Wednesday, January 25, 2017

Is Prez Trump really ordering the Justice Department to conduct major voter fraud investigation?

Though it appears that Jeff Sessions will not be confirmed to serve as our next Attorney General until next week, his boss this morning was tweeting a new crime-fighting agenda for the Justice Department.  This U.S. News & World Report article, headlined "Trump Calls for Voter Fraud Investigation: The president has previously declared that 3 to 5 million voted illegally in 2016," explains:

President Donald Trump called for a "major investigation" into voter fraud Wednesday. "I will be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and… even, those registered to vote who are dead (and many for a long time). Depending on results, we will strengthen up voting procedures!" the president tweeted from his personal account.

The call is a follow-up on comments from Trump and the White House. Trump said "millions" voted illegally in November, prompting him to lose the popular vote to Hillary Clinton. And shortly after being sworn in as president, Trump repeated the claim to lawmakers at a White House reception, the Washington Post reported Tuesday.

When asked if the administration would call for an investigation on the matter at Tuesday's briefing in Washington, White House press secretary Sean Spicer said that it was a possibility. "Maybe we will," Spicer said.

He noted the president has continuously stated his concern on the issue before and "continues to maintain that belief" that voter fraud is a major problem, "based on studies and evidence people have brought to him." Spicer specifically cited a study "that came out of Pew in 2008 that showed 14 percent of people who voted were noncitizens."

Politico slammed the veracity of that study and claim, and several outlets, including CNN and the Associated Press, assert that the president and his team have provided essentially no evidence for these claims....

The White House is not fully going it alone, however. Mitch McConnell, the Senate Republican leader, gave at least tacit backing to Trump on the issue Tuesday. "It does occur," McConnell told reporters. "The notion that election fraud is a fiction is not true… There are always arguments on both sides about how much, how frequent and all the rest."

But House Speaker Paul Ryan said he had seen "no evidence to that effect" and he's made his position on the matter "very, very clear."

Based on the reports and evidence I have seen marshaled by folks on both sides of the political aisle, the claim that millions (rather than perhaps just hundreds) voted illegally in the 2016 election is seemingly badly detached from reality.  And it is useful to recall that we went down this road to some extent 16 years ago the last time a Republican took control of the Executive Branch.  This lengthy New York Times article from 2007, headlined "In 5-Year Effort, Scant Evidence of Voter Fraud," review the last version of this story and it starts this way:

Five years after the Bush administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews. Although Republican activists have repeatedly said fraud is so widespread that it has corrupted the political process and, possibly, cost the party election victories, about 120 people have been charged and 86 convicted as of last year.

January 25, 2017 in Criminal justice in the Trump Administration, Offense Characteristics, Who Sentences? | Permalink | Comments (16)

Tuesday, January 24, 2017

Split Colorado Supreme Court concludes federal law precludes state officers from returning marijuana to acquitted defendants

The Colorado Supreme Court yesterday issued an interesting ruling driven by the conflict between the state's marijuana reforms and federal prohibition. (SCOTUS fans might note the majority opinion was authored by Justice Allison Eid, who is on Prez Trump's (not-so-)short list.) Here are parts of how the majority opinion in Colorado v. Crouse, No. 2017 CO 5 (Colo. Jan 23, 2017) (available here), gets started:

The state’s medical marijuana amendment, article XVIII, section 14(2)(e) of the Colorado Constitution, requires law enforcement officers to return medical marijuana seized from an individual later acquitted of a state drug charge. The federal Controlled Substances Act (“CSA”) prohibits the distribution of marijuana, with limited exceptions. 21 U.S.C. §§ 801–971 (2012). The question in this case is whether the return provision of section 14(2)(e) is preempted by the federal CSA....

The CSA does not preempt state law on the same subject matter “unless there is a positive conflict between [a] provision of [the CSA] and that State law so that the two cannot consistently stand together.” 21 U.S.C. § 903 (2012). The return provision requires law enforcement officers to return, or distribute, marijuana. Distribution of marijuana, however, remains unlawful under federal law. Thus, compliance with the return provision necessarily requires law enforcement officers to violate federal law. This constitutes a “positive conflict” between the return provision and the CSA’s distribution prohibition such that “the two cannot consistently stand together.”

Moreover, the exemption relied upon by the court of appeals does not resolve this conflict. Section 885(d) of the CSA immunizes only those officers who are “lawfully engaged in the enforcement of any law . . . relating to controlled substances.” 21 U.S.C. § 885(d) (2012) (emphasis added). This court has held that an act is “lawful” only if it complies with both state and federal law. Coats v. Dish Network, LLC, 2015 CO 44, ¶ 4, 350 P.3d 849, 851. The officers here could not be “lawfully engaged” in law enforcement activities given that their conduct would violate federal law.

Here is part of the start of the dissent authored by Justice Gabriel:

Because I believe that the plain language of § 885(d) of the CSA, 21 U.S.C. § 885(d), immunizes federal and state officers from civil and criminal liability in the circumstances at issue here, I perceive no conflict between the CSA and section 14(2)(e) of article XVIII of the Colorado Constitution, nor do I believe that it is impossible to comply with both the CSA and the Colorado Constitution, as the majority implicitly and the People expressly contend.

Though not in any way related to this ruling, I cannot help but take this not-quite-perfect opportunity to share titles and links to some coverage of marijuana reform issues from my other major blog, Marijuana Law, Policy and Reform:

January 24, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (5)

Two Governors dealing with prison overcrowding problems in distinct ways

I covered some midwest prison stories here yesterday, and today brings these interesting state prison reform stories from the south and west:

From Alabama here, "Gov. Robert Bentley says new prisons top priority this year"

As of September, Alabama had about 23,000 prisoners in facilities designed for about 13,000, an occupancy rate of about 175 percent. Overcrowding is not a new problem but makes it harder to deal with other pressing concerns.

In October, the U.S. Justice Department announced it was investigating the state's prisons. U.S. District Judge Myron Thompson is conducting a trial on claims that mental health care for inmates fails to meet constitutional standards. A trial on similar claims about medical care is expected later this year.

Department of Corrections Commissioner Jeff Dunn told lawmakers in November that prison violence was rising and the number of corrections officers had dropped by 20 percent in five years. Bentley and Dunn say the plan to build four new prisons, called the Alabama Prison Transformation Initiative, would be the most cost effective way to alleviate the overcrowding, under-staffing and other problems.

From Nevada here, "Sandoval wants to streamline parole process to fight prison overcrowding"

Nevada Gov. Brian Sandoval is pursuing creative solutions to a potential prison overcrowding challenge that could see capacity exceeded by 700 inmates by the end of the next budget without prompt action. “Our goal is to not construct a new prison,” Mike Willden, chief of staff to Sandoval, said in a budget briefing last week.

Prison construction is not cheap, and it has to be paid with state general funds. In 2007, the Legislature approved $300 million for prison construction projects. Sandoval’s solution rests primarily with the Division of Parole and Probation and the Parole Commission, which will be given new resources to speed up parole for as many as 300 to 400 eligible inmates....

At the Prison Board meeting, it was reported that one-third of paroled inmates being returned to prison were there for parole violations only. Crowding is a problem within the prison system.

Corrections Director James Dzurenda said at the meeting that 13,742 inmates were housed in the system — well over capacity if only regular housing beds were used. But the department has converted large areas of prisons, created for other purposes, into dormitory-style beds.

In addition to seeking to expedite paroles, the Department of Corrections has a capital construction project worth about $6 million to add 200 beds at the Southern Desert Correctional Center. A third element of the plan, if needed, sets aside about $12 million to temporarily house some Nevada inmates out-of-state while the parole efforts get up to speed, Willden said.

State lawmakers will get a first look at the corrections and parole budget proposals at a hearing Jan. 31, a week ahead of the start of the 2017 session on Feb. 6. Sandoval said in his budget that his goal is to reduce prison inmate recidivism by 10 percent through education programs and intervention services and resources, particularly in the areas of behavioral health, drug addiction and workforce training.

January 24, 2017 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

"Judge Gorsuch & Johnson Resentencing"

The title of this post is the title of this timely new commentary now on SSRN authored by Leah Litman about the latest "hot name" to replace Justice Scalia on the Supreme Court.  Here is the first paragraph:

Jan Crawford has reported that President Donald Trump is strongly considering appointing Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit to the U.S. Supreme Court. I do not know Judge Gorsuch, but I do know his opinion in Prost v. Anderson, which is a rather wonky case on a somewhat technical area of federal habeas law. Prost provides an interesting insight into Judge Gorsuch’s jurisprudence.  The case concerns an issue on which the court of appeals disagree, and so it provides a nice glimpse into how Judge Gorsuch might address matters that are reasonably susceptible to different resolution, as many of the Supreme Court’s cases are.  Prost illustrates how Judge Gorsuch will balance competing considerations of fairness and administrability in criminal law.  While there is much to like about Prost — it is well written, clearly reasoned, and adopts an administrable rule — the opinion also raises some concerns. The opinion overvalues proceduralism relative to substantive rights in a way that will have the effect of eroding litigants’ access to courts.

January 24, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Monday, January 23, 2017

Rounding up some diverse prison stories from the industrial midwest

A handful of new stories about prisons emerging from a handful of industrial midwest states recently caught my eye and prompts this round-up:

The last of these listed stories seems like the biggest news, especially for those hoping state will be able to lead the way on reducing modern mass incarceration.

January 23, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

SCOTUS denies cert on handful of Alabama cases raising Hurst and other issues

This most recent Relist Watch posting by John Elwood at SCOTUSblog noted that the Supreme Court had relisted a few times a few cases from Alabama raising various challenges to how that state rolls its tide toward death sentences.  But this new Supreme Court order list, released this morning, has all of the relisted Alabama capital cases now on a certiorari denied list.

Interestingly, it appears that a few method-of-execution cases that were previously relisted are not on the latest cert denied list.  My guess would be that this is because someone is working on a dissent from denial of cert, but you never know just what SCOTUS is up to.

January 23, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, January 22, 2017

Making the case again against mandatory minimums

Mark Holden has this new op-ed, given the headline "Mandatory minimums are a crime in themselves," which discusses the well-known case of Weldon Angelos and then articulates the effective arguments against mandatory minimum sentencing statutes generally. Here are excerpts:

America's criminal justice system is broken. Too many of our fellow citizens are rotting behind bars, unable to atone for their mistakes, contribute to their communities and lead lives of meaning and fulfillment. It's not just a crisis — it's a crime in and of itself.

If you don't believe us, just go to the Sundance Film Festival this weekend. There you'll see a trailer for a new documentary about Weldon Angelos and his firsthand experience with the criminal justice system.  As a lawyer with Koch Industries, I learned about Weldon Angelos when he became the poster child for the unfair and unjust sentences that are all too common, especially for low-level and nonviolent offenders....

Even though he was a first-time, nonviolent offender [convicted of multiple marijuana distribution and gun possession charges], Weldon Angelos received a staggering 55-year prison sentence with a release date of October 2051. He would have received a shorter sentence for being a murderer or terrorist....

Weldon's story, thankfully, has a happy ending. Last May, after 12 years in prison, a federal court granted him an immediate reduction to his sentence. In a show of true compassion, the federal prosecutor who prosecuted him in the first place initiated this effort. Weldon has since returned to his family and his life — a life that only months ago seemed would be spent behind bars.

Yet the laws behind such grossly unjust punishments are still on the federal books. So are many other mandatory sentencing laws. Rolling them back — or repealing them outright — is one of the most important reforms before Congress.

This is especially important for federal drug offenders, over 260,000 of whom have been sentenced under mandatory minimums. Distressingly, 86 percent of current drug offenders in federal prison committed nonviolent crimes, and the same number were low-level offenders.

The case against mandatory minimum sentencing laws is simple. While initially created with good intentions, they typically do far more harm than good. Mandatory minimums empower prosecutors to a dangerous degree. They alone have the power to bring charges against offenders — if they bring ones associated with high mandatory minimums, the judge has little choice but to accept it, even if other charges might be more appropriate. Nowhere else in America's criminal justice system are judges and juries so powerless.

And while they are supposed to lower crime rates, studies have shown that mandatory minimums have had only a minor effect at best. Hardened criminals — the real bad guys — are still usually able to get favorable deals, while low-level ones get stuck with the harshest possible sentences. Last but not least, mandatory minimums create perverse incentives for the police themselves. If authorities truly felt Weldon was a threat to public safety, they would have arrested him the first time he sold marijuana to the informant. Instead, law enforcement allowed him to sell drugs two more times to enhance the sentence. This is fundamentally unjust.

The evidence points to the inescapable conclusion that mandatory minimums must be reformed, and fast. Congress has an opportunity to make law enforcement jobs less dangerous, enhance public safety for all, bring communities together, and help countless people improve their lives — people like Weldon Angelos. It's time to restore justice to America's criminal justice system.

January 22, 2017 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (14)

Saturday, January 21, 2017

"Mass Incarceration: Where Do We Go From Here?"

The title of this post is the title of this notable new report produced by the New York City Bar Association’s Task Force on Mass Incarceration. Here is how its introduction gets started:

The devastating consequences of mass incarceration have drawn unprecedented attention over the past few years. Journalists, academics and public interest groups have published extensive research, written compelling articles and lobbied politicians on both sides of the aisle to take concrete steps to reduce both our nation’s prison population and the terrible toll mass incarceration continues to inflict on vulnerable communities.  As we show in this Report, progress has been made in the year since our Task Force was established, but much remains to be done.  There also is considerable uncertainty about whether successful past initiatives will be carried forward by the Trump administration.

This Report therefore aims, in section II below, to chronicle past successes (as well as frustrations) at both the federal and state/local levels in reducing the country’s prison population and the harmful consequences and burdens of mass incarceration.  Then, in section III below, we look ahead to areas for potential further action, again at the federal and the state/local levels. We close with a plea to public officials to use the information and initiatives highlighted here to recognize the enormous economic and social costs of over-incarceration, to emulate the promising examples of progress and reform recounted here, and to be creative in seeking to reduce the public cost and burden of our overreliance upon incarceration while still maintaining public order and safety in all communities.

January 21, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Friday, January 20, 2017

"Dear President Trump: Here’s How to get Right on Crime, Part 3"

As noted in this prior post, the Marshall Project this week has a timely three-part series in which leading conservatives working on and advocating for criminal justice reform are setting out the conservative case for reforms. The first commentary was authored by Pat Nolan and carried the subheadline "Focus on intent, tailor the punishment to the crime, prepare prisoners for life after incarceration."  The second commentary was authored by Vikrant Reddy and carried the subheadline "End overcriminalization, reward success, pay attention to the heroin crisis."

The final part comes from the pen of Marc Levin and carries the subheadline "Listen to Pence, Carson, Priebus, Kushner — and look out your window." Here are excerpts:

The new president’s is known for his real estate acumen, but he doesn’t have a monopoly on exclusive properties. It turns out that the cheapest room at the Trump International hotel in New York City costs less than the $620 per night per youth cost for juvenile detention in the Big Apple. In addition to Donald Trump’s message of promoting efficiency in government, he also ran on expanding the workforce to reclaim America’s economic prowess. Yet, so many of those on the margins of our society cannot hold a job because they are incarcerated, have a criminal record, or are suffering from addiction. Indeed, there was a significant correlation between counties with a high numbers of opiate overdose deaths and counties voting for Trump.

While Trump and other nominees have made statements about being tough on crime, Trumpism is consistent with the “deal” that a smaller more effective criminal justice system represents for the American people: better public safety for lower costs while holding offenders accountable. There are also many hopeful signs that the new administration could be as active on the issue as it is on Twitter. Vice President-elect Mike Pence who championed rehabilitation initiatives as governor of Indiana and key figures such as Ben Carson and Reince Priebus have gone on the record in support of criminal justice reforms. Moreover, Jared Kushner, who faced the harrowing experience of seeing his father incarcerated, has supported organizations like the Aleph Institute that works to ensure Jewish prisoners can see a rabbi, and also advocates for sentencing reform.

Additionally, the Trump administration presents a major opportunity to break the criminal justice reform logjam in Congress....

In addition to a default mens rea provision and ensuring that intent be proved for every element of sentencing enhancements, other federal criminal justice reform priorities should include civil asset forfeiture reform, reining in mandatory minimums for nonviolent offenses, and earned time for most inmates who complete programs proven to reduce recidivism. Given that 90 percent of offenders are sentenced and incarcerated at the state and local level, the Department of Justice should continue providing technical assistance to states. This assistance has been instrumental in more than 30 states adopting justice reinvestment plans that lower both costs and crime through solutions such as drug and mental health treatment, problem-solving courts, and swift, certain, and commensurate sanctions to promote compliance with supervision. (Half of those admitted to prisons are there because they violated rules of probation and parole.) Indeed, from 2010 to 2015 in the 10 states with the largest imprisonment declines, the crime rate fell an average of 14.6 percent, compared with 8.4 percent in the 10 states with the biggest growth in imprisonment.

From his position in Trump Tower, the incoming president has had a birdseye view of the single most powerful urban example of simultaneously reducing crime and incarceration. New York City has cut its incarceration rate by 55 percent (combined local jail and state commitments) since 1996, while simultaneously reducing serious crime by a whopping 58 percent. New York City’s broken windows policing model combated an atmosphere of lawlessness by ensuring quality-of-life crimes like graffiti and jumping subway turnstiles were no longer ignored, but the interventions almost always involved alternatives to incarceration. Should not those who defile buildings be put to work cleaning up the mess rather than sit in jail? In the Big Apple, many neighborhoods where crime was once the most salient issue now have the rather preferable problem of increased housing costs. For a new president who has pledged to make America great again, it only makes sense to look at what has made New York City great again: the conservative principles that tell us to be smart, not just tough, on crime.

Prior related posts:

January 20, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (2)

Thursday, January 19, 2017

"Dear President Trump: Here’s How to get Right on Crime, Part 2"

As noted in this prior post, the Marshall Project this week has a timely three-part series in which leading conservatives working on and advocating for criminal justice reform are setting out the conservative case for reforms. The first commentary was authored by Pat Nolan and carried the subheadline "Focus on intent, tailor the punishment to the crime, prepare prisoners for life after incarceration."

The second in the series here is authored by Vikrant Reddy and carries the subheadline "End overcriminalization, reward success, pay attention to the heroin crisis." Here are excerpts:

Criminal justice reform advocates are pessimistic about the prospects for federal sentencing reform under the new presidential administration. Federal sentencing, however, is only one component of America’s vast criminal justice system. There are several other areas where the administration and reformers could find common cause.  Here are just three reforms widely supported by advocates which are also consistent with a “Trumpian” worldview.  They should be at the forefront of a serious federal reform agenda over the next four years.

Scaling Back Overcriminalization

There are now over 5,000 obscure federal crimes, such as shipping lobster in plastic rather than cardboard boxes, that are more appropriately treated as administrative or regulatory matters. Furthermore, the mens rea or “state of mind” portions of many criminal statutes (which specify whether the conduct must be purposeful, knowing, reckless, or negligent) are frequently left out when laws are drafted. Reversing this “overcriminalization” has long been a priority for conservatives. Yet it has also been a priority for prominent progressive voices, such as the National Association of Criminal Defense Lawyers and U.S. Representatives John Conyers and Bobby Scott....

Performance-Incentive Funding

One of the most widely-admired strategies for improving criminal justice outcomes is performance-incentive funding (PIF). The idea is simple: Governments should fund prisons (and community corrections programs, for that matter) based on outcomes achieved, not merely on the number of people incarcerated. A government that contracts for lower recidivism rates and increased restitution payments to victims is more likely to find that its prisons are encouraging education and job training behind bars. People from the business world who are more concerned with results than with ideologies — such as Donald Trump — are likely to understand this truth intuitively: You get what you pay for....

Combating Heroin Addiction

On Election Day, Trump performed unusually well in communities ravaged by heroin abuse. He seemed to understand that he owes it to these voters — his base — to take the issue seriously. His administration will likely pursue a law enforcement solution that attacks the “supply side” of the heroin problem, as Trump frequently promised on the campaign trail. There is also a “demand side” to the problem, however, and Trump must treat this side of the problem with equal urgency.  This means redirecting scarce resources from incarceration to less costly and more effective diversion programs that treat addiction.

Prior related post:

January 19, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

SCOTUS adds a qualified immunity case to its docket

Amy Howe at SCOTUSblog has this new post explaining why the Justices issued a couple cert orders today and detailing the particulars of the two cases taken up by the Court.  Here is part of that post that should interesting criminal justice fans:

With the Supreme Court closed tomorrow for the inauguration of President-elect Donald Trump, the justices met today, one day early, for their private conference.  One week after adding 16 new cases to their docket, today the justices granted review in two more — potentially filling out their merits docket for the term.

The first grant came in District of Columbia v. Wesby, a case that presents important questions regarding the assessment of probable cause by police officers and qualified immunity.  The case arose when police officers in Washington responded to a noise complaint about a vacant house, where they found scantily clad women and the smell of marijuana. No one seemed to know who owned the house or precisely what the occasion was, but some of the partygoers told police that they had been invited by someone named “Peaches” or “Tasty” — who was not at the party, but who admitted that she did not have the owner’s permission to use the house.

 The partygoers were arrested for trespassing, but no charges were ever brought against them. The partygoers then filed a lawsuit, in which they alleged that the police lacked probable cause to arrest them because they had told police officers that they had been invited to the house and therefore did not intend to trespass.

The federal trial court and the U.S. Court of Appeals for the District of Columbia Circuit agreed with the partygoers and further ruled that the police officers were not entitled to qualified immunity. The court of appeals denied the city’s motion for rehearing en banc; in dissent from that denial, Judge Brett Kavanaugh wrote (among other things) that this “should be a fairly easy case for qualified immunity.”

The court had relisted Wesby a whopping eight times. Multiple relists can often signal either that the justices are considering a summary reversal — that is, without briefing or oral argument on the merits — of the lower court’s decision or that a justice is writing a dissent from the denial of certiorari, but today the justices instead agreed to review the case on the merits.

January 19, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Prez Obama wraps up his clemency work with 330 more commutations on his final full day in office

As reported here via USA Today, "President Obama commuted the sentences of 330 more federal inmates Thursday, capping an unprecedented clemency effort that has now released 1,715 prisoners — more than any other president in history."  Here is more:

The clemency grants announced on Obama's last full day in office set a one-day record. "Proud to make this one of my final actions as President.  America is a nation of second chances, and 1,715 people deserved that shot," Obama tweeted Thursday.

The clemency initiative, which began in 2014, was targeted at drug dealers who received mandatory-minimum sentences during the War on Drugs from the 1980s to the 2000s. But the effort ultimately fell far short of the 10,000 clemency grants former attorney general Eric Holder predicted when the initiative began. And while Obama set a record for granting commutations, he also set a record for denials.  As of the end of 2016, he had denied 14,485 petitions and closed another 4,242 without action — an overall grant rate of 5.9%, a couple of percentage points higher than many of his predecessors.

"The president set out to reinvigorate clemency, and he has done just that," White House counsel Neil Eggleston said in a statement.

It's unclear how big of a backlog in clemency cases President-elect Donald Trump will inherit.  But Justice Department officials had promised to give an up-or-down determination on every clemency initiative case it received by August.  “I’m proud to say we kept that promise," Deputy Attorney General Sally Q. Yates said in a statement. "This undertaking was as enormous as it was unprecedented, and I am incredibly grateful to the teams of people who devoted their time and energy to the project since its inception."

Obama's final list of clemency grants included no more full pardons, meaning his final pardon tally will stand at 212 — fewer than any modern president except Presidents George H.W. Bush and George W. Bush. (It was the younger Bush who gave Obama this advice in the limo ride to the Capitol on his Inauguration Day eight years ago. "Announce a pardon policy early on, and stick to it.")

The grants on Thursday also did not include any of the more high-profile political cases, like former Illinois governor Rod Blagojevich, former Detroit mayor Kwame Kilpatrick, and former congressman Chaka Fattah, all serving time on corruption charges.

With Thursday's action, the Clemency Project 2014 also closes its doors.  The coalition of defense attorneys who had agreed to help inmates with their cases says it completed work on all the applications it received. "Of course we'd be delighted to continue, but we have to wait to see whether the next president says whether he will or will not pursue this," he said.

This NBC News coverage of the final grants and the recent history of Obama's clemency initiative closes with a useful account of its ups and downs:

Obama's clemency grants came in large batches, hundreds at a time, accompanied by statements that framed his effort as a bid to become the most merciful president of all time. But his denials were even more voluminous. The effect on applicants and their lawyers was like an emotional roller coaster.

On Wednesday, sandwiched between Obama's two ballyhooed clemency announcements, the Justice Department quietly released the names of more than 2,000 applicants who'd been denied.

James Felman, a Florida defense lawyer who represents dozens of inmates who applied for clemency, celebrated Tuesday when he learned that four had received commutations. On Wednesday, he learned that a dozen others had been denied, and he mourned. On Thursday, Felman was elated again, this time for four more clients who were on Obama's list. A dozen of Felman's clients still have heard nothing. Three are serving life sentences.

And then there's the matter of reform. Advocates point out that clemency does nothing to change policies that led to mass incarceration. Efforts to ease those laws beyond the 2010 changes have stalled in Congress.

Felman, who won commutation for 44 total clients, called Obama's initiative "the single most gratifying professional experience I've ever undertaken." He added: "I have so much gratitude for the president for having the courage and fortitude for doing this. But we know this is not a substitute for reforming the laws that got us here, and we still haven't accomplished that."

January 19, 2017 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Noting that two death row inmates were among the latest batch of commutations by Prez Obama

I am intrigued and a bit surprised that there has not been more media attention surrounding the fact that two of the persons granted clemency by Prez Obama earlier this week were murderers on federal death row.   This posting at the Death Penalty Information Center reports on the basics, with also interesting links to some clemency materials:

On January 17, 2017, President Barack Obama commuted the death sentences of Abelardo Arboleda Ortiz, a federal death row prisoner, and Dwight Loving, a military death row prisoner. The two men were among 209 commutations and 64 pardons announced by the White House on the 17th.

Ortiz's lawyers sought clemency from the President on the grounds that Ortiz was intellectually disabled, his right to consular notification under the Vienna Convention had been violated, he did not himself commit the murder and was not in the room when it occurred, and he had been denied effective assistance of counsel at trial. Loving's attorneys argued for clemency on the basis of ineffective assistance of counsel, racial and gender bias in the selection of members of his court-martial, and Supreme Court rulings that called into question the constitutionality of the process by which the military imposes the death penalty.

In Loving's clemency petition, his lawyers state, "Issues of command influence, racial discrimination, and improper panel voting procedures – which were ignored by the courts based on technical legal evidentiary rules – will forever overshadow Loving’s death sentence. Executing him [will] not promote justice or ensure good order and discipline any more than a sentence of life imprisonment."

Ortiz's lawyers said they were "incredibly grateful" to President Obama for the commutation. In a statement, Amy Gershenfeld Donnella said, "Mr. Arboleda Ortiz’s case highlights several of the glaring problems that plague the federal system no less than state systems: dreadful lawyering by defense counsel; disproportionate sentencing even among co-defendants; significant racial, economic and geographic disparities in the choice of those who will be tried capitally; and procedural constraints that make it virtually impossible to correct a conviction or sentence imposed, even in violation of the Constitution, when new evidence comes to light." His case, she said, "epitomizes the broken federal death penalty system." Although federal law and the U.S. Constitution both prohibit using the death penalty against persons who are intellectually disabled, Ortiz's trial lawyer never investigated his intellectual disability, Donnella said. As a result, the jurors made their decision on life or death "in a complete vaccuum" and "an intellectually disabled person of color with an IQ of 54 who was never able to learn to read, write, or do simple arithmetic, and could not even tie his shoes until he was ten years old" was sentenced to die.

Both Ortiz and Loving will now serve sentences of life in prison without the possibility of parole.

This new Marshall Project piece, headlined "How Obama Disappointed on the Death Penalty: Two commutations this week was less than many had hoped for," discusses these two clemencies while also suggesting that they provide only a little succor to the capital abolitionist community.

January 19, 2017 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Using execution protocol with midazolam, Virginia completes second execution of 2017

As reported in this Reuters piece headlined "Virginia inmate executed despite arguments against drug 'cocktail'," Virginia carried out an execution last night that was notable in part because of the type of lethal injection drugs acquired and utilized.  Here are the details:

Ricky Gray, 39, died by lethal injection at 9:42 p.m. at the Greensville Correctional Center, Virginia Department of Corrections spokeswoman Lisa Kinney said in an emailed statement.

Gray's lawyers filed an emergency petition with the Supreme Court on Tuesday, saying that the three-drug combination could cause Gray unnecessary suffering and thereby violate constitutional guarantees against cruel and unusual punishment.  Kinney told reporters after the execution there did not appear to be any complications with the injection.

According to Gray's stay request, the execution marks the first time a U.S. state has used two of the drugs — midazolam and potassium chloride — provided by a compounding pharmacy. Gray's lawyers argue that compounding pharmacies typically follow an informal recipe attempting to approximate the patented process approved by the U.S. Food and Drug Administration....  Gray's attorneys say that midazolam has already failed to render prisoners unconscious during executions in Alabama, Arizona, Ohio and Oklahoma.

Pharmaceutical manufacturers have stopped making some drugs available for use in executions, and Virginia state law allows the vendor's identity to remain secret. Arizona last month reached a settlement with lawyers for death row inmates that would bar midazolam from use in executions.

Gray was sentenced to die for the 2006 slayings of sisters Ruby Harvey, 4, and Stella Harvey, 9, in Richmond. He also killed their parents, Bryan Harvey, 49, and Kathryn Harvey, 39. His accomplice, Ray Dandridge, was sentenced to life. The pair also killed Ashley Baskerville, 21, who had been a lookout when Gray killed the Harveys as well as her mother, Mary Tucker, 47, and stepfather Percyell Tucker, 55.

Gray has said he is willing to die by firing squad, which is not an option for executions in Virginia. Gray's execution marks the second in the United States this year.

I believe the execution protocol used in Virginia in this instance is similar to the protocol that Ohio wants to use to get back into the execution game next month, and thus I suspect Ohio correction officials are hoping this execution sets a precedent allowing Ohio to move forward. Ohio, notably, has had only one execution over the last three years because of problems acquiring lethal injection drugs. But if they get these problems worked out, there is every reason to suspect the state may get back into the habit of completing five or more executions every year because it has dozens of death row inmates with "serious" execution dates.

January 19, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

A revised empirical look at outcomes achieved by federal public defenders and court-appointed attorneys

In this post from this past summer I noted an intriguing empirical paper posted on SSRN by Yotam Shem-Tov in which the authored, after taking a deep dive into "data from all multiple defendant cases in federal courts between 2001-2014," reached the finding that "that defendants assigned a public defender in co-defendant cases had slightly worse outcomes."  A few federal public defenders let me know that the author was checking his data after receiving feedback, and the revised paper now, available here, carries a slightly different title and a significantly different key finding in its abstract:

"An Investigation of Indigent Defense Systems: Public Defenders vs. Court-Appointed Attorneys" by Yotam Shem-Tov

Abstract: To provide essential, constitutionally mandated legal services for defendants without financial means, US courts employ indigent defense systems composed of private court-appointed attorneys and public defenders’ organizations. I investigate the public defender’s causal effect on defendant sentencing outcomes relative to private court-appointed attorneys using a new “twins design” identification strategy. I argue and show empirically that in multiple defendant cases the decision of who is assigned to the public defender organization in jurisdiction X, a large urban locality, can be treated as close to a randomized experiment, which can be utilized to measure the effectiveness of court-appointed private attorneys relative to public defenders. I find that public defenders out-perform court-appointed attorneys in a range of sentencing outcomes. Employing a similar identification strategy in federal courts finds that public defenders perform at least as well if not better then court-appointed attorneys in multiple defendant cases. I provide strong evidence of selection in the assignment of attorney types to defendants in both jurisdiction X and federal courts, which makes a naıve comparison invalid and misleading.

My understanding is that the new empirical analysis now more properly accounts for the fact that public defenders typically will represent the lead defendant (and thus the one usually most culpable defendant) in multiple defendant cases, and thus a proper analysis needs to account for this critical variable.

January 19, 2017 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

"State Advances in Criminal Justice Reform, 2016"

The title of this post is the title of this helpful new "Policy Brief" coming from The Sentencing Project.  Here is the brief introductory paragraph to the four-page documents helpful accounting of state-level reforms in the year that was:

During 2016, reforms were adopted in at least 17 states targeted at reducing prison populations and addressing collateral consequences for persons with criminal convictions.  The issue of mass incarceration has gained broader attention among diverse constituencies, including lawmakers, faith leaders, and civil rights advocates, contributing to a more receptive political environment for criminal justice reform.  Highlighted below are the most significant state reforms of 2016 in the areas of sentencing and rights restoration for people with criminal records.

January 19, 2017 in State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Wednesday, January 18, 2017

Top Massachusetts court adopts "new protocol for case-by-case adjudication" of over 20,000 drug convictions tainted by misconduct of lab chemist

The Massachusetts Supreme Judicial Court today issues a huge new ruling to try to resolve a huge old problem caused by drug lab misconduct. The start of the opinion in Bridgeman v. District Attorney for the Suffolk District, No. SJC 12157 (Mass. Jan. 18, 2017)(available here), provides the back-story and the essential:

We once again confront the tragic legacy of the misconduct of Annie Dookhan when she was employed as a chemist at the William A. Hinton State Laboratory Institute (Hinton lab). In Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465, 487 (2015) (Bridgeman I), the petitioners and the intervener, the Committee for Public Counsel Services (CPCS), asked that we exercise our broad powers of superintendence to vacate the thousands of drug convictions affected by Dookhan's misconduct because the time and expense of case-by-case adjudication had become "untenable."  We declined at that time to adopt their proposed "global remedy."  However, the district attorneys have now provided the single justice with lists identifying more than 20,000 defendants who could be eligible for relief based on Dookhan's misconduct but who have not yet sought relief from their drug convictions.  As a result of the number of potentially aggrieved defendants, the single justice issued a reservation and report to the full court that essentially invites us to reconsider whether the time has come for a global remedy or whether further steps must be taken to realistically implement the remedy of case-by-case adjudication of potentially thousands of motions for a new trial.

After such reconsideration, we decline to adopt the district attorneys' argument that we should stay the course we had previously set and take no further action to protect the rights of the "relevant Dookhan defendants."  We also decline to adopt the petitioners' request for a global remedy in which we would either vacate the convictions of all relevant Dookhan defendants with prejudice, and thereby bar any reprosecution, or vacate the convictions without prejudice, and allow the Commonwealth one year to reprosecute, dismissing with prejudice all cases not reprosecuted within that time period.

We instead adopt a new protocol for case-by-case adjudication, which will occur in three phases, and order its implementation by the single justice in the form of a declaratory judgment.  In the first phase, the district attorneys shall exercise their prosecutorial discretion and reduce the number of relevant Dookhan defendants by moving to vacate and dismiss with prejudice all drug cases the district attorneys would not or could not reprosecute if a new trial were ordered.  In the second phase, new, adequate notice shall be approved by the single justice and provided to all relevant Dookhan defendants whose cases have not been dismissed in phase one.  In the third phase, CPCS shall assign counsel to all indigent relevant Dookhan defendants who wish to explore the possibility of moving to vacate their plea or for a new trial.  If the number seeking counsel is so large that counsel cannot be assigned despite CPCS's best efforts, the single justice will fashion an appropriate remedy under our general superintendence authority for the constitutional violation, which may include dismissing without prejudice the relevant drug convictions in cases where an indigent defendant is deprived of the right to counsel.

We recognize that the implementation of this protocol will substantially burden the district attorneys, CPCS, and the courts.  But we also recognize that Dookhan's misconduct at the Hinton lab has substantially burdened the due process rights of many thousands of defendants whose convictions rested on her tainted drug analysis and who, even if they have served their sentences, continue to suffer the collateral consequences arising from those convictions.  And we recognize as well that, more than four years after Dookhan's misconduct was revealed, more than 20,000 defendants who are entitled to a conclusive presumption that egregious government misconduct occurred in their case have yet to receive adequate notice that they may have been victimized by Dookhan's misconduct, that they may file a motion to vacate their drug conviction, and that they have a right to counsel to assist them in the preparation of such a motion.  The remedy we order, challenging as it is to implement, preserves the ability of these defendants to vindicate their rights through case-by-case adjudication, respects the exercise of prosecutorial discretion, and maintains the fairness and integrity of our criminal justice system in the wake of a laboratory scandal of unprecedented magnitude.

January 18, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Some attacks and some defenses of Prez Obama's decision to commute sentence of Chelsea Manning

Because I have not spent a lot of time reviewing the many distinctive and seemingly unique facts relating to Chelsea Manning's offenses and personal history, I really do not have strong opinions about Prez Obama's notable decision to commute her sentence from 35 years down to roughly 7.  But it does seem that a lot of other folks have strong views, and here is a mini-round up of criticisms and defenses:

January 18, 2017 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

"Dear President Trump: Here’s How to get Right on Crime, Part 1"

The title of this post is the headline of this notable new Marshall Project piece that is the start of a timely three-part series.  Here is how the Marshall Project editors set up the series:

The election of Donald Trump, who ran a swaggering tough-on-crime campaign, disheartened many advocates of bipartisan criminal justice reform.  The Marshall Project invited conservatives active in that cause to make a case to the president-elect — a conservative case — for ways to make the system more fair, humane and effective.  This is the first of three commentaries.

The commentary to kick this off comes from Pat Nolan and carries the subheadline "Focus on intent, tailor the punishment to the crime, prepare prisoners for life after incarceration."  Here is how it gets started:

Conservatives believe that the core function of government is keeping the public safe from harm within the constraints of individual liberty and limited government. We know it is the nature of bureaucracy that government agencies grow in size and inefficiency. The justice system must be held accountable for wise use of tax dollars just as it holds offenders accountable for their actions.

Crime is more than lawbreaking — it is victim harming. Victims should be involved at all stages of the justice process, and the system should aim to repair the harm caused by the crime whenever possible. Offenders should be held accountable to make restitution to their victims.

Evil intent (mens rea) has long been an essential element of all crimes. In recent years, however, the mens rea requirement has been dropped in favor of finding criminality even if there is no intent to break the law. Thus, an act committed in good faith can become the basis for a criminal conviction and a prison sentence. This is wrong, and mens rea must be restored as a key element of every crime.

The greatest power we cede to government is the ability to put someone in prison. While prisons are necessary to isolate offenders who threaten the safety of the community, there is a growing tendency to overuse prisons even when the public is not endangered. There are proven ways to hold non-dangerous offenders accountable without sending them to prison. We should use costly prison beds for the truly dangerous. Prisons are for people we are afraid of, but too often they are used for people we are merely mad at.

Cases should be decided individually, not as an assembly line of one-size-fits-all sentences. The harm done by a sentence should never be greater than the harm caused by the crime.

Crime that crosses state lines and national borders is the proper purview of federal laws. Other than those limited situations, crime is an inherently local problem and should be governed by local and state laws. However, in recent years Congress has federalized many crimes such as carjacking which have no national scope merely to strike a politically popular pose.  Only those crimes that have a national reach should be federalized. Other crimes should be left to local law enforcement that is more responsive to their residents.

We recommend greater use of problem-solving courts, such as drug courts, veterans’ courts and mental health courts tailored to the special problems faced by these populations.

Prisons should do more than warehouse inmates. They should prepare offenders for their return to society by providing educational programs such as GED classes, drug treatment, anger management, and job skills. The cost of these programs is far exceeded by the savings from the resulting drop in crime rates.

January 18, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Tuesday, January 17, 2017

Prez Obama issues clemency to 273 more individuals (209 commutation and 64 pardons) and Chelsea Manning among those getting a commuted sentence

Moments after I blogged about the New York Times criticizing Prez Obama on his pardon efforts, this news emerges from the White House:

Today, 273 individuals learned that the President has given them a second chance.  With today’s 209 grants of commutation, the President has now commuted the sentences of 1,385 individuals — the most grants of commutation issued by any President in this nation’s history.  President Obama’s 1,385 commutation grants — which includes 504 life sentences — is also more than the total number of commutations issued by the past 12 presidents combined.  And with today’s 64 pardons, the President has now granted a total of 212 pardons.

Today, 209 commutation recipients — including 109 individuals who had believed they would live out their remaining days in prison — learned that they will be rejoining their families and loved ones, and 64 pardon recipients learned that their past convictions have been forgiven.  These 273 individuals learned that our nation is a forgiving nation, where hard work and a commitment to rehabilitation can lead to a second chance, and where wrongs from the past will not deprive an individual of the opportunity to move forward.  Today, 273 individuals — like President Obama’s 1,324 clemency recipients before them — learned that our President has found them deserving of a second chance.

There is at least one high-profile recipient of a commutation today, as this FoxNews headline reveals:

"Obama commutes Chelsea Manning's sentence for leaking Army documents":

The White House said that Manning is one of 209 inmates whose sentences Obama is shortening. Obama is also pardoning 64 people, including retired Gen. James Cartwright, who was charged with making false statements during a probe into disclosure of classified information. Most of the other people receiving commutations were serving sentences for nonviolent drug offenses.

Manning is more than six years into a 35-year sentence for leaking classified government and military documents to the anti-secrecy website WikiLeaks. Her sentence is now set to expire May 17.

January 17, 2017 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (25)

NY Times editorial rightly notes Prez Obama's clemency failings, especially with respect to pardons

This New York Times editorial, headlined "Mr. Obama, Pick Up Your Pardon Pen," properly laments the fact that Prez Obama has used his clemency power much more for commutations than for pardons, and it even takes some astute shots at the Prez for how his has gone about his commutations.  Here is some of the criticism:

For more than four decades, Sala Udin lived under the shadow of a federal firearms conviction, the result of a search by the Kentucky police who found an unloaded shotgun in the trunk of his car in 1970.

Mr. Udin, who had been a Freedom Rider during the civil rights era, carried the gun for protection as he drove around the South.  After eight months in prison, he lived an exemplary life, serving on the Pittsburgh City Council and playing a role in the city’s redevelopment.  But when President Obama visited Pittsburgh in 2009, Mr. Udin wasn’t allowed to meet him: His criminal record prevented such an encounter.

Last month, Mr. Obama issued Mr. Udin a pardon — one of just 148 pardons the president has granted during his two terms in office.  It is an abysmally low number for a president who has stressed his commitment to second chances and the importance of helping convicted people re-enter society.

The White House has been trumpeting Mr. Obama’s use of his clemency power in the last two years, especially his nearly 1,200 commutations of prison sentences, more than the last several presidents combined.  Most of these inmates were serving outrageously long terms, including life without parole, for nonviolent drug crimes. Commuting those sentences is meaningful progress, even if Mr. Obama could and should have started much earlier and released thousands more deserving people.

But when it comes to the other type of executive clemency — pardons — Mr. Obama hasn’t been an improvement over his predecessors. Unlike a commutation, which shortens or ends a prison sentence, a pardon is an act of forgiveness granted to someone who has completed a sentence. Pardons remove the stigma of conviction and restore the right to hold office, to vote, to obtain certain business licenses and to own a gun — all activities that can be denied those with criminal records.

The reluctance to grant pardons makes even less sense than a reluctance to give out commutations, since the sentences have already been served and there is no public safety concern. In both cases, the trouble rests with the people acting as the gatekeepers of mercy. The clemency process is run out of the Justice Department, where career prosecutors have little interest in reversing the work of their colleagues. It’s a recipe for intransigence, dysfunction and injustice on a mass scale....

There is a better way. In both liberal and conservative states, from Delaware and Connecticut to Nebraska and Georgia, the pardon process is more predictable and transparent. Some states require independent boards to make pardon recommendations to the governor; others hold regularly scheduled public hearings. All take the executive’s job of granting mercy seriously, which makes those grants both more fair and more common.

On Mr. Obama’s first Inauguration Day, in 2009, President George W. Bush gave him a good piece of advice: Pick a pardon policy and stick with it. Perhaps President-elect Donald Trump will learn from Mr. Obama’s failure to heed that wisdom.

Though this is an effective editorial, it might also have noted that federal law lacks any mechanism for getting a criminal record sealed or expunged and thus a Presidential pardon is the only method for a former federal offenders to get his record cleaned. This reality makes pardon practice all that much more important at the federal level, though it also should at some point prompt federal lawmakers to consider creating a needed statutory mechanism for record sealing or expungement as exists in so many states.

January 17, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Some notable local death penalty headlines from two very different localities

These two local capital punishment headlines and stories caught my eye this afternoon:

The Georgia story is just a report on an advocacy group that surely faces an uphill battle getting the Peach State to consider seriously the repeal of the death penalty.  But abolitionists should be revved up about the Washington story as it seems political forces are lining up to make repeal there a real possibility.

January 17, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

Monday, January 16, 2017

SCOTUS to confront implication for immigration statute of Johnson vagueness ruling

On Tuesday, the Supreme Court is scheduled to hear oral argument in Lynch v. Dimaya, which comes to the Justices as part of the aftermath of their big 2015 Armed Career Criminal Act vagueness ruling in Johnson v. United States.  Over at SCOTUSblog here, Kevin Johnson has this preview of the case. It starts this way:

The U.S government targets noncitizens with criminal convictions for removal from the United States.  These efforts have allowed President Barack Obama’s administration to deport approximately 2.5 million noncitizens during Obama’s eight years in office, more than any other president in American history.  On several recent occasions, the Supreme Court has found that the administration went too far and has set aside orders of removal of criminal offenders that it has found to be inconsistent with the immigration statute. For example, in Mellouli v. Lynch, in 2015, the court held that a state misdemeanor conviction for possession of drug paraphernalia did not justify removal.  In 2013, in Moncrieffe v. Holder, the justices found that a lawful permanent resident’s conviction for possession of a small amount of marijuana — now legal in many states — did not mandate removal.  Next week, the Supreme Court will hear oral argument in Lynch v. Dimaya, another criminal-removal case, but one with potentially far-reaching constitutional implications.

A noncitizen, including a lawful permanent resident, who is convicted of an “aggravated felony” is subject to mandatory removal.  The Immigration and Nationality Act defines “aggravated felonies” expansively to include crimes, including some misdemeanors, that run the gamut from murder to virtually any drug and firearm offense.  That definition incorporates 18 U.S.C. §16(b), known as the “residual clause,” which defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

In 2015, in Johnson v. United States, the court, in an opinion by Justice Antonin Scalia, struck down as unconstitutionally vague the Armed Career Criminal Act’s definition of “violent felony,” which included crimes that “involve conduct that presents a serious potential risk of physical injury to another.”  The Johnson court held that the statutory language “fail[ed] to give ordinary people fair notice of the conduct it punishes, [and was] so standardless that it invite[d] arbitrary enforcement.”

Born in the Philippines, James Garcia Dimaya has lived in the United States as a lawful permanent resident since 1992.  Based on Dimaya’s two California burglary convictions, the U.S. government sought to remove him from the United States.  Finding that burglary was a “crime of violence” under Section 16(b)’s residual clause and thus an “aggravated felony,” an immigration judge ordered Dimaya removed.  The Board of Immigration Appeals agreed.  In a rare decision finding a removal provision of the U.S. immigration laws to be unconstitutional, the U.S. Court of Appeals for the 9th Circuit concluded that Section 16(b) was void for vagueness.

January 16, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

After reviewing tens of thousands of requests, Obama Administration reportedly finds a few hundred more prisoners worthy of clemency

Anyone hoping Prez Obama would go out of office this week with a huge clemency bang will likely be disappointed to see this new Washington Post report headlined "Obama to commute hundreds of federal drug sentences in final grants of clemency."  I have been assuming Obama would make news with a few hundred more grants, but I know some advocates were hoping there would be perhaps thousands of commutations as Obama heads for the Oval Office exit.  Here instead is what we can expect after seemingly a whole lot of work by a whole lot of lawyers and DOJ officials:

Justice Department officials have completed their review of more than 16,000 clemency petitions filed by federal prisoners over the past two years and sent their last recommendations to President Obama, who is set to grant hundreds more commutations to nonviolent drug offenders during his final days in office.

“Everyone has killed themselves here to get the final recommendations to the president,” Deputy Attorney General Sally Q. Yates said in an interview. “We were in overdrive. We were determined to live up to our commitment. It was 24-7 over the Christmas break.” U.S. Pardon Attorney Robert A. Zauzmer has not taken a day off since Yates brought him on in February 2016 to sift through the backlog of thousands of petitions. From her home in Atlanta, Yates said she reviewed hundreds of petitions during the holidays.

As President-elect Donald Trump prepares to take office, Justice officials worry that his administration will dismantle Obama’s clemency initiative, which has resulted in the early release of 1,176 drug offenders who were sentenced under the severe mandatory minimum laws passed in the 1980s and 1990s during the nation’s “war on drugs.” More than 400 were serving life sentences. Yates said Obama will grant “a significant” number of commutations this week, but would not specify a number. Several people close to the process said it will be several hundred.

Those officials also fear that the next attorney general may undo new criminal justice policies. Then-Attorney General Eric H. Holder Jr. put in place a policy three years ago to reserve the most severe drug-offense penalties for high-level or violent drug traffickers — and no longer charge low-level, nonviolent drug offenders with crimes that impose severe mandatory minimum sentences. Justice Department data indicate that prosecutors are now focusing on more-serious drug cases, and there have been fewer charges that carry mandatory sentences.

Neither Trump nor his attorney general-nominee, Sen. Jeff Sessions (R-Ala.), has said what actions might be taken on drug charging policy or clemency, but during his campaign, Trump criticized Obama’s initiative to grant commutations. “Some of these people are bad dudes,” he said. “And these are people who are out, they’re walking the streets. Sleep tight, folks.”...

At several points during the past two years, it appeared that Obama’s clemency initiative might have been derailed, partly by a lack of resources but also by a cumbersome review process. After Holder and then-Deputy Attorney General James Cole began the effort in the spring of 2014, thousands of inmates applied. To help them with their petitions, outside lawyers formed an organization called Clemency Project 2014, which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers.

About 4,000 volunteer lawyers signed up to help in what has become one of the largest pro bono efforts in the history of the legal profession in the United States. Once the lawyers submitted the petitions, the U.S. pardon attorney made recommendations to the deputy attorney general, who reviewed the cases and sent them to the White House counsel, who also reviewed them before choosing which ones went to Obama.

When Yates arrived at Justice in the spring of 2015, the clemency program was overwhelmed and bogged down. Advocates criticized the inefficient process and urged the Obama administration to pick up the pace for the inmates waiting for relief from unfair sentences. “There wasn’t an apparatus set up,” Yates said. “When I arrived, they were doing the best they could . . . but we didn’t really have a playbook.”

Early last year, more than 9,000 clemency petitions were pending, and the pardon attorney at the time was so frustrated that she quit.  Yates brought on Zauzmer, a longtime federal prosecutor, who prioritized applications so that Justice lawyers could focus on inmates who met the criteria: Inmates had to have served at least 10 years; had no significant criminal history; no connection to gangs, cartels or organized crime; and probably would have received a “substantially lower sentence” if convicted today.

“These are big decisions that you’re making,” Yates said, alluding to the public-safety risks and the need to provide a “sophisticated analysis” to the president. “If it’s to let someone out of prison early, earlier than what their original sentence was, you’ve got to be careful about those decisions,” she said. “There’s lots of people whose current offense or conviction is a nonviolent drug offense . . . but you have to look at their past as well and at their criminal history.  You have to look at their conduct [in prison].”

Not all inmates who have been granted clemency will be released immediately or even in a number of months. Last summer, the Obama administration began granting clemency to some inmates by reducing their sentences; in some cases, they will remain in prison for years.  At the end of August, Yates announced that she would review and give Obama a recommendation on every petition from a drug offender that was still in the department’s possession at that time — about 6,195 petitions.  She did that, and included several hundred petitions received through Sept. 15, after her cutoff date.  She also reviewed petitions that came in as late as Nov. 30 from drug offenders serving life sentences. By last Friday, the final number of petitions reviewed was 16,776. “Sally deserves a lot of credit,” Holder said in an interview. “She set this goal of looking at every drug-clemency petition, and they accomplished that.”

I want to give DAG Yates and Pardon Attorney Zauzmer lots and lots of credit for all their efforts, and I will also give some credit to Prez Obama for ultimately making clemency an 11th hour priority.  But given that Prez Obama set of modern record for fewest clemencies during his first term in office, and especially because he leaves in place the same troublesome clemency process that has contributed to problems in the past, I will still look at Obama's tenure largely as an opportunity missed.  

January 16, 2017 in Clemency and Pardons, Criminal justice in the Obama Administration, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

UCLA Prison Law & Policy Program launches Prison Law JD, a new listserv for connecting new folks to prisoners' rights lawyers.

I am pleased to be able to post this announcement I received via email from Professor Sharon Dolovich, who is the director of the UCLA Prison Law & Policy Program:

The UCLA Prison Law & Policy Program has just launched Prison Law JD, a new listserv designed for law students and young lawyers interested in prisoners’ rights.  It will be used to share job and fellowship announcements and other information of interest, and for discussion and mutual support.  There is already an active listserv connecting practicing prisoners’ rights lawyers around the country, which has enabled the building of a strong and supportive national community of people doing this work.  Prison Law JD aims to build out this community to include the next generation of prisoners’ rights advocates.

If you know any law students or young lawyers who might want to join, please invite them to contact Sharon Dolovich at dolovich @ law.ucla.edu.

January 16, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Questioning a new term of supervised release after Prez Obama commutes a life sentence

This new article at The Fix highlights an interesting legal issue that has arisen in the wake of Prez Obama's decision to commute a drug offenders life sentence.  Here are the particulars (with a few edits for keeping the legal terminology accurate):

When Jimmy Walden was granted clemency by President Obama, it was the happiest day of his life.  Walden was locked up on May 19, 2008 and given a life sentence under federal sentencing guidelines for a very minor drug offense in Tennessee.  On August 4, 2016, Walden received an Executive Grant of Clemency commuting his total trial sentence of imprisonment to expire on August 3, 2018.  He was ecstatic, but then he got a letter from the court informing him that they wanted to impose a 10-year term of supervised release. The court hadn’t deemed it necessary at the time due to Walden’s life sentence, but since he was getting out, his judge now wanted to impose [supervised release], which in effect is another sentence.

“I was arrested in September 2007.  My case was possession with attempt to distribute crack cocaine and marijuana,” Walden tells The Fix from Federal Correctional Institution, Jesup in Georgia. “They arrested me and wanted me to tell. I refused and went to trial. They found me not guilty of count one and guilty of counts two to five.  They gave me life from enhancing me because of my priors.”

The two priors were for very small amounts of crack. Walden got caught with 1.3 grams the first time and .5 grams the second time. He was charged with possession with intent to sell. He was sentenced to probation in both cases.  But the federal government used those two priors to trigger the career criminal statute and sentenced Walden to life. He was effectively doing life for around 50 grams of crack cocaine.  That’s why Obama pardoned him, because he was serving a disproportionate sentence....

But at the same time he was getting congratulated on his presidential commutation, he received a disconcerting letter from the sentencing court saying that even though his judge omitted to sentence him to [supervised release] at his original sentencing, the judge now wanted to impose a term of supervised release on Walden once he was released. The judge went back and did a re-do, issuing an order that would amend a judgement that was final nine years ago. If Walden tried to get back in court on some issue and change his sentence, he’d be time barred by the court — but it seems the court can do as it pleases when it comes to drug war prisoners, while those unjustly incarcerated must follow the rules....

For some clarity on the matter, The Fix reached out to some clemency experts — P.S. Ruckman Jr., a professor of political science who runs the Pardon Power blog, and Margaret Love, the former pardon attorney under former President Bill Clinton — to get their opinions on the legalities involved with pardons and what the courts can or can’t do in this situation. “The president has the power to grant commutations of sentence, with or without conditions,” Ruckman tells The Fix....  “Presidents have commuted sentences on the condition that prisoners never drink again, that they live with their parents, that they leave D.C., that they join the army, that they leave the United States and never return, etc. In the past, prisoners have refused attached conditions and chosen to remain in prison.  My understanding is that this was a conditional pardon.”

If 10 years [supervised release] was one of the conditions of clemency like attending the Bureau of Prisons’ Residential Drug Abuse Program was then Walden has to accept it as part of the clemency grant or stay in prison like Ruckman said. No one would do that, but if the 10 years supervised release wasn’t a condition of the grant of clemency, then the court shouldn’t have any right to impose it. That would be illegal.

“I understand that the president’s commutation order did not mention a term of supervised release,” Margaret Love tells The Fix. “In any case, the pardon power does not authorize the president to impose a new sentence (which is what a term of supervised release is). The court's power to amend the original judgment to impose a new sentence of supervised release at this point, or to impose any conditions on his release, seems highly doubtful. At this point the court has no power to impose a term of supervised release, effectively a new sentence.”...

Pursuant to Rule 36, the court sent notice to Walden that it intends to amend the Judgment and Commitment Order to correct the Court's omission of failing to impose mandatory terms of supervised release as required by the statute. The court intends to order that all terms of supervised release run concurrently for a net effective term of 10 years of supervised release. The court also intends to impose the Standards Conditions of Supervision that have been adopted by his Court. The court appointed a public defender and informed Walden that he could object to the imposition of the term of supervised release.

“I objected,” Walden says.  “The point is I have remained in zero trouble inside prison. The president gave me clemency because he believed in me.  The judge now wants to add 10 years supervised release onto my sentence after my sentence has been final for over nine years. This is a violation of due process. As an inmate I have no legal way to get back into court. They had their chance at sentencing.  I disagree with this reasoning and I have filed a statement that I object to this addition with my attorney.  This is an interesting situation. Many people seem interested in the outcome.  It is illegal and should be brought to the public's attention.”

Even Walden’s public defender wasn’t sure about the legalities involved in this case, “I am currently reaching out to defenders across the nation to see if they have input on whether this is permissible post-grant of clemency,” she wrote him. Currently the public defender is in the process of making a supplement to the objections that Walden has. Plus other prisoners who received clemency grants from Obama have not received letters from their judge and court attempting to amend a judgment that is already final. Walden is ready to get on with his life without [supervised release] hovering over his head.

“I would like to drive trucks after getting my CDL license,” Walden says. “I thank God for another chance. I have this desire to drive trucks and see the country at the same time. Perhaps I will have a chance to speak to younger people and explain to them how unwise choices have consequences. I can stop youth from making the same mistakes I have. I am blessed that Obama came into office and helped me, or I’d be just another number serving life behind bars. There may not always be a President Obama around to give people another chance. I will definitely take the opportunity to prove to people like the President-elect that some people are deserving of a second chance.  I would certainly not want to mess up someone down the line from getting the same relief as me.”

The legal issue here strikes me as an interesting mix of functionalities and technicalities.  There was, of course, no functional reason for the sentencing judge to impose any term of supervised release at initial sentencing when imposing an LWOP sentence. But now that a commutation has resulted in an offender getting released after serving less than a decade, there now is a functional reason for imposing at least some SR term (which would have been a required part of the sentence had the defendant been sentenced to less than LWOP).  But, technically, I think there is a forceful argument that if the Prez did not include the addition of an SR term in his clemency grant, then it is improper for the original sentencing judge to now add that on to the defendant's original (now commuted) sentence.

Notably, the White House clemency page reports that the "1,176 men and women" who have had their prison sentences commuted by Prez Obama includes "395 individuals who were serving life sentences." Thus there are literally hundreds of individuals who could have this kind of post-commutation issue arise (although I doubt all sentencing courts are going to be as proactive as the court that added 10 years of supervised release to Walden's sentence).

January 16, 2017 in Clemency and Pardons, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (20)

Sunday, January 15, 2017

Nebraska Supreme Court decides "undocumented status" can be proper, but not conclusive, sentencing factor when deciding on probation sentence

As reported in this local article, headlined "Immigration status can be used to help decide sentencing, Nebraska Supreme Court says," the top court in the Cornhusker State handed down an interesting ruling late last week. Here is the effective press summary of the decision:

A person’s immigration status can be considered when deciding if someone should be sentenced to probation rather than jail, though it cannot be the sole factor, the Nebraska Supreme Court ruled Friday. It was the first time the state’s highest court has weighed in on the issue of whether criminal defendants can be denied probation solely because they are in the country illegally.

Jose Cerritos-Valdez had appealed after being sentenced to 230 days in jail and a $500 fine for two misdemeanors, attempted possession of a controlled substance and driving under the influence. His driving privileges were revoked for one year.

During sentencing, Sarpy County District Judge David Arterburn expressed reluctance to sentence Cerritos-Valdez to probation. One condition of probation is to obey all laws, and to do that, the judge said, would require Cerritos-Valdez to leave the country, because he was in the United States illegally. Arterburn also said he’d like to get some guidance on the issue from a higher court.

The Supreme Court’s ruling, written by Judge Stephanie Stacy, said that while this is an unsettled area of law, a consensus has formed in other courts that defendants cannot be denied probation solely because they are in the country illegally.

The full ruling in Nebraska v. Cerritos-Valdez is available at this link, and here is the heart of the court's nuanced analysis (with footnotes/cites removed):

This case presents the narrow question of whether a defendant’s undocumented status is a relevant consideration when determining whether to grant or deny probation.  We have not previously considered this question, but other courts have.  

While the law in this area is not well settled, a consensus has developed that it is impermissible for a sentencing court to deny probation based solely on a defendant’s undocumented status.  Beyond that broad proposition, courts differ on when, or for what purpose, a sentencing judge may properly consider a defendant’s undocumented status when deciding whether to impose probation.

Generally, in discussing whether it was proper to consider a defendant’s undocumented status in connection with deciding whether to impose a sentence of probation, other courts have focused on whether the defendant’s status implicated other relevant sentencing considerations.  For instance, some courts have held it is appropriate to consider the effect of a defendant’s undocumented status on his or her ability or willingness to comply with conditions of probation.  Other courts have reasoned that a defendant’s undocumented status or a history of repeated illegal reentry into the U.S. may demonstrate an “unwillingness to conform his or her conduct to the conditions of probation” or show that a probation sentence would not “be at all effective” for that defendant.  Still others have held that the undocumented status of defendants may be considered as it relates to their criminal history.  At least one court has noted that a defendant’s undocumented status is properly considered as it relates to the defendant’s employment history or legal employability.  And we note that in some instances, defendants have specifically asked the sentencing court to consider their undocumented status, arguing it would be error not to consider it.

Based on the foregoing, we agree that a defendant’s status as an undocumented immigrant cannot be the sole factor on which a court relies when determining whether to grant or deny probation; however, a sentencing court need not ignore a defendant’s undocumented status.  When deciding whether to grant probation, a defendant’s undocumented status may properly be considered by a sentencing court as one of many factors so long as it is either relevant to the offense for which sentence is being imposed, relevant to consideration of any of the required sentencing factors under Nebraska law, or relevant to the defendant’s ability or willingness to comply with recommended probation conditions.

January 15, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, January 13, 2017

Supreme Court grants cert on four new criminal cases and a dozen others

After a seemingly long quiet period of avoiding taking on too many new cases, the Supreme Court this afternoon issued this order list which grants cert on 16(!) new cases.  I believe these four cases from the list are the only criminal ones, with links to case pages and descriptions via SCOTUSblog:

WEAVER, KENTEL M. V. MASSACHUSETTS: Whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.

MASLENJAK, DIVNA V. UNITED STATES: Whether the U.S. Court of Appeals for the 6th Circuit erred by holding, in direct conflict with the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.

McWILLIAMS, JAMES E. V. DUNN, COMM'R, AL DOC, ET AL.:  Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.

DAVILA, ERICK D. V. DAVIS, DIR., TX DCJ : Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.

Most of these cases look intricate, and maybe Maslenjak could even be viewed as a kind of sentencing case. But, on first look, I see no brewing blockbusters.

UPDATE: Over at Crime & Consequences here, Kent Scheidegger shares some initial reactions to this quartet of new SCOTUS criminal cases.

January 13, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Long-serving US Attorney expected to be named for key Deputy Attorney General position in Justice Department

Usa_rosenstein_fullAs reported here by CNN, "President-elect Donald Trump is expected to nominate Baltimore US Attorney Rod Rosenstein for deputy attorney general, according to people close to the Trump transition." Here is more:

Rosenstein is the longest serving US attorney at the Justice Department, having won unanimous Senate confirmation to his current post in 2005 under the administration of President George W. Bush.  He's well-regarded in the department and stayed on as the top federal prosecutor in Baltimore under the Obama administration.  The then-Democratic-controlled Senate refused to confirm his 2007 nomination to the Fourth Circuit Court of Appeals.

Trump has allowed his Cabinet nominees to play a major role in helping fill top positions in their agencies, a strategy past administrations haven't always followed.  Sessions, a former US attorney in Alabama, helped choose Rosenstein, transition officials say, in part because of his deep ties to the Justice Department.  Despite initial objections by Democrats, Sessions is expected to easily win confirmation.

The deputy attorney general leads day-to-day management of the 111,000 employees of the Justice Department.  Sessions has plans to make violent crime reduction a major part of his focus. In Baltimore, Rosenstein has pursued strategies to use federal agencies including the Drug Enforcement Administration and the Bureau of Alcohol Tobacco Firearms and Explosives to help local authorities tackle high crime rates.

It is my understanding that the Deputy AG typically has even more hands-on impact on criminal justice policies and practices than does the AG, and thus folks especially interested or concerned about future DOJ sentencing reform efforts ought to be taking a close look at Rosenstein.  This profile of Rosenstein from 2011 in the Washington Post paints a favorable picture, and his history working in the last two Democratic Administration's lead me to be optimistic that Rosenstein may be the perfect persons to help shepherd bipartisan sentencing reforms efforts through Congress.

January 13, 2017 in Who Sentences? | Permalink | Comments (0)

Thursday, January 12, 2017

"Mistakes and Justice — Using the Pardon Power to Remedy a Mistake of Law"

The title of this post is the title of this notable new article by Paul Larkin now available via SSRN. Here is the abstract:

American criminal law has never recognized a mistake-of-law defense. The principal rationale for rejecting it has been that the community knows what the criminal law prohibits.  That may have been a reasonable rule when there were only a handful of crimes, and each one also violated the contemporary moral code, but that rule makes no sense today, given the use of the criminal law to enforce thousands of sometimes technical, arcane administrative regulations.  Clemency, however, may be a perfect vehicle for the implementation of a mistake- or ignorance-of-the-law defense.

Throughout Anglo-American legal history, kings, presidents, and governors have used their pardon power as a vehicle to remedy injustices in the criminal justice system.  The conviction of a person for conduct that no reasonable person would have thought to be a crime certainly qualifies as a miscarriage of justice.  Presidents and governors should consider using their clemency authority to pardon legitimate cases of mistake or ignorance, which might particularly arise in connection with strict criminal liability or regulatory crimes.

January 12, 2017 in Clemency and Pardons, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

New report spotlights five Florida counties often condemning to death murderers have mental impairments

A few weeks ago, as noted in this prior post, Harvard Law School's Fair Punishment Project (FPP) released a report detailing and lamenting the composition of Oregon's death row under the title "Oregon’s Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments."  Today, FPP has this new report bringing a similar analysis and criticism to a portion of a different state.  This new report is titled "Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments in Five Florida Counties,"  and here are excerpts from the introduction:

The Florida Supreme Court recently held that the state’s capital punishment statute is unconstitutional. Approximately 380 people sentenced to death under the now-invalidated sentencing scheme remain on the death row. While litigation is still pending over whether the decision applies to all Florida death sentences, the Court has clarified that the approximately 150 people who were convicted after the Ring v. Arizona decision in 2002 must have their sentences reconsidered. Roughly one-third of these individuals convicted since 2002 come from just five of Florida’s 67 counties: Duval, Miami-Dade, Hillsborough, Orange, and Pinellas.

This report examines the 48 invalidated death sentences from these five Florida counties. We examined legal pleadings and opinions, trial testimony, and media reports, and consulted with several legal experts in Florida who are familiar with the individuals on death row.

Our research revealed that 63 percent of these individuals exhibit signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred. The pervasiveness of these crippling impairments among Florida’s death row population is significant when evaluating whether the death penalty was the appropriate sentence. Although all murders are gruesome and deserving of serious sanction, the Constitution limits the death penalty to the most heinous murders. Even then, the Constitution and established Supreme Court doctrine have limited application of the death penalty to adults who exhibits mental and emotional functioning that is equal to or exceeds that of the typically developed adult. So, for example, the U.S. Supreme Court has held that, regardless of the severity of the crime, the death penalty cannot be imposed upon a juvenile or an intellectually disabled person, both classes of individuals who suffer from impaired mental and emotional capacity relative to typically developed adults. To do otherwise would be so disproportionate as to violate his or her “inherent dignity as a human being.”

January 12, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

New Jersey Supreme Court addresses Miller's application to all serious juve sentencings

As reported in this local article, the top court in the Garden State "ruled unanimously Wednesday to overhaul the way New Jersey judges sentence juveniles convicted in violent crimes that could keep them in prison until they are elderly or dead." Here is more from the press report on the opinion:

The state's highest court ruled 7-0 that judges must consider a number of factors -- including age, family environment, and peer pressure -- before issuing lengthy sentences to youths in serious cases. Peter Verniero, a former state Supreme Court justice and state attorney general, said this is "one of the most significant sentencing decisions" the court has made in "many years."

And in a rare move, the court also urged the New Jersey Legislature to revise the state's current law on juvenile sentencing to "avoid a potential constitutional challenge in the future," according to the decision, written by Chief Justice Stuart Rabner.

The decision is the result of appeals filed by a pair of men who were convicted separately of violent crimes years ago in Essex County when they were 17 and were sentenced to decades in prison. Ricky Zuber was convicted for his role in two gang rapes in 1981 and was sentenced to 110 years in prison. He would not have been eligible for parole for 55 years -- a time when he would be 72. James Comer was convicted of four armed robberies in 2000, including one where an accomplice shot and killed a victim. He would have become eligible for parole when he was 85 -- after having served 68 years.

Rabner wrote that judges in both cases did not take "age or related circumstances" into account when issuing the sentences. But, Rabner said, the U.S. Supreme Court has since "sent a clear message" that "children are different" from adults and that "youth and its attendant characteristics" must be considered when sentencing a juvenile to life in prison without parole.

"Because of their young age at the time of their crimes, both defendants can expect to spend more than a half century in jail before they may be released -- longer than the time served by some adults convicted of first-degree murder," Rabner wrote.

Rabner cited how in a 2012 decision called Miller v. Alabama, the U.S. Supreme Court ruled that judges presiding over cases involving juveniles facing life sentences without parole must consider a number of factors before sentencing. Those include immaturity; family and home environment; family and peer pressures; an"inability to deal with police officers or prosecutors" or their own attorney; and "the possibility of rehabilitation."

But New Jersey's Supreme Court went further, saying those standards must be applied not only to sentences of life without parole but also to youths who face lengthy sentences. The court also cited a the Eighth Amendment of the U.S. Constitution, which protects defendants from "cruel and unusual punishment."

"Youth matters under the constitution," Rabner wrote.

The full opinion is available at this link, and it covers a lot of important post-Graham and post-Miller ground concerning juvenile sentencing.

January 12, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, January 11, 2017

"Is Qualified Immunity Unlawful?"

The title of this post is the title of this provocative new article authored by William Baude and now available via SSRN. Here is the abstract:

The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point.  This article argues that the doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.

Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983.  One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity.

But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons.  There was no such defense; there was no such mistake; lenity ought not apply.  And even if these things were otherwise, the doctrine of qualified immunity would not be the best response.

The unlawfulness of qualified immunity is of particular importance now.  Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways.  In particular, the Court has given qualified immunity a privileged place on its agenda reserved for few other legal doctrines besides habeas deference.  Rather than doubling down, the Court ought to be beating a retreat.

Though technically not a sentencing article, any conceptual and/or doctrinal strike against qualified immunity seems likely also to be a blow against the absolute immunity that right now protects from litigation scrutiny the sentencing decisions made by prosecutors and judges.

January 11, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Great political and practical "state of reform" reviews via Jacobin

ImagesThe magazine Jacobin has recently run two effective pieces by two effective writers about the politics and practicalities of modern sentencing reform efforts. Here are links to the lengthy pieces, both of which I recommend in full, with their introductions:

"Conservatives Against Incarceration?: Fiscal conservatives were never going to bring down the carceral state. A broader fight against social inequality is needed." by Marie Gottschalk

Many are mourning the death of comprehensive criminal justice reform at the federal level in the wake of the election of Donald Trump, who unabashedly campaigned as the law-and-order candidate. They fear we may be at the beginning of the end of the “smart-on-crime” era, in which historic adversaries across the political spectrum joined forces to reverse the punitive policies and politics that have turned the United States into the world’s leading warden.

Some have sought solace in the belief that Trump’s victory will have a limited impact because most people are apprehended, tried, and sentenced subject to state and local statutes and authorities, not federal ones, and that 90 percent of the more than 2 million people incarcerated today in the United States are serving their time in state prisons and county jails, not federal penitentiaries. They view Trump as a political meteorite that may have blown up the elite bipartisan reform coalition in Washington as it blazed through an uncharted political universe but left promising reform coalitions at the state and local levels largely intact.

This conventional postmortem paradoxically overestimates Trump’s responsibility for imperiling criminal justice reform at the national level while underestimating his likely impact on state and local reform efforts.

Trump’s outsized personality and spectacular victory obscure the reality that the smart-on-crime approach had severe limitations and weaknesses that have been hiding in plain sight for years. The politics that gave birth to this strange bedfellows coalition engineered by Right on Crime — a group of brand-name conservatives and libertarians that included Newt Gingrich, Grover Norquist, and Charles and David Koch — helps explain both its limited accomplishments and the triumph of Trumpism.

"America’s Durable Monstrosity: New figures show that the US prison population has dropped. But mass incarceration remains firmly intact." by Daniel Denvir

A ray of sunshine recently poked through the otherwise gloomy holiday headlines: “US prison population falling as crime rates stay low.”  The prison population has indeed fallen, and crime rates are still down.  But while the crime that politicians exploited to create mass incarceration has plummeted, the number of prisoners locked up in the name of public safety has only budged.

Mass incarceration, in short, remains a durable monstrosity.

As of 2015, an estimated 2,173,800 Americans were behind bars — 1,526,800 in prison and 728,200 in jails — according to recently released data from the Bureau of Justice Statistics.  That’s 16,400 fewer people in jail and 35,500 fewer prisoners than in 2014 — a 2.3 percent decline and, for prisoners, the largest single-year drop since 1978. The 2015 figure also marks the lowest overall prison population since 2005. Crime rates have plunged, falling “to levels not seen since the late 1960s.”

But even as the US becomes a much safer country, it still incarcerates its citizens at much higher rates than most any other on earth.  To put things in perspective, our prison archipelago today confines a population similar in size to the city of Houston or the borough of Queens.

At the dawn of mass incarceration in 1980, the US’s already-quite-large prison population was estimated at 329,821. To return to that number, the governments would have to replicate the recent 35,500-prisoner reduction for roughly thirty-four years in a row.  That’s a very long time to wait for the poor communities — particularly but not exclusively brown and black ones — that mass incarceration devastates.

The criminal justice reform movement has stopped losing. But it hasn’t really started to win.

January 11, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Tuesday, January 10, 2017

Charleston Church shooter Dylann Roof sentencing to death by federal jury

As reported in this local article, only "a few hours after he told a crowded courtroom 'I still feel like I had to do it,' a federal jury sentenced Dylann Roof to death for carrying out a cold, calculated massacre inside Charleston's Emanuel AME Church in a bid to spark a race war." Here is more about an unsurprising verdict:

The 12-member panel – three white jurors, nine black – deliberated for a little less than three hours before unanimously deciding that the 22-year-old white supremacist should die for his crimes rather than spend his life in prison without the possibility of parole.

It will be up to the presiding judge to formally impose that sentence, but he is bound by law to follow the jury’s decision. U.S. District Judge Richard Gergel has scheduled the formal sentencing hearing for 9:30 a.m. Wednesday.

Roof, who sat stone-faced and silent through most of his hate crimes trial, betrayed no emotion as the jury’s verdict was read. During his closing argument earlier in the day, he passed on the chance to argue for his life, saying “I’m not sure what good that will do anyway.”

After the jury announced its verdict, Roof stood and asked the judge if he would appoint him new lawyers to help him file a request for a new trial. Gergel told Roof a significant amount has been spent on the current legal team that Roof sidelined for the trial's penalty phase, a team led by noted capital defense lawyer David Bruck. The judge said he would be "strongly disinclined" to bring in new lawyers at this point, but he will listen to any motions Roof wants to make during Wednesday's proceedings.

Earlier in the day, Roof told the jury that prosecutors don't understand him or the meaning of hate in their quest to put him to death for the June 2015 church massacre. “Anyone, including the prosecution, who thinks I am filled with hate has no idea what real hate is,” Roof said, speaking to jurors from a podium about eight feet away from the jury box. “They don’t know anything about hate."

After Assistant U.S. Attorney Jay Richardson delivered a two-hour closing statement, Roof walked to the podium with a single sheet of yellow notebook paper. He appeared to read from it, pausing at times to glance down. His remarks lasted less than five minutes.

January 10, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

AG-nominee Jeff Sessions puts focus on crime in opening statement before confirmation hearing

Via Politico, here is the text of Attorney General nominee Jeff Sessions' full opening statement to the Senate Judiciary Committee, as prepared for delivery.  And here are some excerpts that highlight its crime-fighting tone, as well as some of the effort to thwart certain criticisms already lodged against the nomination:

Protecting the people of this country from crime, and especially from violent crime, is the high calling of the men and women of the Department of Justice. Today, I am afraid, that has become more important than ever.

Since the early 1980s, good policing and prosecutions have been a strong force in reducing crime. Drug use and murders are half what they were in 1980. I am very concerned, however, that the recent jump in the violent crime and murder rates are not anomalies, but the beginning of a dangerous trend that could reverse the hard won gains that have made America a safer and more prosperous place. The latest official FBI statistics show that all crime increased nearly 4 percent from 2014 to 2015 with murders increasing nearly 11 percent — the largest single year increase since 1971. In 2016, there were 4,368 shooting victims in Chicago. In Baltimore, homicides reached the second highest per-capita rate ever.

The country is also in the throes of a heroin epidemic, with overdose deaths more than tripling between 2010 and 2014. Meanwhile, illegal drugs flood across our southern border and into every city and town in the country, bringing violence, addiction, and misery.

We must not lose perspective when discussing these statistics. We must always remember that these crimes are being committed against real people, real victims. It is important that they are kept in the forefront of our minds in these conversations, and to ensure that their rights are always protected.

These trends cannot continue. It is a fundamental civil right to be safe in your home and your community. If I am confirmed, we will systematically prosecute criminals who use guns in committing crimes. As United States Attorney, my office was a national leader in gun prosecutions every year. We will partner with state and local law enforcement to take down drug trafficking cartels and dismantle gangs. We will prosecute those who repeatedly violate our borders. It will be my priority to confront these crises vigorously, effectively, and immediately.

Approximately 90 percent of all law enforcement officers are not federal, but local and state. They are the ones on the front lines. They are better educated, trained and equipped than ever before. They are the ones who we rely on to keep our neighborhoods, and playgrounds, and schools safe. But in the last several years, law enforcement as a whole has been unfairly maligned and blamed for the actions of a few bad actors and for allegations about police that were not true. They believe the political leadership of this country abandoned them. They felt they had become targets. Morale has suffered. And last year, while under intense public criticism, the number of police officers killed in the line of duty increased ten percent over 2015. This is a wake up call. This must not continue.

If we are to be more effective in dealing with rising crime, we will have to rely heavily on local law enforcement to lead the way. To do that, they must know that they are supported. If I am so fortunate as to be confirmed as Attorney General, they can be assured that they will have my support.

As I discussed with many of you in our meetings prior to this hearing, the federal government has an important role to play in this area. We must use the research and expertise of the Department of Justice to help them in developing the most effective and lawful enforcement methods to reduce crime. We must re-establish and strengthen the partnership between federal and local officers to enhance a common and unified effort to reverse the current rising crime trends. I did this as United States Attorney. I worked directly and continuously with state and local law enforcement officials. If confirmed, it will be one of my primary objectives....

In recent years, our law enforcement officers also have been called upon to protect our country from the rising threat of terrorism that has reached our shores. If I am confirmed, protecting the American people from the scourge of radical Islamic terrorism will continue to be a top priority of the Department of Justice. We will work diligently to respond to threats, using all lawful means to keep the American people safe from our nation’s enemies. Partnerships will also be vital to achieving much more effective enforcement against cyber threats, and the Department of Justice clearly has a lead role to play in that essential effort. We must honestly assess our vulnerabilities and have a clear plan for defense, as well as offense, when it comes to America’s cybersecurity.

The Department of Justice must never falter in its obligation to protect the civil rights of every American, particularly those who are most vulnerable. A special priority for me in this regard will be aggressive enforcement of our laws to ensure access to the ballot for every eligible American voter, without hindrance or discrimination, and to ensure the integrity of the electoral process....

You can be absolutely sure that I understand the immense responsibility I would have. I am not naïve. I know the threat that our rising crime and addiction rates pose to the health and safety of our country. I know the threat of terrorism. I deeply understand the history of civil rights and the horrendous impact that relentless and systemic discrimination and the denial of voting rights has had on our African-American brothers and sisters. I have witnessed it. I understand the demands for justice and fairness made by the LGBT community. I understand the lifelong scars born by women who are victims of assault and abuse.

A few prior related posts on AG-nominee Sessions:

January 10, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (7)

Monday, January 09, 2017

"In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes"

The title of this post is the title of this new and timely short piece authored by Scott Meisler now available via SSRN that ought to be of special interest to sentencing fans.  Here is the abstract:

Recent press reports indicate that federal appellate judges William Pryor and Diane Sykes are among the finalists for the Supreme Court vacancy created by Justice Scalia’s death. But just as Justice Scalia and fellow conservative Justice Alito often differed on questions of criminal and habeas corpus procedure, so too have Judges Pryor and Sykes.  This short essay analyzes four legal issues on which the two judges have recently reached contrary results or demonstrated different approaches — including two legal issues arising from Justice Scalia’s last major criminal procedure opinion, Johnson v. United States.  The essay concludes that, though the decisions analyzed here represent only a small sample, they suggest that Judge Sykes’s approach to criminal procedure questions would more closely resemble Justice Scalia’s, while Judge Pryor’s would be more similar to that of Justice Alito.

January 9, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)

SCOTUS issues per curiam opinion strengthening claim of qualified immunity after police shootout

The Supreme Court's first big order list of 2017 had no cert grants, which I think provides still more evidence that the Justices are disinclined to take up much of note until they get a replacement for Justice Scalia.  But the court found one case they could resolve through a summary opinion, White v. Pauly, No. 16–67 (S. Ct. Jan. 9, 2017) (available here). In this case, the Supreme Court vacating a split Tenth Circuit ruling that had denied qualified immunity to a New Mexico police officer after deadly shooting during a confrontation with armed suspects. Here is how the opinion starts and a key passage:

This case addresses the situation of an officer who — having arrived late at an ongoing police action and having witnessed shots being fired by one of several individuals in a house surrounded by other officers — shoots and kills an armed occupant of the house without first giving a warning....

This is not a case where it is obvious that there was a violation of clearly established law under Garner and Graham. Of note, the majority did not conclude that White’s conduct — such as his failure to shout a warning — constituted a run-of-the-mill Fourth Amendment violation. Indeed, it recognized that “this case presents a unique set of facts and circumstances” in light of White’s late arrival on the scene.  814 F.3d, at 1077.  This alone should have been an important indication to the majority that White’s conduct did not violate a “clearly established” right.  Clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action in circumstances like this from assuming that proper procedures, such as officer identification, have already been followed.  No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here.

Th per curiam opinion closes with a lot of nuance as to what the Justices were not deciding, and a concurring opinion by Justice Ginsburg highlights that point.

January 9, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Will new Trump Justice Department seek death penalty for Fort Lauderdale airport mass murderer given apparent mental illness?

The question in the title of this post emerges from the news of federal charges filed and a planned court appearance for Esteban Santiago.  This Reuters article, headlined "Florida airport shooting suspect due in court Monday, could face death penalty," provides the details:

The 26-year-old Iraq war veteran accused of killing five people at a busy Florida airport in the latest U.S. gun rampage was due to appear in a federal court on Monday on charges that could bring him the death penalty.

Esteban Santiago, who had a history of erratic behavior, has admitted to investigators that he planned Friday's attack in Fort Lauderdale and bought a one-way ticket from his home in Alaska to carry it out, according to a criminal complaint.

Authorities say they have not ruled out terrorism as a motive and that they are investigating whether mental illness played a role.  In November, Santiago went to a Federal Bureau of Investigation office in Anchorage and told agents he believed U.S. spies were controlling his mind.

Bond for Santiago, who is being held at the Broward County Jail in Fort Lauderdale, may be set at the hearing scheduled for 11 a.m. EST on Monday near Fort Lauderdale, and he would be assigned a public defender if he cannot afford his own lawyer.  He could face the death penalty if convicted on charges of carrying out violence at an airport, using a firearm during a violent act, and killing with a firearm.  But it may be months before prosecutors reveal what lies in Santiago's future.

"They've then got two weeks to indict him, and then they've got to go through the whole death penalty review," said former federal prosecutor David Weinstein, who is now a partner with Miami law firm Clarke Silverglate.  Executions have been on hold in Florida since the U.S. Supreme Court struck down the state's death penalty laws a year ago.  The Florida Supreme Court overturned a rewritten version in October....

Information surfaced over the weekend that police in Alaska took a handgun from Santiago in November after he told FBI agents there his mind was being controlled by a U.S. intelligence agency.  They returned it to him about a month later after a medical evaluation found he was not mentally ill....

Santiago served from 2007 to 2016 in the Puerto Rico and Alaska national guards, including a deployment to Iraq from 2010 to 2011, according to the Pentagon. Relatives have said he acted erratically since returning from Iraq.

The on-going federal capital trial of the Charleston church mass murderer Dylann Roof has prompted a number of folks, especially those in the abolitionist community, to be talking about mental illness and the inappropriateness of sentencing a mentally disturbed individual to death.  Those discussions and debates would surely reach another level if (dare I say when) the incoming Trump Administration and its new Attorney General decide to pursue capital charges against Esteban Santiago.

January 9, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, January 08, 2017

SCOTUS back in action with booking fee process as first notable criminal case of 2017

The Supreme Court returns to action tomorrow morning, and the Court's January sitting only has a couple cases that should be of serious interest to criminal justice fans.  But the very first case slated for the very first 2017 oral argument is one of procedural note, Nelson v. Colorado.  The folks over at SCOTUSblog have provided this preview by Steve Vladeck, which starts and ends this way:

Every jurisdiction in the United States requires at least some criminal defendants to make certain payments to the government tied to their convictions.  And if a defendant’s conviction is subsequently vacated — whether on appeal or through collateral post-conviction proceedings — virtually every jurisdiction directly returns those funds to the acquitted individual.  Colorado does not.  Instead, according to the Colorado Supreme Court, criminal defendants seeking a return of funds paid in conjunction with a later-vacated conviction must bring a separate civil suit under a Colorado statute — the Exoneration Act — in which, among other burdens, plaintiffs apparently have to prove their actual innocence by clear and convincing evidence in order to recover.  The very first argument the justices will hear in 2017 — Nelson v. Colorado — raises the question whether this seemingly unique scheme violates the due process clause of the 14th Amendment....

Although it is often difficult to predict from an oral argument how the justices are likely to rule, the sharp distinctions in how the parties have framed the issue in this case may allow for more than the usual tea-leaf reading at next Monday’s argument.  The more the questioning focuses on distinctions between the different types of payments made by Nelson and Madden, and the state’s interest in collecting and preserving those funds, the more it may bode well for Colorado.  But the more the justices’ attention appears drawn to how poor a fit the Exoneration Act actually is for defendants like these, the more likely the court will be to reverse.  After all, as Nelson and Madden conclude in their reply brief, Colorado appears to be the first and only jurisdiction in the United States “to require successful appellants to prove their innocence by any standard to get their money back when their convictions are reversed.”  If that fact seems to trouble enough of the justices during their first argument of the new year, then a reversal may well be in the offing.

January 8, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Why I think at the hearings for AG, Senators should try to kill... question with conservative kindness

Sessions_Attorney_General_59616.jpg-7a740-3355This new Washington Post article, headlined "Jeff Sessions should have been a tough sell in the Senate, but he’s too nice," details some reasons behind my thinking that it is unwise for advocates of criminal justice reform to adopt an overly aggressive opposition posture to Prez-Elect Donald Trump's nominee for Attorney General, Senator Jeff Sessions.  Here are excerpts from the piece, with a few lines emphasized for commentary to follow:

He is one of the more well-liked members of the Senate, a place that still retains elements of one of the world’s most exclusive clubs.  He is genial, respectful and patient toward colleagues and staff.  And that has given fellow Republicans and even some Democrats reason not to scrutinize the more unsavory allegations of his political history.

Take Sen. Susan Collins, a moderate Republican from Maine who, under other circumstances, might be a target for Democrats to peel off in hopes of defeating Sessions’s nomination. Instead, she’s his lead spokeswoman....  “He’s a decent individual with a strong commitment to the rule of law.  He’s a leader of integrity,” Collins said in an interview, dismissing attacks from liberal activists about his conservative views and his actions as a young prosecutor. “I think the attacks against him are not well-founded and are unfair.”...

“I genuinely like him,” said Sen. Christopher A. Coons (D-Del.), a member of the Judiciary Committee.  Coons still might vote against Sessions because of the “stark differences” between the two on policy, but they are friends....

[M]ost senators tend to see Sessions in the same way Collins does — as a friendly man who never broke his word to them.  Many have prayed with him and traveled with him on official overseas trips.  Almost no one wants to review the original allegations against him during his 1986 nomination; for the most part, they don’t think that he is the racist that some have painted — at least not anymore.  “I don’t know the dynamics of what happened then, but I can speak to Jeff’s character in the 20 years that I’ve known him,” Collins said....

One senator who has wanted to focus more on Sessions’s past on race is Sen. Tim Scott (R-S.C.), the chamber’s only black Republican. “I think judging a person on 30-year-old history is questionable. Eliminating or exempting 30-year-old history is probably not wise as well,” Scott said. “So, making sure that you understand what it actually was and who he is, has been an important part of what I’ve tried to do.”

Scott hosted Sessions in mid-December in North Charleston with activists who peppered him with questions about federal prosecution of a police officer who fatally shot a black man in the back. “The attorney general’s position has more impact on communities of color than perhaps any other nominee,” Scott said, adding that he was still considering the nomination.

By and large, senators want to focus on other topics. And there’s plenty there to discuss, from how Sessions would handle the deportation of illegal immigrants to allegations that in 1995, while serving as state attorney general, he supported the use of chain gangs for prisoner work.

Coons suggested that Sessions had so many staunchly conservative positions in “the recent past” that there was little need to relitigate the 1980s. He spent an hour with Sessions on Thursday talking about legal philosophy. Coons and Sessions have spent the past six years talking at the Senate’s weekly Bible study and working out together in the gym.

The lines I have stressed here highlights my belief that everyone interested in criminal justice reform ought to be looking toward the Sessions' hearing as a high-profile opportunity to make in a high-profile and high-impact way the strong conservative case for criminal justice reform (and especially federal sentencing reform).  Particularly because it seems all but certain that Sessions will be confirmed as Attorney General, I hope that some folks inclined to oppose Sessions appreciate that it could be much more productive at this week's hearings to try to co-opt Sessions from the right rather than attack him from the left.

For the record, and as highlighted by this recent helpful Brennan Center analysis, I fully understand how Senator Sessions' record in the criminal justice arena makes so many advocates so concerned and so eager to fight.  But these advocates should remember that, in just the past few years, a number of tough-on-crime GOP stalwarts like Senator Charles Grassley and Representative Jim Sensenbrenner have become vocal advocates for federal sentencing reform.  Indeed, a large number of prominent GOP Senators on and off the Judiciary Committee have been vocal supporters of federal sentencing reform in some form — I am thinking here of Senator Cornyn, Cruz, Lee, Paul and Tillis among others — and these folks seem to view (rightly, in my opinion) sentencing reform as conservative cause.

Of particular importance in this context, especially given the passages stressed above, are what I might call the "equal justice" and "religious redemption" arguments for federal reforms. As noted in this prior post, Senator Sessions was an early and prominent voice calling for a reduction in the crack/powder 100-1 federal sentencing disparity. This suggests Sessions might in a hearing voice support for sentencing reforms intended to reduce unequal application of the harshest mandatory minimum sentencing terms. And all the references to prayer above leads me to think Sessions also could and would be moved by religious leaders talking about the importance of second chances (which, I surmise, help moved Senator Grassley and also fits with the huge and too-often-overlooked corrections part of the SRCA).

Even more fundamentally, though Senator Sessions has roots and a history supporting a big and tough federal criminal justice apparatus, lots of his GOP colleagues are very skeptical of federal prosecutorial powers, and for good reason.  Notably, Senator Sessions has himself expressed concerns on the Senate floor about federal prosecutors "encroach[ing] upon the historic powers of our State and local law enforcement to enforce the law in their jurisdiction."  Especially in the arena of marijuana reform and perhaps business crimes more generally, I also think Sessions could and should be questioned about the conservative case for keeping the federal Justice Department out of what are generally local matters.

In the end, this all may be wishful thinking on my part, a desire to turn a glass more than half-empty upside-down so that it looks close to half full. But given all the remarkable and important criminal justice reform work done and supported robustly in recent years by self-described conservatives, I am strongly disinclined to view Senator Sessions as a Darth-Vader-like character until he actually starts ordering the Justice Department to begin work on a Death Star.

A few prior related posts on the AG-nominee Sessions:

January 8, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (5)

"Mending the Federal Sentencing Guidelines Approach to Consideration of Juvenile Status"

The title of this post is the title of this notable new Harvard Law Review note. It gets started this way:

In a series of recent cases, the Supreme Court has reaffirmed the profound significance of a juvenile offender’s age in sentencing, seemingly rendering youth status a mandatory sentencing consideration as a constitutional matter — in at least some cases — and under the statutory sentencing directive.  Still, as a matter of policy, the Federal Sentencing Guidelines (Guidelines) — the required starting point for sentencing courts in federal cases and the benchmark for assessing the reasonableness of a sentence for appellate courts — discourage consideration of an offender’s youth and related circumstances in determining whether to depart from the recommended statutory sentencing range.  Though after United States v. Booker the Guidelines have been advisory only, the Court has recognized that even advisory Guidelines can, at times, exert an impermissible anchoring effect on sentencing courts.

This Note argues that Congress and the United States Sentencing Commission (Commission) should take seriously both the letter and spirit of the Court’s recent juveniles-are-different cases, which favor a return to a rehabilitative approach to young offenders.  Congress should address apparent conflicts between its statutory sentencing schemes and these recent cases by expanding the range of sentencing options for juvenile offenders convicted in federal court, and the Commission should promulgate new rules regarding calculation of sentences for juveniles convicted as adults in federal court.  Further, until such rules are promulgated, this Note contends that appellate courts should hesitate to presume reasonable within-Guideline sentences for juvenile offenders absent evidence that a sentencing court has considered age.

This Note proceeds in four parts.  Part I provides a brief history of the Guidelines, from development through the Court’s attempts to clarify their place post Booker. Part II describes the history of the treatment of juvenile offenders in federal courts and details the Court’s recent juveniles-are-different sentencing jurisprudence.  Part III argues that, for various reasons of law and policy, both Congress and the Commission should offer new guidance on how courts should approach the process of sentencing juvenile offenders convicted as adults.  Finally, Part IV recommends statutory changes and amendments to the Guidelines.

January 8, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, January 06, 2017

Seventh Circuit panel affirms above-guideline drug sentence ... with Judge Posner suggesting USSC involvement would be better than a sentencing "hunch"

An otherwise little and unremarkable sentencing appeal became blog-worthy because of Judge Posner's provocative opinion for the court in US v. Gibbs, No. 16-1747 (7th Cir. Jan. 6, 2017) (available here). Here is some background and the blog-notable aspect of Judge Posner's opinion:

The defendant pleaded guilty to possessing cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Because of the quantity of the cocaine that he possessed and his history of drug and other criminal offenses, his guideline sentencing range was 151 to 188 months and his statutory maximum 240 months. The government recommended a 216‐month sentence ... and that was the sentence that the district judge imposed....

The judge explained that he was imposing a sentence significantly higher than the top of the defendant’s guideline range on the basis of the “[18 U.S.C. §] 3553(a) [sentencing] factors.”  He called the defendant “a poster child for being a career offender,” and told him “unfortunately you may be one of those people that will never be able to conform to be a law‐abiding person.”....

Neither the government, in recommending a 216‐month sentence, nor the district judge, in imposing it, attempted a sophisticated analysis of the likely consequences for the defendant, his family, and society (primarily the persons to whom he sold illegal drugs) of adding roughly two years to the sentence he would have been given had the judge stopped at the top of the guideline range.  Judging from the government’s brief and the judge’s sentencing statement, both the prosecution and the judge based the 216‐month sentence (proposed by the government, imposed by the judge) on a hunch.  As the prosecutors as well as the judge are highly experienced, their hunches are likely often to be reliable. And because federal prosecutors are free to suggest any sentence within the statutory range, and a federal district judge has broad latitude in picking the sentence to impose within that range, and because the briefs and argument of defense counsel in this case bordered on the perfunctory ... the sentence must be affirmed.

Some consideration, however, should be given to the possibility of basing a prison sentence — at least a very long one (and an 18‐year sentence is very long) — on something other than a hunch.  The work of the U.S. Sentencing Commission in formulating sentencing guidelines provides a clue to a possible alternative. The sentencing judge, instead of ranging at large, with little guidance, over the wide space between the statutory minimum sentence for the defendant’s crime or crimes and the statutory maximum, might consider asking the Sentencing Commission to evaluate the appropriateness in particular cases of all the possible sentencing points in the statutory sentencing range, including points that fall outside the guideline sentencing range.  In a case like the present one the Sentencing Commission might advise the prosecutors, defense counsel, and the judge why it had fixed the guideline range where it did and how disapproving it would be of sentences below or above that range.  The Commission might for example take a close look at the government’s suggested 216‐month sentence in this case and the arguments the government gives for it, and conclude that maybe it’s a proper sentence given the particular facts of the case even though it lies outside the guideline range.  The defense proposed a sentence of only 10 years, which would be about two and a half years below the sentencing guideline; and again, the Commission might agree in the special circumstances of this case that that was a plausible alternative to a sentence in the guideline range — or might explain why it was not.  Judges wouldn’t have to ask the Commission for its input, or follow its recommendations, but they might find it a valuable resource.

The Judge Posner's opinion nominally represents the opinion of the Seventh Circuit, the other two judges on the panel (Judges Kanne and Sykes) wrote separate concurring opinions (and Judge Sykes opinion is only concurring in the judgment). Judge Kanne does join Judge Posner's opinion, but his separate opinion captures some aspects of my reactions to what Judge Posner suggests:

I write further to add that although Judge Posner has envisioned an interesting method to arrive at an appropriate sentence in individual cases, it is my view that such a unique system would be fundamentally unworkable in practice and contrary to the statutory provisions enacted by Congress and approved by the Supreme Court.

January 6, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

An optimistic accounting of many areas for bipartisan federal criminal justice reform ... and good lines of inquiry for AG nominee Jeff Sessions

The week brought this extended commentary by Mark Holden at The Hill under the headline "Criminal justice reform is ripe for bipartisan achievement." I recommend the piece in full, and here are highlights of the reforms urged (with Holden's accounting of "reason it could pass" left out so readers will be encouraged to click through):

Criminal justice reform has been one of the few policy areas where Republicans and Democrats have forged bipartisan consensus.  They have come close to passing reform the past two years, and now it’s up to GOP lawmakers to pick up where they left off. Leaders as diverse as Sens. Cory Booker (D-N.J.) and Mike Lee (R-Utah) agree that the current system is broken....

That’s why it’s critical that leaders in Congress take up criminal justice reform. If they focus on six key areas of reform, there’s a real possibility that legislation could pass in both the House and Senate, even with the Senate’s 60-vote threshold, a bar not easily achieved on other issues.

Here are the six areas of reform — and the reasons they have a viable path to becoming law.

First, we need to reform the grand jury process and rein in prosecutorial overreach. As Judge Kozinski has advocated, lawmakers should require open file discovery, so prosecutors hand over all evidence favorable to an accused person, and also establish truly independent prosecutorial review units to investigate abuses....

Second, we must protect every citizens’ Sixth Amendment rights.  When it comes to federal cases, Congress should ensure that all individuals — regardless of income level – have an adequate chance to retain counsel before they appear in court.  It should also explore the model that some states have moved to, which allows defendants to choose a private lawyer from a list of options, rather than being appointed a lawyer who may not offer a competent defense....

Third, the punishment must fit the crime. Congress should reform mandatory minimums that don’t make sense and increase the use of “safety valves,” which allow judges to use their discretion for non-violent offenses if the offender meets certain requirements. These reforms are particularly important for low-level and non-violent offenders (mostly involving drug crimes), who too often languish in prison for years or even decades at a time at great cost to their families and our society at large.....

Fourth, prisons should leave individuals better off than when they came in. Prison rehabilitation programs have proven to reduce the chance of re-offense and save taxpayer dollars....

Fifth, Congress should give worthy individuals a chance to rejoin society and find fulfillment in their lives.  Lawmakers could start by “banning the box” from federal employment applications so that individuals with a record can be considered for government jobs.  Congress, however, should not mandate that companies “ban the box,” but should allow them to voluntarily do so.  Congress should also clear the record of qualifying youth and non-violent federal offenders; limit solitary confinement for juveniles; and establish effective rehab, educational, and vocational programs so that every individual leaves prison a better person than when they came....

Finally, Congress needs to dramatically scale back the federal criminal code and ensure that all criminal laws have adequate criminal intent, also known as “mens rea.”  The criminal code is a stunning 27,000 pages and comprises an estimated 4,500-6,000 criminal laws — and that doesn’t even include the thousands of additional federal regulations that impose criminal punishments. Many penalize people who had no idea they were committing a crime — missing a basic historical requirement that once existed in the criminal law to protect people from being unfairly prosecuted....

Any one of these reforms would improve our federal justice system — and have a profound effect on our society.  Taken together, they will make communities safer, support our brave law enforcement officers, save taxpayer dollars, and empower individuals in need of a second chance.  That’s precisely why Republicans and Democrats alike will have a difficult time answering to their constituents if they resist such reforms.  Doing so would be a clear political move that overlooks the millions of Americans who would be better off as a result of this bipartisan achievement.

If President-elect Trump and the GOP Congress take up criminal justice reform, it will be a sure sign that they are willing to look beyond party lines in order to improve people’s lives.  That would be good start to putting individuals’ safety and wellbeing ahead of partisan politics.

As the title of this post suggests, I think this piece's accounting of six areas in need of reform would provide a fantastic guide for questions for Senator Jeff Sessions during his hearings to serve as Attorney General. These questions can be softball (e.g., do you believe prison rehabilitation programs can be valuable?) or tough (e.g., do you think there should be more means for federal inmates to earn sentence reduction for participating in prison rehabilitation programs). And I welcome readers to use the comment to make more suggestions for additional soft or tough questions on these or other fronts.

Critically, and as I hope to outline more fully in a post over the weekend, I feel very strongly that those Senators who support federal criminal justice reforms ought to use the Sessions' confirmation hearing to do much more that just simply attack the Senator for long-ago acts or statements claimed to be evidence of racism or insensitivity.  Instead, by crafting astute questions concerning specific area of the federal criminal justice system in need of reform, members of the Judiciary Committee could and should be able to get Sessions to express support for — or at least a lack of opposition to — many of the bipartisan reforms discussed above and widely embraced inside the Beltway in recent years.

January 6, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Thursday, January 05, 2017

Marijuana reform and clemency conversations at the state and federal level

Two new lengthy pieces combining news and commentary on the clemency and marijuana fronts further reinforces my view that marijuana reform is a form of sentencing reform.  Here are the extended headlines and links to these two interesting reads:

January 5, 2017 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Prez Obama produces lengthy Harvard Law Review article titled "The President’s Role in Advancing Criminal Justice Reform"

I am intrigued and surprised (and concerned that I will soon be very aggravated) by this lengthy new Harvard Law Review article authored by Barack Obama.  In style (because the article runs 50+ pages with 300+ footnotes), the article hints that Prez Obama is interested in going back to being a law professor after he finishes his current gig.  In substance, the article's introduction provides this overview: 

Part I details the current criminal justice landscape and emphasizes the urgent need for reform.  It would be a tragic mistake to treat criminal justice reform as an agenda limited to certain communities.  All Americans have an interest in living in safe and vibrant neighborhoods, in raising their children in a country of equal treatment and second chances, and in entrusting their liberty to a justice system that remains true to our highest ideals.  We simply cannot afford to spend $80 billion annually on incarceration, to write off the seventy million Americans — that’s almost one in three adults — with some form of criminal record, to release 600,000 inmates each year without a better program to reintegrate them into society, or to ignore the humanity of 2.2 million men and women currently in U.S. jails and prisons and over 11 million men and women moving in and out of U.S. jails every year.  In addition, we cannot deny the legacy of racism that continues to drive inequality in how the justice system is experienced by so many Americans.

Part II shows how the President can drive significant reform at the federal level.  Working with Congress, my Administration helped secure bipartisan sentencing reform legislation reducing the crack-topowder-cocaine disparity.  As an executive branch, we’ve been able to make important changes to federal charging policies and practices, the administration of federal prisons, and federal policies relating to reentry.  And through the presidential pardon power, I have commuted the sentences of more than 1000 prisoners.  Even though there are important structural and prudential constraints on how the President can directly influence criminal enforcement, these changes illustrate that presidential administrations can and do shape the direction of the federal criminal justice system in lasting and profound ways.

Part III details the approaches that Presidents can take to promote change at the state and local level, recognizing that the state and local justice systems tend to have a far broader and more pervasive impact on the lives of most Americans than does the federal justice system.  While the President and the executive branch play a less direct role in these systems, there are still opportunities — as my Administration’s work demonstrates — to advance reform through a combination of federal-local partnerships, the promulgation of best practices, enforcement, federal grant programs, and assembling reform-minded jurisdictions struggling with similar challenges.

Part IV highlights some of the work that remains, focusing on reforms that are supported by broad consensus and could be completed in the near term.  These include passing bipartisan criminal justice reform legislation in Congress, adopting commonsense measures to keep firearms out of the hands of those who are a threat to others or themselves, finding better ways to address the tragic opioid epidemic in this country, implementing critical reforms to forensic science, improving criminal justice data, and using technology to enhance trust in and the effectiveness of law enforcement.

I fear I will be aggravated by this article because it will confirm that Prez Obama (or his staff who helped author this article) truly understands the need to major criminal justice reforms and yet so relatively little got achieved on this front during Prez Obama's eight yesr in office. Also, I know I am already going to be troubled by what is not said in this article because a quick word search reveals that the word "marijuana" is not mentioned once even though state-level marijuana reform is by far the biggest criminal justice reform story of the Obama era (which, to the Obama Administration's credit, was in part fueled by his Justice Department's express hands off policy).

January 5, 2017 in Clemency and Pardons, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10)

Wednesday, January 04, 2017

Louisiana public defenders lacking resources needed to adequately prepare for Miller resentencings in old juve LWOP cases

This interesting local article highlights the economic challenges posed for some local courts and lawyers when now having to implement retroactively the Supreme Court's Miller ruling precluding mandatory LWOP sentences for juvenile murderers.  The article is headlined "'Unfunded mandate' of individualized sentencing hearings for some juveniles causing headaches for public defenders," and here are excerpts:

A 2012 U.S. Supreme Court decision ruled out laws mandating life without parole for juveniles as unconstitutional, and a subsequent decision last year made that ruling retroactive. Now, those juveniles are required to get what’s called “individualized sentencing hearings” before such a harsh sentence can be handed down, said Carol Kolinchak, a compliance officer for the Louisiana Public Defender Board.

And those hearings take resources. “You have to investigate and develop evidence (about) the youth and the circumstances surrounding the crime,” Kolinchak told [Judge Arthur] Hunter, adding that it is the defense’s “ethical obligation” to make sure each juvenile offender gets a proper investigation into their backgrounds prior to their hearing.

But, she added, the mandate isn’t cheap, and it’s also unfunded. At a cost of $60,000 to $75,000 a client, both [Orleans Parish Chief Public Defender Derwyn] Bunton and State Public Defender Jay Dixon said they were at a loss for how to properly prepare for each client’s sentencing hearing.

According to Kolinchak, there are nearly 300 juveniles eligible for such individualized hearings throughout the state. “The question in Louisiana is the same as it is nationally, which is that it has really been an unfunded mandate,” she said. “It places burdens on defense counsel with no discussion of funding.”

The issue came up in Hunter’s courtroom Tuesday in the case of Joseph Morgan, a defendant convicted in 2015 of second-degree murder in the death of Gervais "Gee" Nicholas, a teenager gunned down in 2008 outside the Chat Club at Tulane Avenue and South Lopez Street. Morgan was 16 at the time of the shooting, but prosecutors are nevertheless seeking life without parole.

Defense attorney Tom Shlosman, who is representing Morgan pro bono, told the judge he doesn't have the resources for the elaborate proceedings now required in Morgan's case. The other officials who testified before Hunter were brought in to help bolster the broader case that more money needs to be set aside statewide to handle these types of defendants....

In New Orleans, the question is how to proceed with about 72 cases that now qualify for a so-called “Miller hearing,” Kolinchak said. On Tuesday, both Bunton and Dixon said they didn’t anticipate being able to pay for those hearings, at least for indigent clients, anytime soon, because there’s no money available to properly investigate possible mitigating circumstances for those clients.

Dixon said the state public defender’s budget has been “stagnant” at about $33 million for the past several years. Moreover, he said, the threat of a 5 percent cut to his budget looms ahead, a move he said would be “devastating” for both death penalty cases and juvenile cases like Morgan’s. That’s because Dixon's office is required to distribute about 65 percent of its budget to district defenders' offices throughout the parishes, and so the cuts would have to come from the more complex pool of cases that his office contracts out to other law firms.

Bunton said he has to stretch an $8 million budget to cover nearly 22,000 cases a year — a situation that he said leaves him no room for taking on new work like individualized sentencing hearings for indigent juveniles....

“We don’t have an answer. This is the kind of thing that funding or lack of funding creates,” Dixon said. “You’re talking about basically a juggling act with a lack of funds. And we’re both in that trick box. We do not have an answer for that.”

January 4, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Florida Supreme Court adds to the mess that is the current Florida death penalty limbo

These three headlines spotlight the remarkable (and still unclear) story surrounding an important death penalty ruling by the Florida Supreme Court which was released and then withdrawn today:

"Typo upends Florida Supreme Court’s death penalty ruling"

"Florida's High Court Takes Puzzling Turn on Death Penalty"

"Florida Supreme Court: Prosecutors can't seek death penalty - or can they?"

Here are the basics from the first of these linked reports:

Just hours after declaring prosecutors could not seek death sentences under existing state law, the Florida Supreme Court on Wednesday rescinded the order, an uncommon move that casts fresh uncertainty on the state’s death penalty.

The reason: A typo.

In a 5-2 ruling Wednesday morning, the court rejected Attorney General Pam Bondi’s request to let prosecutors seek the death penalty as long as juries voted unanimously. The court threw out the state’s revamped death sentencing law in October because it required only a 10-2 super majority of the jury to put someone to death.

Then at 1 p.m., the Supreme Court rescinded the order, saying it was “prematurely issued,” and deleted it from the court’s website. The Wednesday morning ruling was vacated because of a “clerical error,” said Craig Waters, a spokesman for the court.

Makes me think of the famous words of one of my favorite philosophers.

January 4, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Why Dylann Roof Has a Right to the Death Penalty" ... OR "Why Dylann Roof Representing Himself Is A Constitutional Tragedy"

The title of this post is the headline of this effective and timely new NBC News commentary authored by Andrew Cohen.  Here are excerpts:

Dylann Roof has a constitutional right not to try to spare his own life....

In the end, despite the drama of a closed hearing in the middle of a capital trial, it likely wasn't a close call as a matter of law to allow Roof to continue to represent himself.  The standard for "competency" in these circumstances is low, on purpose, to give defendants the chance to control their own fates.  Roof has consistently shown he understands the nature of the proceedings against him.  The truth is that Roof's decision not to present mitigating evidence seems entirely consistent with his racist beliefs and with his evident antipathy toward psychiatry and psychology.  He wrote in the past that he is "morally opposed to psychology," calling it a "Jewish invention."

Roof also appears to share the mentality of other notable murderers who for one reason or another eschewed a defense their lawyers would have chosen for them. For example, Theodore Kaczynski, the Unabomber, rejected his attorneys' plans for an insanity defense on his behalf before accepting a plea deal that spared him the death penalty.  Oklahoma City bomber Timothy McVeigh gave up the rest of his appeals following his capital conviction and opted for an expedited execution, which took place at the federal death chamber in Terre Haute, Indiana, on June 11, 2001. The Beltway Sniper, John Allen Muhammad, also sparred with his own lawyers in Virginia before he was convicted and sentenced to death.

For all the hand-wringing over the constitutionality (and morality) of self-representation in a capital case, for all the arguments that every capital defendant should always present every non-frivolous defense at trial, the truth is that Roof has a constitutional right not to present a defense, to choose to increase the likelihood he'll get the death penalty instead of a life sentence without the possibility of parole.

It is not necessarily a sign of mental illness, or mental instability, or mental incompetence, to take responsibility for one's murderous actions rather than blame them, in some fashion, on some sort of mental disease or defect. Some killers, like McVeigh, saw it as one final act of control over their lives. This may be why Roof on Wednesday in his first direct interaction with jurors chose not to beg for his life but rather to tell the panel: "There is nothing wrong with me psychologically."

Nor is it necessarily a sign of mental incompetency to chose to want to die sooner, rather than later, after spending years in solitary confinement in a federal prison — which is where Roof will be headed no matter what his jury decides. If he doesn't want to save himself, in other words, or if he doesn't want the world ever to perceive him as having been mentally ill when he killed those innocent people inside that church, there is nothing his lawyers can do to save him so long as he's judged competent.

Finally, a point that's been under-reported these past few days: Just because Roof won't put on any mitigating evidence doesn't guarantee he'll get the death penalty. All it would take for the jury to preclude a capital sentence for Roof is for one juror to decide that consigning the 22-year-old defendant to 50 or 60 or 70 years in ADX-Florence, the federal prison in Colorado that Roof soon will call home, is a punishment worse than a death penalty. That, too, is not an unreasonable position to take.

UPDATE: Not more than an hour after I posted the Andrew Cohen commentary above, I learned of this new Huffington Post commentary by lawprof Scott Sundby which has the headline I have added to the title of this post.  Here are this piece's final two paragraphs:

The Supreme Court has justified the current death penalty regime on the premise that the jury will act as the conscience of the community. Jurors can only carry out this sacred function, however, if they hear all of the evidence, both for and against imposing a death sentence. Jurors often feel betrayed in cases when they later learn that a defense lawyer’s ineffectiveness meant they did not hear compelling evidence about a defendant’s mental illness or abusive childhood. And well they should. The justice system asked them to make a profoundly difficult moral and spiritual decision and then failed to give them the information that they needed to carry out their mandate.

In Roof’s case, the court may believe that its ruling furthers certain values, but it has missed a far more important constitutional principle: a death sentence should never be imposed unless we have complete confidence that the jury’s decision is a reliable and knowing one based on all of the facts. With Dylann Roof representing himself, that outcome is simply impossible. We owe it to the jurors and to ourselves as the society for whom the jurors speak that they hear all about Roof’s life before we ask them whether he should be sentenced to death.

January 4, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

GOP Senate Judiciary Chair Chuck Grassley says federal sentencing reform a priority after Trump nominations completed

This lengthy new Politico article, headlined in full "Senators plan to revive sentencing reform push: Senate Judiciary Chairman Chuck Grassley says he's not done yet pressing a cause with broad bipartisan support," brings some welcome new year good news for advocates of federal sentencing reform.  Here are the details, with a couple of lines emphasized for subsequent commentary:

Criminal justice reform — the great bipartisan hope of 2016 that ended in disappointment — may not be dead just yet. Senate Judiciary Committee Chuck Grassley (R-Iowa) plans to take up a bill to revamp U.S. sentencing laws and reform prisons soon after his panel clears the high-profile nominations from Donald Trump. A similar measure passed his committee overwhelmingly last year before stalling out in the face of opposition from law-and-order conservatives.

But Grassley told POLITICO he will soon try again. "The committee will begin the year working through the attorney general and Supreme Court nominees, but criminal justice reform will be one of the legislative bills I plan to bring up early on,” he said in a statement. “It cleared the committee with a broad bipartisan majority in the last Congress, and I don't expect that to change.”

The chief authors of the criminal justice overhaul, led by Grassley and Senate Minority Whip Dick Durbin (D-Ill.), will continue to try to drum up more support among senators, while “educating” the Trump administration about their bill’s merits, Grassley said.  The legislation isn’t expected to be substantially different than last year’s version.

Criminal justice reform could’ve been one of the bright, bipartisan spots in an otherwise contentious election year. But despite support from President Barack Obama, powerful congressional Republicans, and a sprawling network of groups from the left and right, the legislation never made it to the floor.  That was partly due to the determined efforts of law-and-order conservatives to steamroll it — and there's little to suggest that if the legislation heads to the Senate floor, that dynamic would change.

Nevertheless, Durbin approached Grassley after the election and pressed the chairman about whether the duo should make another run at it this year, Durbin recalled in a recent phone interview. Grassley was in. And once the chairman tees up the bill this year in his committee, its supporters expect a bipartisan vote similar to the 15-5 tally it received in October 2015.

Durbin and Grassley’s aides have been discussing a strategy to advance the bill in 2017. Aiding their cause is the fact that three opponents — GOP Sens. David Vitter of Louisiana, Jeff Sessions of Alabama and David Perdue of Georgia — are leaving the committee this year, stirring hope that the vote count in favor of the measure could be higher. Vitter no longer serves in the Senate, Sessions is expected to be confirmed as attorney general and Perdue is shifting committees. Replacing them on the influential panel are Sens. Ben Sasse of Nebraska, Mike Crapo of Idaho and John Kennedy of Louisiana. “I think the committee will be just as strong. It may be stronger,” Durbin said. “When you have people like Grassley and Durbin and [Senate Majority Whip John] Cornyn and [Sen. Patrick] Leahy for goodness sakes … it ought to be enough for us.”...

Senate Majority Leader Mitch McConnell (R-Ky.) is rarely eager to take up policy fights that divide his conference — and Democrats point a finger at him as a prime reason why criminal justice reform stalled last year. “The problem we ran into is Sen. McConnell, who didn’t want to call the bill to the floor. He was concerned about the impact on the election and also that the House wasn’t going to take it up,” Durbin said. The question remains going forward, he added, "whether McConnell will give us a chance.” McConnell aide Don Stewart responded that the majority leader spoke several times about the issue in 2016 and “doesn’t need Sen. Durbin to be his spokesman.”

The president-elect ran on a law-and-order platform, but Trump doesn't appear to have weighed in on the Senate measure during his campaign. Another wildcard factor is Sessions, Trump’s pick to become the attorney general.  As a senior member of the Senate Judiciary Committee, he was a fervent opponent of the sentencing overhaul and one of the five votes against it.

But Sen. Thom Tillis (R-N.C.), another supporter of the criminal justice reform effort, speculated that once Sessions becomes the attorney general, his chief objective will be on enforcing what Congress sends him — even if he disagrees with it — rather than slipping into the role of legislator and try to change the laws. “He’s going to be focused on being the nation’s top law enforcement official,” Tillis said. “I don’t necessarily see him weighing in heavily on public policy choices that President Trump makes.”

Durbin said he intends to press Sessions on his views of criminal justice reform and how he’ll handle the issue at the Justice Department when the two meet privately to discuss about his bid to become attorney general on Wednesday.  Though Sessions had wanted to meet earlier, Durbin said Senate Democrats decided as a caucus to not meet with any Cabinet selections until the new year. “I want to know after all of the speeches he gave on the floor against criminal justice reform, what we can expect of him as attorney general,” Durbin said. “I don’t know what he’ll say.”

Still, others speculate that after Washington endures partisan wars over repealing Obamacare and confirming polarizing presidential nominees, Trump will be looking for a bipartisan win. Criminal justice reform could deliver one. “I know we have enough votes to send this to the president’s desk,” Tillis said. Stressing his desire to avoid legislative gridlock, Tillis added: “The election was not a Republican mandate. The election was a results mandate.”

This story is both encouraging and not all that surprising given the events of the last few years surrounding the proposal, debates and modifications of the Sentencing Reform and Corrections Act. The two lines I have emphasized reflect two coming developments that I think are crucial to this developing 2017 federal sentencing reform story:

1. I think it would be a policy mistake, despite the 2015 Judiciary Committee success of the SRCA, for that bill to serve the essential template for new Senate reform legislation. In my view, there are a host of ways a new and improved federal sentencing reform bill could and should be much more streamlined AND I think a new bill could and should garner even more bipartisan support if it also were to include some modest (or even aggressive) mens rea reforms.

2. I think Senators Sessions and Durbin are really critical players here, especially over the next few weeks, as Sessions develops and articulates his priorities as Attorney General and as Durbin seeks to explain why the horrific uptick in violent crime in his own Chicago (Which Prez-Elect Trump has been tweeting about) should not be a reason to tap the brakes on any further federal sentencing reforms.

January 4, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)