years — and in some cases, more than a decade — left to serve on their sentences.
As Obama has begun to grant commutations to inmates convicted of more serious crimes, Obama has increasingly commuted their sentences without immediately releasing them. These are what are known as "term" commutations, as opposed to the more common "time served" commutations, and they represent a remarkable departure from recent past practice. Unlike a full pardon, commutations shorten sentences but leave other consequences of the conviction in place.
A USA TODAY analysis of Obama's 673 commutations shows a marked change in strategy on his clemency initiative, one of the key criminal justice reform efforts of his presidency. Before last month, almost all of the inmates whose sentences were commuted were released within four months, just long enough for the Bureau of Prisons to arrange for court-supervised monitoring and other re-entry programs. But in the last two rounds of presidential clemency in August, 39% of commutations come with a long string attached: a year or more left to serve on the sentence.
The strategy has also allowed Obama to commute the sentences of even more serious offenders. Before last month, 13% of inmates receiving clemency had used a firearm in the offense. For those granted presidential mercy last month, it was 22%. Through lawyers in the Justice Department and the White House Counsel's Office, the president is effectively recalculating the sentences using the federal guidelines in effect today — as opposed to the harsher penalties mandated by Congress in the 1980s and '90s.
While previous presidents have granted term commutations on a case-by-case basis — President Bill Clinton required a Puerto Rican nationalist convicted of seditious conspiracy to serve five more years, and President Richard Nixon made a Washington, D.C. murderer serve another decade — Obama appears to be the first to employ them as a matter of policy. "There are a number of cases where it’s a genuine re-sentencing. It’s unprecedented,” said former pardon attorney Margaret Love, who served under Presidents George H.W. Bush and Clinton. “That signals to me that the power is being used in a way it’s never been used before.”
There may also be a political calculation to the new clemency strategy, reflecting a general understanding that there's no guarantee that a President Hillary Clinton or Donald Trump would continue Obama's signature clemency initiative. While it's not entirely settled, most scholars believe a commutation warrant cannot be revoked by a future president once it's granted, delivered and accepted.
Explaining his philosophy on commutation power at a press conference last month — the day after he set a single-day clemency record by granting 214 commutations — Obama gave the example of an inmate who has already served a 25-year sentence but would have only served 20 if sentenced under today's laws. "What we try to do is to screen through and find those individuals who have paid their debt to society, that have behaved themselves and tried to reform themselves while incarcerated, and we think have a good chance of being able to use that second chance well," he said.
But increasingly, recipients of Obama's mercy are years away from paying their debt to society.
White House Counsel Neil Eggleston, who's the last stop for a clemency application before it goes to the president, acknowledged the change in strategy on Aug. 3, the day Obama issued 214 commutations. "While some commutation recipients will begin to process out of federal custody immediately, others will serve more time," he wrote in a blog post. "While these term reductions will require applicants to serve additional time, it will also allow applicants to continue their rehabilitation by completing educational and self-improvement programming and to participate in drug or other counseling services."
Critics say Obama is no longer reserving his clemency power for extraordinary circumstances, but instead substituting his own judgment for that of Congress and the courts. "To impose these things, and to have the commutation take effect after he leaves office — and even after the presidency of someone who succeeds him — seems inappropriate to me," said Rep. Bob Goodlatte, R-Va., chairman of the House Judiciary Committee.
But Goodlatte also acknowledged that the power to "grant reprieves and pardons for offenses against the United States" is one of the Constitution's most ironclad powers, and amending the Constitution would be difficult....
"He has effectively set himself up as a judge, reviewing thousands of cases where they’ve been prosecuted, convicted, sentenced and appealed beyond the district court level. And he's undercut all that work by commuting their sentences," Goodlatte said. "I think the president is taking a misguided approach to this issue when he tries to set himself up as a super-judge who would oversee the actions of a separate branch of government."
Mary Price, who has represented drug offenders seeking presidential clemency, said the president is the only person who can act under present law. "In our system, there's a heavy emphasis on finality of judgment," said Price, chief counsel for Families Against Mandatory Minimums, which advocates for changes in drug laws. "The court has no jurisdiction to go back and change that sentence." For inmates with one or two years left on their Obama-shortened sentence, the president's clemency could motivating them to prepare for reentry into society, Price said. One drug treatment program gives inmates an additional year off their sentence if they complete it.
While Obama's re-sentencing strategy is a departure from recent practice, experts note that presidents have granted term commutations before. For example, any commutation of the death penalty to life imprisonment would fit the definition of that the Justice Department calls a "term commutation," as opposed to the more typical "time served" commutation.
And if recent presidents haven't done it that way, it's more because they've granted so few commutations to begin with. As the White House is quick to note, Obama has now commuted the sentences of more prisoners than the previous 10 presidents — that's Dwight Eisenhower through George W. Bush — combined. "Is Obama doing it at some unprecedented level? I don't know. Maybe," said P.S. Ruckman Jr., a political scientist who has analyzed data on presidential clemency back to George Washington. "But I am not so sure what to make of that either," he said. "That's what checks and balances are all about."
September 16, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Thursday, September 15, 2016
Interesting (and already dated) census of problem-solving courts from BJS
The Bureau of Justice Statistics just released this interesting new report titled Census of Problem-Solving Courts, 2012," and here are its identified " HIGHLIGHTS":
In 2012, 65% of all problem-solving courts accepted cases after the defendant entered a guilty plea.
More than half (56%) of problem-solving courts in 2012 did not accept applicants with a history of violent crime and nearly two-thirds (65%) did not accept applicants with a history of sex offenses.
In 38% of veterans courts and 11% of domestic violence courts, applicants with a history of violent crime were ineligible.
Fifty-three percent of all problem-solving courts active in 2012 were established prior to 2005.
Most veterans courts (55%) were established between 2011 and 2012.
Participants in problem-solving courts spent a median of 1 year in the program in 2012.
Overall, 92% of participants who exited from problem-solving courts in 2012 successfully completed the program.
Twenty-one percent of youth specialty courts reported that 100% of participants completed the program in 2012.
Successful program completion commonly included dismissal of the case (61%) or a suspended sentence (40%).
Fewer than half (44%) of all problem-solving courts tracked participant progress after program completion in 2012.
"Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System"
The title of this post is the title of this intriguing article authored by Laura Appleman now available via SSRN. Here is the abstract:
Criminal justice debt has aggressively metastasized throughout the criminal system. A bewildering array of fees, fines, court costs, non-payment penalties, and high interest rates have turned criminal process into a booming revenue center for state courts and corrections. As criminal justice administrative costs have skyrocketed, the burden to fund the system has fallen largely on the system’s users, primarily poor or indigent, who often cannot pay their burden.
Unpaid criminal justice debt often leads to actual incarceration or substantial punitive fines, which turns rapidly into “punishment.” Such punishment at the hands of a court, bureaucracy, or private entity compromises the Sixth Amendment right to have all punishment imposed by a jury. This Article explores the netherworld of criminal justice debt and analyzes implications for the Sixth Amendment jury trial right, offering a new way to attack the problem. The specter of “cash-register justice,” which overwhelmingly affects the poor and dispossessed, perpetuates hidden inequities within the criminal justice system. I offer solutions rooted in Sixth Amendment jurisprudence.
September 15, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)
Grover Norquist and Wade Henderson say now is the time for federal statutory sentencing reform
This new National Review commentary authored by the notable pairing of Grover Norquist and Wade Henderson makes the case for having Congress finally getting sentencing reform to the desk of Prez Obama now. The piece is headlined "No Better Time Than Now to Pass Justice Reform," and here are excerpts:
Picture this: a legislative reform initiative that has garnered more than 70 percent approval from both Democrats and Republicans in state after state. Imagine a package of reform bills that has brought together elected officials from the left and right and passed through House committee with near unanimous support. Now consider that the speaker of the House is the biggest champion of these bills.
What issue has brought together both ends of Pennsylvania Avenue and has civil-rights groups working with top prosecutors and law enforcement? Justice reform. And given all this success, you would say these policies have every chance of becoming law, right? It’s not that simple, but it should be.
In the months since bipartisan-backed sentencing- and prison-reform legislation was introduced in the House of Representatives, Congress managed to name about ten post offices, revised coastal-barrier boundaries, ordered the Mint to create commemorative coins, and adopted bison as the national mammal of the United States.
In the states during that time, Minnesota introduced and passed the most significant reforms to its drug laws in 30 years. These bills reduced mandatory minimums for low-level drug crimes and devoted greater resources to treatment instead of incarceration. Iowa took similar steps. Maryland repealed mandatory minimum sentences for nonviolent drug offenses. Even states with high incarceration rates took action. Oklahoma and Louisiana eliminated employment barriers for those with criminal records. And Kentucky passed one of the most aggressive expungement bills in the country that seals criminal records for certain offenses.
It’s time for Congress to act on justice reform. The states have proven that treatment and rehabilitation in lieu of incarceration can often provide better outcomes. Unnecessarily harsh sentences for nonviolent offenders do not make better citizens; they lead them to commit more offenses. We also know that the easier it is for someone who leaves incarceration to get a job, improve his education, and support his family, the better shot he has at turning away from crime altogether.
In an election year, real reforms can easily get jettisoned for campaign-trail antics. Yet we know justice reform makes for good politics as well as good policy. In polling in battleground states such as Florida, Nevada, Ohio, and North Carolina, support for reforms that would reduce mandatory minimum sentences and focus resources on rehabilitation ranges from the low 70s to the high 80s for both Republicans and Democrats. These numbers show that the risk lies not in supporting these reforms, but in opposing them.
When one in three American adults has a record, these issues are now affecting every corner of society. That explains why the diversity of support for justice reform spans the breadth and depth of our political ideologies. Whether it’s about redemption and second chances, as is the case for religious groups such as the Southern Baptist Convention, or about reducing the cost of an ineffective system, as is the case for Americans for Tax Reform and many other conservatives, millions of Americans from all different perspectives are getting behind this movement....
Our justice system should be a part of the solution to crime and its root causes. We can do better than using a one-size-fits-all sentencing regime that lumps nonviolent offenders with violent ones. And when some estimates have re-arrest rates for ex-offenders at 65 percent within three years, we cannot afford to continue the status quo. The reforms on the table would improve outcomes while ensuring that public safety is a top priority.
The best chance we have of passing this legislation is now. The political stars are aligned, and support for reform is at a zenith. We need our elected officials to seize this moment and pass legislation that saves money and makes us safer. Congress must not squander this opportunity.
Wednesday, September 14, 2016
"Righting Wrongs: The Five-Year Groundswell of State Bans on Life Without Parole for Children"
In just five years — from 2011 to 2016 — the number of states that ban death-in-prison sentences for children has more than tripled. In 2011, only five states did not permit children to be sentenced to life without parole. Remarkably, between 2013 and 2016, three states per year have eliminated life-without- parole as a sentencing option for children. Seventeen states now ban the sentence.
This rapid rate of change, with twelve states prohibiting the penalty in the last four years alone, represents a dramatic policy shift, and has been propelled in part by a growing understanding of children’s unique capacity for positive change. Several decades of scientific research into the adolescent brain and behavioral development have explained what every parent and grandparent already know — that a child’s neurological and decision-making capacity is not the same as those of an adult. Adolescents have a neurological proclivity for risk-taking, making them more susceptible to peer pressure and contributing to their failure to appreciate long-term consequences. At the same time, these developmental deficiencies mean that children’s personalities are not as fixed as adults, making them predisposed to maturation and rehabilitation. In other words, children can and do change. In fact, research has found that most children grow out of their criminal behaviors by the time they reach adulthood.
Drawing in part from the scientific research, as well as several recent U.S. Supreme Court cases ruling that life-without-parole sentences violate the U.S. Constitution for the overwhelming majority of children, there is growing momentum across state legislatures to reform criminal sentencing laws to prohibit children from being sentenced to life without parole and to ensure that children are given meaningful opportunities to be released based on demonstrated growth and positive change. This momentum has also been fueled by the examples set by formerly incarcerated individuals who were once convicted of serious crimes as children, but who are now free, contribute positively to their communities, and do not pose a risk to public safety.
In addition to the rapid rate of change, legislation banning life without parole for children is notable for the geographic, political, and cultural diversity of states passing these reforms, as well as the bipartisan nature in which bills have passed, and the overwhelming support within state legislatures.
Currently, Nevada, Utah, Montana, Wyoming, Colorado, South Dakota, Kansas, Kentucky, Iowa, Texas, West Virginia, Vermont, Alaska, Hawaii, Delaware, Connecticut, and Massachusetts all ban life without parole sentences for children. Additionally California, Florida, New York, New Jersey, and the District of Columbia ban life without parole for children in nearly all cases.
It is also important to note that three additional states — Maine, New Mexico, and Rhode Island — have never imposed a life-without-parole sentence on a child. Several other states have not imposed the sentence on a child in the past five years, as states have moved away from this inappropriate sentence both in law and in practice.
September 14, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (13)
Why Oklahoma is having arguably the most important vote in Campaign 2016 for those concerned about criminal justice reforms
Though I am thoroughly depressed by my Presidential choices in Campaign 2016 (and remain distressing undecided about whether and how I will cast a top-of-the-ticket vote), I am thoroughly excited by all the interesting (and unpredictable) criminal justice reform initiatives that are going to voters in lots of states this November. The highest-profile reform initiatives are probably those in five states seeking to legalize recreational marijuana and the handful of others seeking to legalize medical marijuana. But also getting plenty of attention are the death penalty repeal/reform/retain votes that will take place in California and Nebraska. But this new article from Fusion, headlined "Why Oklahoma activists are bringing criminal justice reforms directly to voters," helps spotlight why I think criminal justice reformers should really be paying extra attention to the Sooner State. Here are excerpts:
Oklahomans will vote in November on two proposals that could significantly reduce the number of people sent to prison in one of the most incarcerating states in the country. The measures, State Questions 780 and 781, would reclassify simple drug possession and property crimes under $1,000 from felonies to misdemeanors. Instead of prison time, people convicted of those crimes would receive drug treatment, mental health treatment, and rehabilitation programs that would be paid for by the savings from not locking them up.
Oklahoma has the second-highest incarceration rate in the country, after Louisiana, and its prisons are at 115% capacity. If the measures are approved by voters, they’re expected to reduce annual prison admissions by 25%, the rate of new inmates who are currently convicted of low-level property crimes and drug possession. Because it costs Oklahoma $15,000 to incarcerate someone and only $6,000 to treat them while they’re on probation, the state could save between $30 and $40 million a year. Reducing the number of felonies would also mean less people would struggle to find employment, housing, and education because of a permanent criminal record. One in 12 state residents is a convicted felon, according to The Oklahoman newspaper.
Legislators and Governor Mary Fallin have already taken steps to reform the state’s criminal justice system, including lowering mandatory minimum sentences for drug crimes and raising the threshold for some property felonies to $1,000. But Kris Steele, the former Republican Speaker of the State House and one of the referendums’ chief backers, said most legislators would be wary of being tarred as “soft on crime” if they passed broader reforms to drug laws.
“We want to sort of bypass the political gridlock that has set us back and give the people of Oklahoma a chance to weigh in on these issues,” he told me. “If we are successful in November, I truly believe the legislature will feel like the people have spoken and that it’s OK and probably even expected to take a smarter approach to criminal justice policy.” Of course, the opposite is also true. “If these state questions do not pass in November, it’s likely that the legislature will interpret that result as the people have spoken and we’re probably done talking about this issue for the next 10 years,” he said. “That keeps me up at night.”
That makes it a high-risk, high-reward proposition for criminal justice activists, who so far have been mostly focused on lobbying legislators. The only other state with criminal justice reform on the ballot in November is California, where voters will decide whether to support a measure backed by Gov. Jerry Brown that would allow thousands of inmates serving time for nonviolent charges to get early parole. (Californians and Nebraskans will also vote on referendums over ending the death penalty.)...
Nationally, polls show that Americans support reforms to reduce sentences for low-level criminals, especially those convicted of drug crimes. Steele said internal polling has shown Oklahomans are also supportive of the measures. The coalition of groups supporting the initiatives — known as Oklahomans for Criminal Justice Reform — includes the state branch of the American Civil Liberties Union, the conservative group Right on Crime, and several law enforcement leaders. So far, supporters of the initiatives have collected 110,000 signatures to get each of the measures on the ballot and held a series of town hall meetings around the state promoting them. Now they’re planning direct mail and TV ads in the two months until election day....
There doesn’t seem to be any organized group opposing the measures, although some sheriffs and prosecutors have spoken out against them. The proposals’ supporters want “to let everybody out of prison, and that’s not what’s healthy for the communities,” Greg Mashburn, the DA for Cleveland County, told The Norman Transcript. Steele said he’d encourage activists in other states to take reform initiatives straight to the voters. “It’s resulted in a very healthy conversation happening in our state” about the costs of mass incarceration, he said—one that wouldn’t have happened otherwise.
For so many reasons, I think this direct democracy vote in Oklahoma could have profound echoes throughout the nation, especially if "deep red" Oklahoma voters, while mostly voting for "law and order" Prez candidate Donald Trump, end up voting for significant sentencing reform in the state. Not only will approval of sentencing reforms by direct democracy likely make Oklahoma elected officials feel more comfortable moving forward with legislative reforms, I think it will send a very strong message to lots of political observers and policy advocates nationwide that the "Right on Crime" movement has real majority support among even conservative-minded voters.
Based on developments in many states and especially at the federal level, it still seems the reality that many politicians, especially older ones on both sides of the aisle, continue to believe quite strongly that vocally supporting significant criminal justice reforms risks a kind of political suicide. That said, the recent modern success that "deep red states like Texas and Georgia have experienced with "smart-on-crime" reforms has played a major role in giving the "Right on Crime" movement momentum, and that momentum has carried over in a number of other red and purple states. But at the federal law, persistent "soft-on-crime" political fears, especially among "old-guard" Democratic leaders like the Clintons and Senators Reid and Representative Pelosi, in my view largely explains why significant statutory sentencing reforms (other than the middling Fair Sentencing Act) have not gotten done throughout the Obama era.
Many people for sensible reasons think the fate of federal sentencing reforms now will turn on who is the next occupant in the Oval Office and who controls the Senate. But I really believe that if Oklahoma voters end up significantly supporting sentencing reform in their state (especially if Trump wins in OK by, say, a 55/40 vote but then sentencing reform is supported by a 60/40 vote), we all can and should become a lot more optimistic about even federal sentencing reforms over the next decade no matter who is in control in DC. For this reason (and others), I strongly believe that criminal-justice-reform-minded "big donors" — yes, I am talking to you Koch brothers and Mr. Soros — should think very seriously about devoting resources to this initiative campaign where a little extra campaign investment could go a very long way in fostering reform in a lot more places than just Oklahoma.
Highlighting polling reality that death penalty remains pretty popular on Left Coast
Ed Morrissey has this effective new commentary about the latest capital punishment polling under the heading "Hmmm: Blue California wants to keep its death penalty, 52/36." Here are excerpts (with a few links retained from the original):
California voters, among the most reliably liberal in the nation, have an opportunity to pass a repeal of the death penalty in November. Proposition 62 would commute the sentence of those on California’s Death Row to life without parole and require a higher percentage of inmate income to go to victim restitution. With opposition to the death penalty a big progressive goal, and with California’s execution process among the slowest and most frustrating in the nation, one would expect overwhelming support for Proposition 62.
Not so, according to a new poll from Survey USA. In fact, opposition to repeal leads by sixteen points, 36/52, and leads among almost all demographics. Majorities of both men (38/54) and women (33/50) oppose repeal. Voters under the age of 35 oppose it in plurality (40/45), but all other age groups oppose it by majorities and double-digit gaps. Black voters and Democrats support repeal, but not significantly enough to overcome overwhelming opposition among all other ethnic and partisan groups. Perhaps most tellingly, the only ideological demo to support repeal are those who identify as “very liberal” — and even then unimpressively at 52/32. Even the ultra-liberal Bay Area has a slight plurality opposed to repeal, 42/47....
The problem with the death penalty in California (besides the issues that form my general opposition to it) is that it’s almost purely academic. California hasn’t executed anyone since 2006, and Clarence Ray Allen had been on Death Row for more than 23 years at that point. That was the second-longest string for those who eventually got executed; Stanley “Tookie” Williams spent almost 25 years waiting for his execution, which finally came in December 2005. They are two of only 13 inmates executed since the reinstatement of the death penalty in 1978.
How many are actually on Death Row now? The state’s September 2016 lists 747 inmates, with sentencing dates from 1982 to this past May. Eight times more inmates have died of other causes (104) than of executions (13).
Death penalty proponents will also have a referendum on the November ballot. Proposition 66 would offer several reforms to speed up the execution process, including expediting all appeals to the state Supreme Court and having attorneys assigned to death-penalty appeals immediately. Presumably this will find more support than Proposition 62, although SUSA didn’t poll on it. Will Californians take steps to fix its capital-punishment system — or be satisfied with a Death Row that just waits inmates to death?
Tuesday, September 13, 2016
Eleventh Circuit judges discuss guidelines and vagueness at great length after denying en banc review in Matchett
As regular readers should recall (and as I like to remind everyone), in this post right after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career-offender guideline of the US Sentencing Guidelines. As I have noted before, the Justice Department has consistently conceded Johnson-based constitutional problems with that guideline, even though there was some prior rulings in some circuits that the federal guidelines could not be attacked based on traditional void-for-vagueness doctrines.
In the last year, most of the circuit courts, perhaps moved a lot by DOJ 's view, have come to rule that vagueness challenges to the guidelines are proper and have concluded that there are Johnson-based constitutional problems with sentences based on the old career-offender guideline. But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.
As I have previously noted, I consider the ruling Matchett suspect; but an amicus brief I helped put together urging en banc review in Matchett was not sufficiently convincing to that court. Today, as revealed here, the Eleventh Circuit announced that a majority of its members voters against considering this issue en banc. (For practical reasons, even though I disagree on the merits, this decision now makes sense: as blogged here this past June, we now have the ultimate judicial authority on this issue poised to weigh in:the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whetherJohnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.)
The actual order denying en banc review is only one-sentence long. But following the order comes 80+ pages of fascinating concurring and dissenting opinions that will surely intrigue any and everyone closely following the legal and practical issues that Beckles implicates. Highly recommended reading for all sentencing fans and law nerds.
Fascinating pictures of "What It Looks Like to Be Behind Bars in Four Different Countries"
The quoted portion of this post title is drawn from the headline of this new Slate article providing something of a sneak-peak into what looks likely to be a very interesting book to look at. Here is how the Slate article begins (though everyone should really click through to see some pictures that strike me as fascinating in so many ways):
After photographing civil servants in eight countries across five continents for his book, Bureaucratics, Jan Banning thought looking at criminal justice systems around the world seemed like a logical next step. In his new book, Law & Order: The World of Criminal Justice, which will be released in the United States this fall, the Dutch photographer brings readers up close to prisons, police, and courts in Colombia, France, Uganda, and the United States.
“I’m interested in these aspects of society that are vital but not necessarily considered to be picturesque,” he said. “Basically, it’s an attempt to visually cope with the question of how we handle crime. I think it always makes tremendous sense to compare different societies as I’ve done with Bureaucratics because, of course, in comparison, the character of a specific society comes out.”
After discussing which countries to focus on with the Max Planck Institute for Foreign and International Criminal Law, Banning started his investigation with a trip to Uganda in 2010. In about two weeks, he was given access to a handful of prisons, and on subsequent visits he was able to visit 10 prisons of various security levels. Even in maximum security establishments, his guide tended to be just a single unarmed warden or assistant, which was indicative of environments he found to be “rather friendly and rather humane.”
“In the beginning, I was a bit suspicious. I thought, ‘OK, maybe this is a PR exercise and they’re just doing this for me.’ But I noticed it in all 10 prisons I was in, and some were tiny local prisons where you wouldn’t expect the personnel to have any idea of PR. So I thought that was honest,” he said. “Of course, the prisons there are still not a place where you’d love to be. They’re overcrowded, half the prison population hasn’t been on trial, and some have been sitting there without charges for five or six years.”
Uganda’s open system allowed him to get some of the more colorful photographs in the book. In the United States, his visits were much more restricted. The prisons themselves, meanwhile, tended to be a lot less visually interesting than those in Uganda, but Banning said he embraced the sterility in his photographs and thought it was important to communicate it in “a fair and relevant way.”
"As Marijuana Prohibition Winds Down, What Will Control Freaks Ban Next?"
The title of this post is the enjoyably provocative headline of this notable new Reason piece authored J.D. Tuccille. Here are some excerpts which appeal to my libertarian instincts while also highlighting why I think much more that just the wicked weed is implicated in movements to reform modern marijuana laws:
As Prohibition, America's first national effort to penalize people for taking pleasure in imbibing psychoactive substances, became increasingly unpopular and widely flouted at the end of the 1920s, an assistant commissioner for the United States Bureau of Prohibition cooked up a successor project. Harry Anslinger left his old gig and took on the role of commissioner of the new Federal Bureau of Narcotics — a predecessor agency to the DEA — and helped launch the national crusade against marijuana. It was a newly demonized intoxicant to give purpose to the power and personnel that had been assembled for the faltering crusade against booze.
"This propitious marriage of state power and moral suasion would yield a dramatic expansion of federal policing and an increase of state and local policing in the quasi-military sphere of crime control," Harvard historian Lisa McGirr writes in her 2015 book, The War on Alcohol: Prohibition and the Rise of the American State. "The war on alcohol and the war on drugs were symbiotic campaigns," McGirr told Reason in an interview. "Those two campaigns emerged together, [and] they had the same shared...logic. Many of the same individuals were involved in both campaigns."
McGirr sees the "federal penal state" of intrusive policing and mass incarceration that arose during Prohibition as the result of the combined efforts of old-time religious scolds who disapproved of alcohol use and Progressives who were eager to use state power to address what they saw as social ills. Together they nationalized what had traditionally been an individual, local, or state concern, gave the government unprecedented power to regulate people's lives, and escalated their efforts as people refused to submit.
But even as it was a consequence of growing state power, Prohibition also helped to normalize the idea that the federal government could and should boss us around. "Faced with the unintended consequences of Prohibition, many men and women began to rethink their commitments to the war on alcohol, but they did not altogether reject the state's right to police and punish the use of other recreational narcotics," McGirr adds in her book.
People also grew accustomed to an activist and intrusive state overall, paving the way for the New Deal and the regulatory state of today. A massive government apparatus, once created, can be used for any purpose its masters desire. "War is the health of the state," Randolph Bourne famously noted. But war doesn't necessarily require ships and planes launched against other nations; it can be waged against a government's own people by police who are empowered by the law to see enemies behind every door.
Then as now, the law was unevenly enforced. If you were a New York socialite during Prohibition, you could continue to drink illicit booze at parties or in speakeasies in relative safety since you weren't considered part of a "problem" population and could push back against authorities — urban ethnics were deliberately targeted for harsher treatment when they broke the law, as were rural blacks. Likewise, Malia Obama was at little risk of more than a parental tongue-lashing when she was caught smoking a joint last month while young people — African-Americans, in particular — whose fathers don't reside in the White House often suffer nastier consequences in the absence of helpful political connections.
Even for booze, the double standard for enforcement remains. While mayor of New York City, national nanny Michael Bloomberg ceaselessly sought to mold and scold his own suffering subjects as he broke the law himself to quaff wine in public. "They were behaving," he said of his friends who were given a pass by police. He's not one of those people, you know, and so he and his buddies shouldn't have to obey rules meant to rein in "problem" groups.
So the desire to control remains in place, nurtured by policy-makers and their supporters who never intend themselves to be the target of enforcement. That desire remains even as public pushback causes yet another prohibition to stumble and fall. Prohibition has its own logic — of control and power — that has very little to do with the specific prohibition at any given moment. Those who would mold the world to suit their vision see no reason to back off their efforts, they've created a vast bureaucracy of enforcers who make their living pushing us around, and they've accustomed us to a state that pokes and prods us at every turn.
So celebrate the relegalization of marijuana for sure. Just don't convince yourself that it means we've seen the end of prohibition, or of the abuses that intrusive government brings. The next big prohibition might be kratom, or another drug, or a grab-bag of substances and activities of which our rulers disapprove. What is banned matters less than the fact of the ban and the apparatus that keeps the ban in place. Winning doesn't mean ending a prohibition, it means disempowering the prohibitionists.
In addition to providing an amusing post title, this commentary inspires me to remind readers once again that one way to keep up with marijuana prohibition winding down is to regularly read my Marijuana Law, Policy and Reform. There you will find these recent posts, among many, many others:
- Crimmigration and cannabis: "Marijuana Is Legal in Colorado — But Only If You're a U.S. Citizen"
- "Study: Can marijuana improve PTSD symptoms for veterans?"
- New medical marijuana regulations create rift among California's marijuana policy reform advocates
- New research indicates that daily marijuana users are less fat
Proving punitiveness does not go out of style, prison populations ticking up even in states with recent track record of declines
This astute new Wall Street Journal article, headlined "Inmate Populations Rise Again in Some States: Opiate addiction and high-profile crimes spur legislators to toughen drug and parole policies," reinforces my sense that the era of mass incarceration is a very long way from being over. Here are snippet from the piece:
An epidemic of opiate addiction and a handful of high-profile crimes have set back efforts by some states to restrain their prison populations, revealing cracks ina bipartisan movement to reduce reliance on incarceration.
In Arkansas, Republican and Democratic lawmakers in 2011 passed a landmark law to reduce harsh drug sentences, as a way to curb costs from overcrowded prisons. The prison population dropped 10% in two years. Then, in 2013, a man who had been released from prison and arrested several times while on parole carjacked and fatally shot an 18-year-old man in Little Rock.
In response, state officials tightened parole policies, and authorities put parolees back behind bars for violating the terms of their release as fast as they could, said Dina Tyler, a state prison official at the time who is now a deputy director at the agency overseeing parole in Arkansas. “It was a natural reaction because something bad happened, and we don’t want it to happen again, so we’ll scoop them all up,” said Ms. Tyler.
The result: Arkansas’s prisons are more crowded than they were before the 2011 legislation. As of late August, the number of prisoners had risen to 18,243, a 25% increase from 2012. Similar reversals have occurred in a handful of other states in recent years, exposing the fragility of an effort to curb prison growth and focus resources on keeping offenders from returning to crime. “It just takes one incident to get things tracking in a different direction,” said James Austin, president of the JFA Institute, a criminal-justice research group that works for Arkansas and other states to forecast prison-population trends, referring to the 2013 Little Rock murder.
A review of prison data from 2007 to 2014, the most recent year analyzed by the U.S. Justice Department’s research arm, shows that at least five states — Arkansas, Hawaii, Kentucky, New Hampshire and Ohio — saw their incarcerated populations fall or stabilize after passing criminal-justice legislation only to see them rise again. Incarceration rates also rebounded in most of those states, and in others that passed laws targeting prison growth, including Arizona and Wisconsin, after dropping initially.
Overall, the percentage of American adults under correctional supervision declined 13% from 2007 to 2014, according to a Pew Charitable Trusts analysis of federal Bureau of Justice statistics. Prison rates dropped in most of the roughly 30 states that passed laws to curtail prison growth in that time, BJS data show. Even in states where rates increased, state officials and criminal-justice experts say such laws have helped slow prison growth, averting millions of dollars in prison costs.
Still, efforts to curtail prison growth have been hampered by uneven implementation of new laws, state officials say. Elected judges in Kentucky and Ohio, for instance, have shown a reluctance to cut sentences and divert offenders into treatment rather than sending them to prison, state officials said. Parole officials haven’t granted early release as often as lawmakers had hoped they would, they said.
The increase in opiate use also has played a role. In Kentucky, the number of jail and prison inmates climbed back to a near record this summer, the state corrections department said, after a drop following a 2011 law. That measure reduced prison time for drug possession, routing the savings into drug treatment, and linked recently released prisoners to community resources. John Tilley, Kentucky’s justice and public-safety secretary, who sponsored the overhaul as a state legislator, attributed the increase to offenders returning to prison in higher numbers and drug arrests fueled by the “heroin scourge.” Last year, Kentucky ratcheted up penalties for trafficking heroin and created a new offense for importing drugs across state lines....
The prison population in Ohio dipped after lawmakers overhauled state sentencing laws in 2011, but it has rebounded this year to nearly 51,000, just shy of the record, according to state figures. “We’ve done all these things, but because of the spike in heroin, we have this uptick,” said Sen. Bill Seitz, a Republican who has led an effort to halt prison growth.
Civil-liberties advocates said scores of new penalties in Ohio have contributed to the rise in prison population. This year, the Legislature made it easier to prosecute people for heroin-trafficking, for example, reducing the threshold for the crime from 250 grams to 100 grams. In May, after staff at the Cincinnati Zoo shot a gorilla to save a boy who had fallen into the animal’s enclosure, legislators talked a colleague out of proposing a new crime for parents who let their child wander into a situation that requires the killing of an endangered animal, Sen. Seitz said. “We try to kindly tell our colleagues we cannot continue to make everything a crime or increase penalties on everything that already is a crime without further contributing to this overcrowding,” Mr. Seitz said.
Does anyone want to speculate about SCOTUS politics if Prez Obama had nominated, say, Judge Ketanji Brown Jackson?
I am prompted to prompt the question in the title of this post after review of this interesting Washington Post article, headlined "Did Obama squander an opportunity by nominating Merrick Garland?". Here are a few notable excerpts from the lengthy piece:
No Democratic Senate candidates are talking about Garland in paid television ads. No one mentioned Garland during the Democratic National Convention in July, including Barack Obama.
Hillary Clinton has not committed to re-nominate Garland if she’s elected. While she talks about the Supreme Court, she almost never talks about him.
Some Democrats privately fear that Obama blew an opportunity to help re-activate the coalition that elected him twice by not picking a more progressive nominee — especially a minority candidate — to replace the late Antonin Scalia. Had Obama nominated someone who really ginned up the Democratic base, perhaps Clinton and the party would have more whole-heartedly embraced him or her....
The National Organization for Women signed onto an open letter urging Obama to appoint an African American woman to the court after Scalia died. When Garland was announced, the group expressed concern that he is “more or less a blank slate” on core women’s issues like reproductive rights.
NOW President Terry O'Neill wants the Senate to confirm Garland but she also thinks about how different the dynamic might be right now had the president gone with a more progressive black woman instead of a 63-year-old moderate white man. “I’m not going to say there wasn’t some disappointment,” she said in an interview last night. “I am very positive that the progressive community would be extremely active in promoting a more left-leaning appointment.”
O’Neill posited that an African American woman might have provided a clearer contrast. “Suppose he had nominated an African American woman,” she said. “No matter how moderate she might be, Republicans would say she’s way too out there and way too radical. The same way they talked about President Obama. … I don’t think you can eliminate race from understanding what these senators are doing. There’s no white president that’s ever been treated so disrespectfully.”
She lamented the paucity of media coverage about the vacancy. “Any African American woman who might have been nominated would have been viciously attacked,” O’Neill added. “It’s possible, if those vicious attacks would have happened, then the American public would have been much better informed of the outrageousness of what the Republicans are doing.”
Many of the same progressives who are not enthusiastic about Clinton are also not enthusiastic about Garland. Bernie Sanders said this spring as he campaigned for the Democratic nomination that he would ask Obama to withdraw Garland if he got elected so he could pick someone more liberal.
“We saw some of the highest grassroots energy in our eight year history in the run up to the president's Supreme Court nomination, and when the choice was Merrick Garland that energy completely plummeted,” said Adam Green, co-founder of the Progressive Change Campaign Committee.
Leaders in the African American community have called for a vote on Garland, but a lot of the key groups were also less than thrilled with his selection. Other liberal organizations like Democracy for America, which was founded by Howard Dean, said when Garland was nominated that it was “deeply disappointing that President Obama failed to use this opportunity to add the voice of another progressive woman of color to the Supreme Court.”
As readers may recall, the only woman of color who was seriously vetted for this open SCOTUS spot was US District Judge Ketanji Brown Jackson. I thought back in March and continue to think today that the politics around SCOTUS would be much different if Prez Obama made a ground-breaking rather than just a moderate pick. In addition, as I highlighted in this post in February, GOP House Speaker Paul Ryan spoke in glowing terms abut Ketanji Brown Jackson at her confirmation hearing to become a US District Judge: as he put it, "she is clearly qualified. But it bears repeating just how qualified she is.... Now, our politics may differ, but my praise for Ketanji's intellect, for her character, for her integrity, it is unequivocal."
I think it quite likely that, had Prez Obama nominated Judge Brown Jackson, we would be seeing Democratic Senate candidates talking about her in TV ads. I am certain that a number of folks would have mentioned her during the Democratic National Convention in July, and I suspect Hillary Clinton would commit to re-nominate her if she’s elected. Speculating even further, I imagine lots of Democratic senators and House members would be pressing Speaker Ryan to voice support for giving Judge Brown Jackson at least a hearing. And, to really go for it, I could even imagine Colin Kaepernick saying, when asked when he will stand again for the National Anthem, that he will get off his knee if the US Senate moves forward on the SCOTUS nomination of Judge Brown Jackson.
Prior related posts on new SCOTUS nominee possibilities:
- Off the cuff (bad?) SCOTUS advice for Prez Obama: nominate current AG Loretta Lynch tomorrow
- Prognosticating SCOTUS possibilities in light of existing politics
- New SCOTUS short-list name to excite sentencing fans: Judge Ketanji Brown Jackson
- Can readers help discount my fears that sexism and racism account, at least in some small part, for why conservatives are belittling the intellect of Judge Ketanji Brown Jackson?
- The latest SCOTUSblog analysis of the top contenders for SCOTUS nomination
- After a month, Prez Obama makes ("consensus"?) pick of DC Circuit Chief Judge Merrick Garland for SCOTUS opening
Monday, September 12, 2016
Former GOP Ohio Attorney General explains why he is convinced "the death penalty is just not worth it any more"
Over the weekend my local paper published this capital commentary by Jim Petro, a widely-respected local Republican leader who served as Ohio Attorney General from 2003 to 2007. Here are excerpts:
As Ohio attorney general, I oversaw 18 executions in accordance with Ohio law. As a state legislator before that, I helped write Ohio’s current death-penalty law. We thought maybe it would be a deterrent. Maybe the death penalty would provide cost savings to Ohio. What I know now is that we were wrong. What I am coming to understand is just how wrong we were, and what needs to be done to fix our mistake.
My direct experience with executions makes me more than a mere spectator as Ohio continues to struggle with capital punishment. Since I left office in 2007, I’ve been following developments and watching those most deeply engaged with it.
Earlier this week, Ohioans to Stop Executions (OTSE) released its third report in as many years, providing perspectives on the status of Ohio’s death penalty. I am in agreement with the report, “A Relic of the Past: Ohio’s Dwindling Death Penalty,” which details a continuing decline in executions and new death sentences in Ohio while highlighting the disparities between counties that prosecute death cases.
In 2015, only one new death sentence was handed down. Cuyahoga and Summit counties, two jurisdictions responsible for more than 25 percent of death sentences, initiated zero new death penalty cases last year. In fact, new death sentences overall were down for the fourth year in a row. There were three in 2014, four in 2013, and five in 2012.
It has become clear to me that what matters most is the personal predilections of a county prosecutor. Consider Cuyahoga County, which until 2012 was seeking the death penalty in dozens of cases a year. Last year Cuyahoga County sought none. Crime rates did not plunge. There was a new prosecutor. On the other hand, consider Trumbull County, with one of the lowest homicide rates of Ohio counties which sentence people to death. Trumbull County leads the state with the highest death-sentence-per-homicide rate. Why? Again, the personal preference of the county prosecutor matters most.
The new OTSE report addresses many other issues, including 13 wrongful convictions and exonerations in Ohio death cases. After serving as attorney general, my chief concern was that our state has sentenced individuals to death or lengthy prison sentences for crimes they did not commit....
Most urgently in my view, the new report catalogs the reluctance of Ohio legislators to consider most of the 56 recommendations made in 2014 by the Supreme Court Joint Task Force on the Administration of Ohio’s Death Penalty. The charge to that task force was to find ways to make Ohio’s death penalty more fair and accurate.
Only a handful of the recommendations have been considered, and not those which would make the biggest difference. For example, the recommendation to narrow the felony murder rule would address much of Ohio’s disparity in death sentencing. Thirteen of the recommendations, individually and collectively, would go a long way toward preventing wrongful convictions. In failing to act, legislators effectively maintain the status quo, which is a broken system that currently serves only the interest of Ohio prosecutors. That is a grave mistake.
Another grave mistake is the terrible suggestion by the director of the Ohio Prosecuting Attorneys Association that Ohio adopt the gas chamber to conduct executions. I hope Gov. John Kasich and all Ohio legislators soundly reject that notion. It is offensive to the human experience and has no place in our great state.
I am convinced that the death penalty is just not worth it any more, and I don’t think it can be fixed. Starting in January 2017, 28 Ohioans have execution dates. If we’re going to have the death penalty, then it must not be carried out until the legislature implements the task force’s reforms intended to ensure fairness and accuracy.
"Does the Supreme Court still believe in prosecutorial discretion?"
The question in the title of this post is the first line in this terrific new commentary by Randall Eliason at his Sidebars blog under the title "White Collar Crime, Prosecutorial Discretion, and the Supreme Court." I recommend everyone (and not just white-collar fans) to read the entire piece, and here is a taste of the astute discussion seeking to answer the question posed:
Prosecutorial discretion – the power to decide whether to bring criminal charges, who to charge, what crimes to charge, and how ultimately to resolve the case – is a fundamental component of the criminal justice system. The legislature enacts the laws but the executive branch enforces them, which includes making judgments about when and how to bring a criminal case.
On the macro level, this means setting national and local law enforcement priorities and making decisions about the deployment of finite prosecutorial resources. Different administrations at different times have declared areas such as health care fraud, narcotics, illegal immigration, or terrorism to be top priorities and have allocated resources accordingly. Such decisions necessarily mean other areas will not receive as much attention; a dollar spent fighting terrorism is a dollar that can’t be spent investigating mortgage fraud.
On the micro level, prosecutorial discretion involves deciding whether to pursue criminal charges in a given case and what charges to pursue. Factors such as the nature of the offense, strength of the evidence, the nature and extent of any harm, adequacy of other potential remedies, any mitigating circumstances or remedial efforts by the accused, and prosecutorial resources and priorities all may come into play....
In [a series of] recent [SCOTUS] cases, when faced with the interpretation of white collar crimes such as bribery, honest services fraud, and obstruction of justice, the Court’s approach has been to interpret the statutes narrowly and consequently to remove charging discretion from federal prosecutors....
[T]he Court may believe it needs to interpret criminal statutes more narrowly because it cannot always trust prosecutors to exercise sound judgment when enforcing broadly-written statutes. As Justice Kennedy suggested during the Yates argument, it may be that the Court no longer thinks of prosecutorial discretion as a viable concept.
Of course, some critics of federal prosecutors will welcome this development and suggest it is long overdue. And some will point out that, for prosecutors, this may be considered a self-inflicted wound. The charging decisions in cases like Yates and Bond in particular may be what led the Justices openly to question whether prosecutors should continue to be entrusted with the same degree of discretion.
But it would be unfortunate if the Justices truly come to believe they cannot rely on prosecutors to exercise sound judgment in charging decisions. One can always argue about the merits of particular cases, but overall our system of broadly-written statutes enforced by the sound exercise of prosecutorial discretion has worked pretty well. If the Court continues to chip away at those statutes due to concerns about controlling prosecutors, it will continue to create safe harbors for some conduct that is clearly criminal.
I could write a series of law review articles about all the interesting and important modern issues that this commentary raises. With a particular focus on sentencing issues, I think it is not a coincidence that we are seeing the trend identified here at the same time there are widespread concerns about mass incarceration, the severity of some sentences for nonviolent offenders and the spread of significant collateral consequences for all convicted persons. Also, given that states can (and often will) prosecute any serious criminal activity not clearly covered by federal statutes, I really do not think we need to worry too much about narrow interpretations of broad federal criminal statutes.
Spotlighting the import, impact and new debates over prosecutorial control of charging juves as adults
The Atlantic has this effective new article digging deeply into the role (and possible regulation) of prosecutors in the decision to try certain juvenile defendants in adult court. (As practioners know, the decision to bind a juvenile over to adult court is often essentially a sentencing decision because the decision will often dramatically impact the maximum and minimum sentences a juvenile defendant will face.) The lengthy piece carries this lengthy headline: "Treating Young Offenders Like Adults Is Bad Parenting: As one state wrestles with the effects of trying juvenile defendants in adult courts, others reconsider the practice." I recommend the piece in full, and here are excerpts:
In 2000, voters in California approved Proposition 21, a ballot measure that, among other things, gave district attorneys the right to “direct file” juvenile offenders who committed felonies and other serious crimes like murder and sex offenses. Direct filing gives the D.A. alone the power to decide whether or not a young offender should be tried as an adult in an adult court instead of in the juvenile-justice system. In all, 15 states and Washington, D.C., have such a mechanism in place. In California, the D.A. has to make that decision within 48 hours of an arrest and usually only has the police report to guide his or her decision. In 2014, 393 young people were direct filed and tried in state adult courts. The state attorney general’s 2015 juvenile-justice report states that 88 percent of juveniles tried in adult court were convicted. Call this parenting style the tough-love approach.
Deciding to direct file a young person circumvents the role of a judge, who would otherwise conduct a “fitness hearing” to determine where an offending youth should be tried. It’s like one parent quickly and unilaterally deciding on a child’s punishment without first talking it over with the other parent. In some cases, the second parent might stand firmly behind the first, but in others, being eliminated from the decision can lead to feelings of disrespect, accusations of power-hoarding, and the unearthing of buried tensions in the relationship.
“With direct file, there’s no opportunity for it to go before a judge to make that very important decision on whether or not a child should be prosecuted as an adult,” said Nisha Ajmani, a lawyer and program manager at the Center on Juvenile and Criminal Justice who opposes the practice. She works with lawyers and young clients on direct-file cases or to prepare for fitness hearings.
But the district attorney has an incentive to eschew fitness hearings, since in California they are exhaustive and can take months. The hearings involve evaluating the young person on five criteria: the degree of criminal sophistication exhibited; whether rehabilitation is possible before the end of the juvenile court’s jurisdiction, at age 21; the delinquency history; the success of any previous attempts at rehabilitation by the juvenile court; and the circumstances and gravity of the offense that’s alleged.
California has worked in earnest in recent years to provide judges more guidance on those fitness criteria. Now the state also emphasizes factors such as the offender’s home and family environment growing up, exposure to violence and trauma, mental and emotional development, and circumstances outside of the seriousness of the crime that might be relevant to the decision to prosecute in an adult court. Call this parenting style the holistic approach. “A judge should really be the party making that decision after a fair, thorough, and neutral process,” Ajmani said, warning that district attorneys subject to elections often want to appear tough on crime to ensure their political viability. “It shouldn’t be the prosecutor who only has 48 hours to make that decision and is inherently biased to begin with.”
“The absolute reality is that we, as prosecutors, have an immense amount of power in California,” said Patrick McGrath, the Yuba County district attorney. “In some respects, I think almost everybody would agree that the extent of power that we have over charging and case disposition probably really exceeds the amount of power that a judge has.” But McGrath doesn’t think that power is misplaced: He employs direct file in his county and supports its basic premise.
Sunday, September 11, 2016
Is Ohio again about to pioneer a new execution method?
The question in the title of this post is prompted by this Columbus Dispatch article from last week headlined "Ohio looks at nitrogen as a new execution method." Long-time readers may recall, from this post back in 2009, that Ohio was the first state to switch to a one-drug lethal injection protocol after it botch an execution. And, as this new article explains, new problems with lethal injection plans may prompt Ohio to become an execution pioneer again. Here are the details:
Ohio might consider adding nitrogen gas as a new execution method because of problems securing lethal injection drugs.
There have been no executions in the state for 2½ years, largely because of lawsuits and difficulty obtaining drugs for lethal injection. Beginning in January, there are 28 convicted killers with execution dates scheduled over four years.
John Murphy, executive director of the Ohio Prosecuting Attorneys Association, said today lethal injection is "stalled" and it's time for a change. Prosecutors have long been strong supporters of Ohio's death penalty law. "I think the legislature ought to recommend another method of execution," Murphy said in an interview. He recommends switching to nitrogen gas, a method he called "humane and reasonably inexpensive."
Nitrogen gas, pumped into an air-tight chamber, produces asphyxiation by a lack of oxygen in the blood. It has not been used for executions, although Oklahoma adopted it as a backup method. The sponsor of the Oklahoma law called it "foolproof." People occasionally die accidentally from nitrogen asphyxiation. Deep-sea divers sometimes suffer from a form of it, producing an effect often described as euphoric. The gas is widely available and inexpensive.
JoEllen Smith, spokeswoman for the Ohio Department of Rehabilitation and Correction, said the agency "continues to seek all legal means to obtain the drugs necessary to carry out court-ordered executions." State Rep. Jim Butler, R-Oakwood, chairman of the House Judiciary Committee, said, "It's good to look at alternative methods that are humane. That's something we should definitely do." But Butler added, "One problem is if it's something that's not been tried before, you need to vet it to make sure it's appropriate. It's certainly going to be tested in the court system."
Other states have moved ahead with alternatives. Tennessee permits use of the electric chair, Utah allows the firing squad, and Oklahoma allows nitrogen gas.
Dr. Jonathan Groner, a professor of clinical surgery at Ohio State University College of Medicine, said using nitrogen gas could be "dangerous and impractical."
"You and I are breathing 78 percent nitrogen right now," he said. "It's not a poison. It's an inert gas." When nitrogen is introduced, oxygen is pushed out of the bloodstream, causing potentially painful suffocation, Groner said. "I would challenge that it's foolproof. We've heard that before," he said.
NAAUSA sends letter to House members explaining its opposition of federal statutory sentencing reforms
As detailed via some prior posts linked below, the National Association of Assistant US Attorneys (NAAUSA) has been one of the most consistent and vocal opponents of federal statutory sentencing reforms that have been considered in Congress in recent years. And this group has now just posted here via its website a lengthy letter authored by Steven Cook, NAAUSA's President, addressed to members of the US House of Representatives. Here is how the letter begins, its major headings, and its concluding paragraph:
As the voice of career federal prosecutors across the country, we write to make clear our strong and unequivocal opposition to the Sentencing Reform Act of 2015, H.R. 3713. This legislation, and other bills being advanced under the euphemistic label of criminal justice and prison or sentencing “reform,” will seriously undermine our ability to disrupt and dismantle violent gangs, domestic and international drug trafficking organizations, weaken federal firearm laws, and release thousands of violent convicted felons from federal prison. To explain our concern, we would like to make three points.
1. The federal criminal justice system is not broken. ...
2. Over the last decade the federal criminal justice system has been weakened or “reformed” in significant ways, discounting the need for any further reform. ...
3. The historic reduction in violent crime rates has begun to reverse course and in many cities across the country violent crime is skyrocketing. At the same time, we are suffering from the worst opioid epidemic in the history of our Nation. Now is the wrong time to remove or further weaken the very tools that federal prosecutors and law enforcement officers need to stem the tide of rising crime and prosecute domestic and international drug traffickers, violent gangs, and other violent offenders. ...
In conclusion, the federal criminal justice system has been significantly weakened over the last decade, the federal prison population continues to drop, homicide and violent crime rates are spiraling up across the country, and we are in the grip of the worst heroin and opioid epidemic in the history of our Nation. Now is the wrong time to remove or weaken the last tools available to federal prosecutors and law enforcement agents to combat these problems.
Some prior related posts highlighting some NAAUSA advocacy:
- "Law Enforcement Lobby Quietly Tries To Kill Sentencing Reform"
- Federal prosecutors group propounds "The Dangerous Myths of Drug Sentencing 'Reform'"
- Sentencing reform group propounds "The Dangerous Myths of NAAUSA"
- "Prosecutors Rally Against Sentencing Reform, Say Build More Prisons"
- NAAUSA sends letter opposing federal sentencing reforms on behalf of forty former federal officials
Saturday, September 10, 2016
Great coverage of awful public defender realities, especially in Louisiana
The Guardian together with the Marshall Project hace done this past week a remarkable series on the remarkable shortage of public defenders in Louisiana. The series is all linked here via The Guardian, under the title "Justice Denied," and with videos and this brief general description: "A three-part series in partnership with the Marshall Project that examines the crisis of America's overburdened public defense systems, including a special report from Louisiana, where years of cuts and inconsistent funding have hit hardest." Here are the full headlines and links to the three parts of the series:
"The human toll of America's public defender crisis Years of drastic budget cuts have created bottomless caseloads for public defenders – the ‘pack mules of the system’ – and tipped the scales of justice against the poor"
"Louisiana public defenders: a lawyer with a pulse will do: In several parishes, real estate and adoption attorneys – and even prosecutors – are filling the gaps left by an unreliable public defense funding program"
Here are snippets from the first of these articles highlighting why we ought not expect improvements to public defender systems anytime soon:
In recent years the US has begun to reckon with its role as the world’s biggest jailer, home to a manifestly unequal justice system that disproportionately punishes poor people of color. In diagnosing the causes of this problem much of the focus has centered on sentencing reform, but in a country where 95% of criminal cases are settled by plea deal, little attention has been given to the critical state of indigent defense. Around the US, defenders routinely report an increase in overburdening and underfunding, caused by a variety of structural, political and economic drivers.
Up-to-date figures are scant, but according to a 2008 estimate by the American Bar Association, state and county governments spent a total of $5.3bn on indigent defense systems a year, just 2.5% of the roughly $200bn spent on criminal justice by states and local government every year. The depth of crisis varies in each state, indicative of the complex patchwork of defense systems that are funded and administered differently dependent on jurisdiction....
Despite the urgency of the crisis, recognized by both the US attorney general, Loretta Lynch, and her predecessor, Eric Holder, the issue remains intractable. Congressional bills offering defender’s offices easier access to federal grant money have gone nowhere.
And in an election year during which Hillary Clinton has explicitly promised to “reform our criminal justice system from end to end”, dealing with the crisis in funding defense of the poorest people coming before the courts does not feature on her platform for change. Donald Trump, who has promised to be “the law and order candidate”, has a vision for reform that goes no further than a vow to appoint “the best prosecutors and law enforcement officials in the country”.
"Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System"
The title of this post is the title of this timely new paper by Mark Osler now available via SSRN. Here is the abstract:
The constitutional pardon power has generated more controversy than mercy over the past three decades. Even President Obama, who has pursued a focused clemency initiative, has struggled to meet historical standards. While changing ideas relating to retribution play a role in this decline, there is another significant factor at play: too much bureaucracy.
Beginning around 1980, a review process has evolved that is redundant and biased towards negative decisions. No fewer than seven levels of review take place as cases course through four different federal buildings, a jagged path that dooms the process. For years, this bureaucracy stymied even President Obama’s intention to reduce prison populations; the relative success of his clemency initiative came despite this bureaucracy, not because of it, and only after seven and a half years of futility.
This article analyzes the development of this system and the problems it creates before offering solutions based on the experience of state governments and President Ford’s successful use of a Presidential Clemency Board.
Friday, September 09, 2016
DOJ, wisely in my view, decides to drop prosecution against former Virginia gov Bob McDonnell and his wife
As reported in this Reuters article, "U.S. prosecutors on Thursday dropped corruption charges against former Virginia Governor Robert McDonnell and his wife, bringing to a close a case that tarnished the once-rising star of the Republican Party." Here are more details and context:
"After carefully considering the Supreme Court’s recent decision and the principles of federal prosecution, we have made the decision not to pursue the case further," the U.S. Justice Department said in a statement. In June, the U.S. Supreme Court threw out McDonnell's bribery convictions in a ruling that could make it tougher to prosecute politicians for corruption.
The eight justices, liberals and conservatives alike, overturned McDonnell's 2014 conviction, saying that his conduct fell short of an "official act" in exchange for a bribe as required for conviction under federal bribery law. Jurors had convicted McDonnell for accepting $177,000 in luxury gifts and sweetheart loans to him and his wife Maureen McDonnell from a wealthy Richmond businessman seeking to promote a dietary supplement. He was sentenced to two years in prison but remained free pending appeal.
The case was a rare instance of the nation's highest court reviewing a high-level public official's criminal conviction. The court sent the case back to lower courts to determine if there was sufficient evidence for a jury to convict McDonnell, which had kept alive the possibility of a new trial.
His lawyers applauded the decision, saying in a statement on Thursday: "Governor McDonnell can finally move on from the nightmare of the last three years and begin rebuilding his life." McDonnell served as governor from 2010 to 2014 and once was considered a possible U.S. vice presidential candidate.
His wife was convicted in a separate trial and given a one-year sentence but remained free while pursuing a separate appeal. The Supreme Court ruling effectively applied to Maureen McDonnell too, meaning that her conviction also had to be tossed out....
Legal observers have noted that the Supreme Court ruling opens the possibility that politicians could sell meetings and other forms of access without violating federal law. The decision was criticized by Citizens for Responsibility and Ethics in Washington, a corruption watchdog group. It said in a statement the Justice Department had "sent a clear signal that it would not aggressively enforce corruption laws to hold public officials accountable when they abuse their office.”
As I suggested in this prior post, I am generally pleased that the Justice Department has decided that there is now no real public benefit in continuing to use taxpayer moneys to seek to further condemn and harm former Gov McDonnell and his wife for their various suspect actions.
A few of many prior related post:
- Former Virginia Gov McDonnell (and wife) now facing high-profile federal sentencing after jury convictions on multiple charges
- Former Virginia Gov McDonnell gets (way-below-guideline) sentence of two years in prison
- Per the Chief, SCOTUS unanimously vacates former Gov's conviction while adopting "more bounded interpretation" of corruption statute
- You be DOJ: after SCOTUS reversal, should former Virginia Gov Bob McDonnell be tried for corruption again?
Thursday, September 08, 2016
Top Texas criminal judges wonders about value of LWOP sentencing and its lesser process
This local article from Texas reports on interesting comments by a top state judge in the state about LWOP sentences. Here are excerpts from the article:
Judge Larry Meyers, the longest-serving member of the state’s highest criminal court, has grown uncomfortable with the way Texas allows for life in prison without parole, calling it a slow-motion death sentence without the same legal protections given to defendants who face the death penalty. It can be argued, Meyers said, that the prospect of decades of prison — ended only by death from old age, medical problems or even violence — is as harsh or harsher than execution.
Even so, life without parole can be given in some capital murder cases without jurors answering two questions that must be considered before issuing a death sentence — is the defendant a future danger to society, and are there any mitigating factors such as mental disability or childhood abuse that weigh against capital punishment?
“I’m not saying the death penalty is unconstitutional. I think right now it’s about as fair as it could be,” Meyers said. “But there are two variations of the death penalty; one is just longer than the other. People are getting a (life without parole) death sentence without the same safeguards and procedures that you get when there is a death sentence.”
Larry Meyers has been a judge on the Texas Court of Criminal Appeals since 1993. Meyers, the only Democrat on the Texas Court of Criminal Appeals, plans to make changing the life-without-parole system an issue of his re-election campaign, an admittedly uphill battle after he switched from the Republican Party in 2013 over disagreements in its direction under the surging tea party movement.
His Republican opponent in the Nov. 8 election, 22-year state District Judge Mary Lou Keel of Houston, believes Meyers has strayed from his principal task as a judge. “Policy issues like this are best left to the Legislature,” Keel said. “Doesn’t he have enough work to do as a judge?”...
Life without parole, an option for capital murder cases since 2005, has been credited with helping to sharply reduce the number of death row inmates by allowing prosecutors to reserve capital punishment for the worst cases, yet ensure that other convicted murderers are permanently removed from society.
Since life without parole became an option, the population of Texas’ death row has fallen to 244 inmates, down about 40 percent, as the pace of executions has outstripped the number of new death sentences. In contrast, 782 inmates were serving life without parole for capital murder as of July 31. An additional 54 inmates are serving life without parole after repeat convictions for sexually violent offenses, including crimes against children, since the Legislature allowed the punishment for the crime of continuous sexual abuse in 2007....
Seeking life without parole is by far the simpler option. Jurors are easier to seat — death penalty opponents aren’t allowed on juries if execution is an option — and there is no punishment phase trial. The appeals process also is less rigorous, with death row inmates granted two appeals before the state’s highest criminal court, while inmates serving life without parole go through the normal process. Meyers, a 23-year member of the Court of Criminal Appeals, believes life without parole has been made too simple, providing “an easy, inexpensive way of getting the death penalty.”
It would be fairer, he said, to let jurors consider some variation of the future danger question and to allow defense lawyers to present mitigating evidence. If jurors cannot agree that life without parole is appropriate, the defendant would get a life sentence and be eligible for parole after 40 years or some other suitable time, Meyers said.
The bigger reform — what Meyers called the “smarter fix” — would be for the Legislature to end capital punishment, making life without parole the ultimate punishment and including an option for parole. The political reality in Texas, by far the nation’s top death penalty state, makes that an extremely unlikely option for legislators, Meyers admits. “But right now, as I see it, there’s just two options — both for death,” he said....
Meyers said his change of heart on life without parole didn’t come about because of appeals. Nobody is going to tell his court that they improperly received a no-parole term when the alternative is a death sentence, he said. Instead, Meyers said, his qualms arose after coming to see the sentence as a delayed death penalty — one that is particularly harsh on young people — when a typical murder conviction is often enough to lock away killers until they are no longer a danger.
When the Legislature debated life without parole in the mid-2000s, prosecutors were divided on the best course to take, but many opposed adding a “long, drawn-out” sentencing hearing to determine the difference between a no-parole sentence and parole eligibility after 40 years, said Shannon Edmonds, staff attorney with the Texas District and County Attorneys Association. “You could argue that it’s not much difference. It was a lot of squeeze without much juice,” Edmonds said.
In addition, many capital murder cases are decided by a plea bargain that allows defendants to choose perpetual prison time over execution. Some prosecutors feared losing bargaining leverage to a defense lawyer who threatened, for example, to drag out a sentencing hearing for three weeks unless offered a sentence with parole for a lesser crime like murder, Edmonds said.
Life without parole raises questions about whether Texas is imprisoning people long past the point that they “will ever be dangerous,” said Kathryn Kase, executive director of Texas Defender Service, a nonprofit that provides capital murder legal representation at trial and on appeal. “We’ve got places in prisons that look like nursing homes. It makes me wonder, as a taxpayer, are these people dangerous? Why are we paying the extra cost of imprisoning them when they are geriatrics?” Kase said.
September 8, 2016 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)
Wednesday, September 07, 2016
Feds file motion seeking to limit how jury might consider mercy in capital trial of Charleston mass murderer Dylann Roof
This new BuzzFeed News article, headlined "Prosecutors Want To Limit Dylann Roof’s Use Of A “Mercy” Defense," provides an effective summary of this interesting motion filed by prosecutors in a high profile federal capital case. Here are the basic details:
Federal prosecutors trying the death penalty case against alleged Charleston church shooter Dylann Roof want to limit the use of “mercy” when he goes on trial later this year. In a new court filing, prosecutors argue that should Roof be convicted, the jury should determine his sentence based on a weighing of the factors for and against — known as aggravating and mitigating factors — the death penalty. Roof is accused of fatally shooting nine people inside the historically black Emanuel AME Church on July 17, 2015.
The prosecutors argue that allowing the defendant to instruct the jury that, regardless of their findings, they are never required to sentence someone to death isn’t consistent with the Federal Death Penalty Act. In arguing against a mercy defense, prosecutors point out that during the sentencing phase of the trial, if it gets to that, the government’s burden is much higher — they must convince the jury to unanimously find that the aggravating factors outweigh the mitigating factors. The defendant’s burden is “significantly lower” — he needs to convince one juror that there is enough mitigating evidence to merit a sentence less than death, such as life in prison without parole.
In the filing, the prosecution did say that mercy may enter into equation when the jury debates aggravating versus mitigating factors. “It is within that context, and that context alone, that mercy may enter into the death penalty process,” the prosecution writes....
Earlier this month, the court revealed that 3,000 people were sent jury summonses notifying them that they are being considered to serve on the jury at Roof’s trial.
This week, a South Carolina circuit court judge set the date for Roof’s state trial, which is expected to be tried after the conclusion of the federal trial. That case, where Roof is also facing the death penalty, is scheduled to begin in late January 2017.
The title of this post is the title of this notable new paper by Eric Fish now available via SSRN. Here is the abstract:
American prosecutors are conventionally understood as having two different roles. They must seek the defendant’s conviction as adversary advocates, and they must also ensure the system’s fairness as ministers of justice. But these two roles are at odds. Legal scholarship and the organized bar try to elide this conflict by describing prosecutors as having a “dual role,” meaning that they must perform both functions. But the resulting role confusion allows adversarial ethics to dominate in practice, leading to excessive punitiveness and wrongful convictions.
This Article argues that the “dual role” model should be scrapped, and that American prosecutors should not be understood as adversary lawyers at all. Certain features of the American system — prosecutorial discretion, the limited role of victims, and the resolution of nearly all cases through plea bargain agreements — make it inappropriate, indeed dangerous, for American prosecutors to behave like partisan lawyers.
In seeking to move beyond the “dual role” model, this Article distinguishes three possible roles for prosecutors. The first is adversarialism, in which a prosecutor exercises their discretion strategically in order to win convictions and punishments. The second is legal neutrality, in which a prosecutor behaves like a disinterested adjudicator whose decisions are dictated by established rules. The third is value weighing, in which a prosecutor exercises their discretion by choosing among a limited set of public values that are implicit in our legal institutions.
The Article ultimately argues that the American prosecutor’s role should be understood as combining the logics of legal neutrality and value weighing. When there is a binding rule and the prosecutor lacks discretion, they should act as a neutral conduit for the established legal principles. And when the prosecutor faces a discretionary choice, they should act as an executive official committed to implementing a certain normative vision of justice. But the prosecutor should never act as an adversary committed to winning for its own sake. The Article also considers how the institutional structure of prosecutors’ offices, and the professional incentives that prosecutors face, might be reformed in order to accommodate such a non-adversarial role.
Rounding up some recent commentary on recent Brock Turner controversies
Folks who following notable sentencing stories, and the notable reactions from various folks to notable sentencing stories, surely know the name Brock Turner. And recent developments in his sentencing saga have prompted another round of useful commentary from various sources. Here is a sample of this commentary, via links and full headlined:
From Mic here, "Brock Turner just registered as a sex offender. Here's what that means for him."
From The National Review here, "California Democrats Suddenly Think Mandatory Minimums Are a Good Idea"
From Slate here, "The Armed Protests Outside Brock Turner’s Home Are Dangerously Counterproductive"
From Vox here, "The justice system needs to take rape more seriously. That doesn’t mean longer prison sentences."
Some (of many) prior related posts on the Brock Turner case:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
- California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
Tuesday, September 06, 2016
You be DOJ: after SCOTUS reversal, should former Virginia Gov Bob McDonnell be tried for corruption again?
The "you-be-the-judge"-type question in the post is prompted by this Washington Post article headlined "U.S. attorney’s office recommends putting Robert McDonnell on trial again." Here is the basic context:
Less than three months after the Supreme Court vacated the convictions of former Virginia governor Robert F. McDonnell, the U.S. attorney’s office that prosecuted the Republican has recommended to Justice Department higher-ups that they endeavor to try him again, according to people familiar with the case.
The recommendation from the U.S. attorney’s office in the Eastern District of Virginia does not guarantee that McDonnell will once again have to battle corruption charges in court. The decision ultimately rests with senior officials at the Justice Department, including the deputy attorney general and possibly the attorney general. But it is a significant step that demonstrates how despite a Supreme Court ruling upending McDonnell’s convictions and significantly narrowing what can be considered public corruption, the prosecutors who convinced jurors that he was guilty the first time believe they could do it once more.
An attorney for McDonnell, a Justice Department spokeswoman and a spokesman for the U.S. attorney’s office all declined to comment. Asked in an interview earlier this week whether she would accept the recommendation of prosecutors who handled the case — whatever that might be — Attorney General Loretta E. Lynch said, “That’s working its way through the process, so I’m not able to give you a comment on that.”
Prosecutors have until Sept. 19 to formally inform the U.S. Court of Appeals for the 4th Circuit what they intend to do and — if they are going forward — to set a briefing schedule.
McDonnell and his wife, Maureen, were convicted in 2014 of public corruption charges after jurors concluded that they lent the power of the governor’s office to Richmond business executive Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury goods. Prosecutors alleged that the McDonnells helped Williams specifically by arranging meetings for him with other state officials and allowing him to host an event at the governor’s mansion to promote a product he was trying to sell. In one case, prosecutors alleged, the governor pulled out a bottle of that supplement, Anatabloc, and told other state officials that it worked for him....
Justice Department officials are probably weighing not only whether a case could be brought again but also whether it should. McDonnell’s first trial spanned five weeks, and it came after months of bitter and time-consuming pretrial litigation. Four prosecutors in the Eastern District of Virginia and the Justice Department’s public integrity section were consumed by it. McDonnell was ultimately sentenced to two years in prison; his wife to a year and a day.
And from the case came a unanimous Supreme Court ruling that experts say makes prosecuting politicians on corruption charges substantially more difficult than it was before. It is possible more successful challenges could lead to a further narrowing of corruption laws and hamper other investigations. The Supreme Court’s ruling dealt a critical blow to the case against McDonnell but not an immediately fatal one. The court decided that jurors were wrongly instructed on the meaning of the term “official act” — the thing that prosecutors were required to prove McDonnell did or tried to do for Williams in exchange for the businessman’s favors — and offered a definition far more narrow than what jurors had considered....
McDonnell’s defense attorneys had wanted the case to be thrown out wholesale on the grounds that prosecutors had presented insufficient evidence of an official act. But the Supreme Court declined to do that, saying both sides had not had an opportunity to address the question in light of the court’s clarified definition.
And the opinion offered a possible way forward. While setting up meetings or calling other government officials could not be official acts by themselves, Roberts wrote, they could serve as evidence of an agreement to perform such an act — if, for example, jurors concluded the meeting helped show an official was attempting to pressure or advise another official to do something more....
If the Justice Department allows prosecutors to go forward, they will first have to convince the U.S. Court of Appeals for the 4th Circuit that there is enough evidence to proceed — which is no guarantee. That decision itself could be appealed to the Supreme Court. And if they ultimately go to another trial, prosecutors would have to recalibrate how they present their case, focusing less on the meetings and events themselves than on how they show that Williams and McDonnell had broader plans. That will not be easy. Roberts noted in the opinion that several McDonnell subordinates had testified at trial that the governor “asked them to attend a meeting, not that he expected them to do anything other than that.”
For a variety of reasons, I am inclined to conclude that the former Gov has, at least in some sense, already been punished enough. And, I am especially inclined to say I am not so keen on having the feds spend a lot more of my tax dollars going hard again after someone who poses no threat to public safety. But perhaps others view public corruption concerns differently, and thus the sincere question in the title of this post.
"What Lurks Below Beckles"
The title of this post is the title of this timely new paper available via SSRN authored by Leah Litman and Shakeer Rahman. Here is the abstract:
The Supreme Court will soon decide if Travis Beckles’s prison sentence is illegal. Mr. Beckles was sentenced years ago, and his appeal to the Supreme Court is on post-conviction review. Normally when the Supreme Court invalidates a prison sentence in a post-conviction case, the Court’s holding applies to all other post-conviction cases as well. But the way Mr. Beckles’s lawyers are arguing his case, relief for Mr. Beckles will mean nothing for prisoners in certain circuits whose sentences would be illegal for the same reason as Mr. Beckles’s. This is due to a number of a circuit splits that the Supreme Court may not get an opportunity to address after the Beckles case.
The Court should both be aware of these lurking issues and use Beckles as the vehicle to weigh in on them. Doing so may be the only way to ensure that prisoners — particularly those in the Eleventh Circuit — will have a remedy for their unlawful sentences and to ensure that any right announced in Beckles applies uniformly across the country.
While the Court typically limits itself to analyzing questions that are directly raised in the petition for certiorari, AEDPA is a reason the Court should depart from that practice here. Two decades ago, when the Supreme Court upheld AEDPA’s restrictions post-conviction review, several Justices warned that circuit splits related to successive motions might re-open the question of whether AEDPA’s restrictions are constitutional. As we show below, the aftermath of Johnson and Welch in the lower courts is what those Justices warned about. These constitutional concerns are a reason for the Court to depart from its usual reluctance to analyze questions that are not directly raised in a petition for certiorari and frame the analysis in Beckles in a way that avoids a repeat of the mess that ensued after Johnson and Welch.
Sunday, September 04, 2016
SCOTUSblog examining "The Court after Scalia"
As introduced in this post, the fine folks at SCOTUSblog are doing an online symposium looking at "The Court after Scalia." Here is part of how Amy Howe introduces the pieces that follow:
With Senate Republicans still refusing to act on President Barack Obama’s nomination of Chief Judge Merrick Garland to succeed Scalia, it has become even more clear that the question of who will fill the vacancy hinges on the 2016 presidential election. If Hillary Clinton is elected, the conventional wisdom goes, either Garland or someone else nominated by Clinton will replace Scalia, and the Court will generally move to the left. But if instead Donald Trump is elected and nominates a candidate to succeed Scalia, the conventional wisdom posits, the balance on the Court will stay more or less the same.
The conventional wisdom may well be true for the Court as a whole. But what does it mean for some of the high-profile issues — affirmative action, gun control, reproductive rights, and the death penalty, to name just a few — on which the Court has ruled or may rule in the years to come? We are delighted to kick off today a symposium that seeks to answer that question. Over the next few weeks, guest authors will explore the impact that a conservative or liberal nominee might have on some of these areas of the law.
And here are a few of the symposium posts on criminal law and other topics certainly worth checking out: