Sunday, January 18, 2015
Highlighting that most prisoners in Wisconsin now sent there for parole or probation violations
This lengthy Milwaukee-Wisconsin Journal Sentinel article highlights the interesting reality of just who gets sent to prison in the Badger State and how. The piece carries this headline and subheading: "No new conviction, but sent back to prison; Re-incarceration for rule, parole violations costs taxpayers millions." Here is how the article starts:
More than half of the nearly 8,000 people sent to Wisconsin's prisons in 2013 were locked up without a trial — and they weren't found guilty of new crimes. Some were punished for violating probation or parole by doing things such as accepting a job without permission, using a cellphone or computer without authorization, or leaving their home county. Some were suspected of criminal activity, but not charged.
Re-incarcerating people for breaking the rules costs Wisconsin taxpayers more than $100 million every year. The process that forces violators back behind bars relies largely on the judgment of individual parole agents, which can vary widely. Once accused of violations, people on parole can be sent back to prison for years without proof beyond a reasonable doubt — and they are left with little chance of a successful appeal.
Hector Cubero's agent, for example, recommended he be returned to prison on his original sentence of life with the possibility of parole after he inked a tattoo on the shoulder of a 15-year-old boy. The tattoo featured a cross and a quote from peace activist Marianne Williamson: "Our deepest fear is not that we are inadequate, our deepest fear is that we are powerful beyond measure."
Cubero maintains the teen lied about his age. Had Cubero been found guilty of tattooing a minor, a city ordinance violation, he would have been ticketed and fined $200. If he had been convicted of tattooing without a license, a misdemeanor, he could have been fined $500 and faced a maximum of 30 days in jail. But because he was on parole at the time, Cubero, 52, has served more than two years — with no guarantee he will ever go home.
Cubero already had spent more than 27 years behind bars for being a party to the crimes of first-degree murder and armed robbery. Court records show Cubero, 18 at the time of the offense, did not plan the robbery or fire the shots that killed the victim, a Milwaukee dentist.
Until the parents of the 15-year-old complained about the tattoo, Cubero had never violated parole, according to Corrections Department records. During the four years he'd been free, he passed all his drug tests, paid his restitution and court costs and worked fairly steadily. Nonetheless, Cubero's parole agent recommended he be sent back to prison. The agent, with cooperation from a prison social worker, also blocked his fiancée, Charlotte Mertins of Delafield, and her three children, all in their 20s, from visiting him.
Saturday, January 17, 2015
"If crime is falling, why aren’t prisons shrinking?"
The title of this post is the headline of this notable Boston Globe commentary. Here are some excerpts:
The prison population in Massachusetts has tripled in size since 1980. That’s faster than the state economy has grown and even faster than the rise in obesity. Massachusetts is hardly alone in this. Prison populations have mushroomed all across the United States, occasionally reaching rates far higher than anything seen here. But while many states are now experimenting with approaches that ease criminal penalties, Massachusetts has taken few steps in this direction.
How many people are in prison? About 165 of every 100,000 people in Massachusetts are currently serving prison sentences of a year or longer. That number used to be a lot lower. In the late 1970s, just 50 of every 100,000 people were in state prisons. You can find this same upward trend most everywhere in the United States; across the country, roughly 430 of every 100,000 people are in state prisons.
Why has the prison population grown so rapidly? Initially, the growth in prison populations was a response to the surge in crime that shook American cities in the ’60s and ’70s. Faced with eruptions of violence, states everywhere began to put more people in prison and to increase the length of prison sentences.
Despite the fact that crime rates have declined dramatically since the early 1990s, those policing techniques and sentencing laws stayed in place. As a result, the prison population remains elevated....
Liberal and conservative states alike have begun to reassess the efficacy of their incarceration policies. Partly, that’s about the strain on state budgets — building and maintaining prisons has proved extremely costly. But it’s also because of new research showing that it’s possible to loosen criminal penalties and reduce crime at the same time.
Over the last few years, the states that made the biggest reductions to their prison populations, including New Jersey and Connecticut, have also seen some of the biggest drops in crime.
Since 2008, 29 states have seen both lower crime rates and smaller prison populations. “Justice reinvestment” is the term being used to describe this effort, and what it involves is a careful cost-benefit analysis to see how states can simultaneously keep people out of prison, reduce crime, and save money. Among other things, states are experimenting with:
• Looser drug laws. Over a dozen states, from California to Maine, have stopped sending people to prison for possessing small amounts of marijuana. And even with more serious drugs, it can be more effective — and cheaper — to help people get treatment. Texas has invested millions of dollars in treatment programs for drug offenders.
• Electronic monitoring. Only recently has it become possible to effectively monitor people without putting them in prison. For those awaiting trial or struggling to keep up with the conditions of their parole, an ankle monitor can be a relatively inexpensive alternative to confinement. New Jersey is one of the states making use of this technology.
• Therapy. Some forms of cognitive-behavioral therapy have been shown to keep one-time criminals from becoming two-time criminals, which is good for the public and good for state budgets. Dozens of different states have experimented with these therapies.
What reforms are being tried in Massachusetts? Given that the prison population in Massachusetts is far smaller than elsewhere in the United States, there’s less urgency around issues of reform. Still, Massachusetts devotes about 3 percent of its budget — over $1 billion each year — to corrections. That’s twice what we spend on early education and roughly the same amount that we devote to higher education....
During his time in office, Governor Patrick had said he hoped this new information would revitalize the state’s sentencing commission, but it’s a big step from data-gathering to policy-making. For now, other states seem to be taking the lead in the effort to find targeted reforms that can safely reverse the decades-long increase in prison populations.
SCOTUS takes up a few small criminal justice case along with big marriage questions
As highlighted by this Lyle Denniston post at SCOTUSblog, yesterday's big Supreme Court news was its decision to finally grant cert to consider the legal and constitutional status of same sex marriage. But this same post also notes that SCOTUS also granted review on four other cases, three of which have criminal justice elements:
In addition to the same-sex marriage cases, the Court agreed on Friday to hear four other new cases, all of which are also expected to be argued in April. Here, in summary, are the issues in those other cases:
In Mata v. Holder, the Court will be ruling on the authority of federal appeals courts to delay a deadline for a non-citizen to seek reopening of a deportation case with a claim that his lawyer was ineffective.
In Horne v. U.S. Department of Agriculture, the Court agreed to decide whether an unconstitutional seizure of part of a California raisin crop occurs when the federal government requires the private grower to take it off the market to help keep raisin prices up....
In McFadden v. United States, the issue is whether federal prosecutors must prove that an individual accused of distributing a substance actually knew that the material was a substitute for (an “analogue” of) an illegal narcotic drug.
In Kingsley v. Hendrickson, the Court will clarify when the police use of force against an individual who is being held awaiting a criminal trial is unconstitutionally excessive.
Friday, January 16, 2015
AG Holder announces notable new limits on civil forfeitures to fund local police
As reported in this Washington Post article, headlined "Holder limits seized-asset sharing process that split billions with local, state police," the out-going Attorney General today announce a notable new policy that ought to take some of the economic incentives out of some drug war enforcement activities. Here are the basics:
Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without proving that a crime occurred. Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.
Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing. The program has enabled local and state police to make seizures and then have them “adopted” by federal agencies, which share in the proceeds. The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.
“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said in a statement. Holder’s decision allows some limited exceptions, including illegal firearms, ammunition, explosives and property associated with child pornography, a small fraction of the total. This would eliminate virtually all cash and vehicle seizures made by local and state police from the program.
While police can continue to make seizures under their own state laws, the federal program was easy to use and required most of the proceeds from the seizures to go to local and state police departments. Many states require seized proceeds to go into the general fund. A Justice official, who spoke on the condition of anonymity in order to discuss the attorney general’s motivation, said Holder “also believes that the new policy will eliminate any possibility that the adoption process might unintentionally incentivize unnecessary stops and seizures.”
Holder’s decision follows a Washington Post investigation published in September that found that police have made cash seizures worth almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001.
January 16, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack
Thursday, January 15, 2015
Political scientist highlights how Ted Kennedy and Joe Biden helped produce modern mass incarcertation
I first spotlighted in this prior post the fascinating new book by Princeton Professor Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America. I now see that The Marshall Project has published this great piece by Dana Goldstein with a brief overview of the book and a potent Q&A with its author. Here is how the piece starts and some of my favorite excerpts:
Are liberals as responsible for the prison boom as conservatives?
That’s the thesis of a new book, The First Civil Right: How Liberals Built Prison America. It has begun to attract reviews and debate from across the political spectrum. Princeton political scientist Naomi Murakawa seeks to upend assumptions about the politics of crime and punishment. She argues that conservatives, playing the politics of racial animus, helped quadruple the incarceration rate, but they were not alone. Rather, she points to “liberal law and order” ideas first expressed by Harry Truman, Lyndon B. Johnson, and even the NAACP. These liberals believed that federalizing crime policy would “professionalize” the justice system and prevent racial bias. But in fact, federal funding and federal oversight of courts, sentencing, and policing helped build what Murakawa calls a “carceral state” that disproportionately punishes people of color.
Murakawa and I talked about her book and its implications for criminal justice reform today, especially the #BlackLivesMatter movement and the Obama administration’s policing reforms....
Q: Your book aims to expose the liberal roots of the prison boom. But Democrats did not create the Willie Horton ad. It was Richard Nixon who expanded the drug war by claiming that drug use was “the common denominator” that explained lawlessness among hippies, inner-city blacks, and antiwar protestors. Is it important to distinguish between the different motives of conservatives and liberals?
A: I think it’s important to stay focused on outcomes in terms of how they affect people’s day-to-day lives. I do discount stated intentions quite a lot. I do this in part because I have a feeling that for those being sentenced under punitive sentencing guidelines it doesn’t make a difference to them that Sen. Ted Kennedy was liberal and overall had a good voting record. It doesn’t make the brutality of living in a cage any less violent.
Kennedy promulgated this idea of sentencing guidelines. It was his baby. He ushered it through the Senate at first as guidelines that were rigid but would have been somewhat anti-carceral. They became guidelines that were rigid and more carceral. And Reagan signed this legislation, in 1984. Kennedy had the rest of his life to say, “The sentencing guidelines have had a terrible impact. This is not what I meant.” Not once did he introduce legislation to reform the guidelines. Not once did he apologize or try to change it. When I look at that kind of history, that’s where I feel like it’s fair to hold liberals responsible.
Q: Joe Biden played an interesting role in what you call Democrats “upping the ante” to outbid conservatives on being tough on crime. Can you talk about Biden’s history?
A: He was really pivotal in leading the Senate in worsening all of the provisions of Clinton's 1994 Omnibus Crime Act, which expanded the death penalty and created new mandatory minimum sentences. Biden was truly a leader and worked very closely and very happily with conservative senators just to bid up and up and up. There’s a tendency now to talk about Joe Biden as the sort of affable if inappropriate uncle, as loudmouth and silly. But he’s actually done really deeply disturbing, dangerous reforms that have made the criminal justice system more lethal and just bigger.
That 1994 act is overwhelmingly, incredibly punitive. One of the ways Biden brokered it was by making it such a huge bill that it had something for everyone. It provided political coverage for everyone who wanted to vote for it. There were certain liberal members who might have been opposed to mandatory minimums, but they were also getting the Violence Against Women Act. The Congressional Black Caucus opposed the death penalty expansions, but the bill also did include some modest money for rehabilitation programs. Everyone got goodies through the criminal justice system.
Prior related post:
January 15, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack
"Are Pardons Becoming More Politically Acceptable?"
The question in the title of this post is the headline of this new Governing article. The piece has the subheadline, "Gubernatorial pardons have been in decline since the 1980s, but that appears to be changing as views evolve on rehabilitation and drug offenses." And here are excerpts:
Last Friday, on his last full business day in office, Illinois Gov. Pat Quinn pardoned 232 ex-offenders. That same day, in neighboring Indiana, Gov. Mike Pence issued three pardons -- the first during his two years in office.
Which governor’s actions were standard? Until recently, it would have been easy to pick Pence. For decades now, governors have been sparing with pardons, not wanting to be perceived as lenient and worrying about the political risks that can come with pardoning people who go on to commit further crimes.
But gubernatorial pardons may be about ready to start making a comeback. As part of the broader rethinking of criminal justice strategies, in which concerns about rehabilitation, exonerations and expungement of records have become part of the mix, more governors seem willing to embrace their historic role of offering clemency to those who have earned it.
Quinn offered 43 additional offenders clemency during his last minutes in office on Monday, bringing his career total well above 1,000. Virginia Gov. Terry McAuliffe issued nearly 50 pardons during his first year in office, while California’s Jerry Brown gave out more than 100 on Christmas Eve.
Those sorts of numbers still stand out. The number of gubernatorial pardons has dropped dramatically in recent decades, according to legal experts. Plenty of governors these days only offer a few pardons a year, if that many. But governors offering a regular flow of pardons are no longer the outliers that they would have been just a few years ago. "I do have a sense that people like Quinn represent the future," said P.S. Ruckman Jr., a political scientist at Rock Valley College in Illinois and editor of the Power Pardon blog. "There is kind of a different mindset."
One telltale sign of that, Ruckman points out, is that some new governors, including Larry Hogan of Maryland and Bruce Rauner of Illinois, talked during the campaign last year about the importance of taking the pardon power seriously in office. "That wouldn’t have happened in the 1980s,” Ruckman said....
States that have either independent pardoning boards or entities whose recommendations are necessary for a governor to issue a pardon, such as Connecticut and Georgia, have been more active on the clemency front than governors acting alone. A number of those states routinely grant upwards of 200 pardons per year.
Still, governors from both parties, such as Democrat Andrew Cuomo of New York and Republican Scott Walker of Wisconsin have offered either few or no pardons. There’s still a “political fear quotient” involved in pardoning someone who might go on to commit a heinous crime, noted former Maryland Gov. Bob Ehrlich. "Unfortunately, we only talk about pardon policy when something goes wrong," said Mark Osler, a law professor at the University of St. Thomas in Minnesota.
That’s why governors need to be careful, Ehrlich said, putting regular review processes in place and not bunching up all their decisions at holidays or as they leave office. That's the approach outgoing Arkansas Gov. Mike Beebe has taken, reviewing applications on a monthly basis throughout his tenure. Ehrlich has made pardons something of a personal cause, speaking frequently about the responsibility governors have regarding clemency. He runs a program to delineate best practices at Catholic University and offers advice to incoming governors....
“One thing that will be interesting to watch is that President Obama” -- who has issued the fewest pardons of any president since Dwight Eisenhower -- “has a clemency project that may or may not result in hundreds of sentences being commuted,” said Osler. “Maybe that will embolden some of these more liberal governors as well.”
Over dissent of four Justices, SCOTUS lets Oklahoma execution go forward (... and Florida executes around the same time)
As reported in this USA Today article, a "sharply divided Supreme Court refused Thursday to block the execution of an Oklahoma inmate over concerns about a drug protocol that has caused problems in the past." Here is more:
The court's five conservative justices denied the request for a stay of execution without comment. But the four liberal justices issued an eight-page dissent in which they questioned whether the drug protocol.
"The questions before us are especially important now, given states' increasing reliance on new and scientifically untested methods of execution," Justice Sonia Sotomayor wrote. "Petitioners have committed horrific crimes and should be punished. But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death. I hope that our failure to act today does not portend our unwillingness to consider these questions."
Warner's execution was to come within hours of another in Florida, where Johnny Shane Kormondy, 42, was awaiting death for killing a man during a 1993 home invasion. Both executions were to use the same combination of three drugs.
Lawyers for Warner and three other convicts set for execution in Oklahoma over the next seven weeks had sought the Supreme Court's intervention after two lower federal courts refused their pleas.
Justice Sotomayor's eight-page dissent, which was joined by Justices Ginsburg, Breyer and Kagan, is available at this link and it ends with these two paragraphs:
I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol. It is true that we give deference to the district courts. But at some point we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed. We should review such findings with added care when what is at issue is the risk of the needless infliction of severe pain. Here, given the evidence before the District Court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.
I believe that we should have granted petitioners’ application for stay. The questions before us are especially important now, given States’ increasing reliance on new and scientifically untested methods of execution. Petitioners have committed horrific crimes, and should be punished. But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death. I hope that our failure to act today does not portend our unwillingness to consider these questions.
Not long after this decision was handed down, Oklahoma finally was able to carry out the death sentence imposed on Charles Warner for him murder of his girlfriend's 11-month-old daughter way back in 1997. This AP report suggests that this Oklahoma execution, as well as another one taking place at roughly the same time in Florida with the same combination of drugs, were completed "without incident." Consequently, I hope Justice Sotomayor feels at least some relief that these two murderers, roughly two decades after they killed, apparently were seemingly not "subjected to an execution that causes searing, unnecessary pain before death."
UPDATE: This CBS News story suggests that I may have been too quick to assume that the Oklahoma execution was without incident. Here is what the CBS News story reports about what unfolding in Oklahoma:
The execution lasted 18 minutes.
"Before I give my final statement, I'll tell you they poked me five times. It hurt. It feels like acid," Warner said before the execution began. He added, "I'm not a monster. I didn't do everything they said I did."
After the first drug was administered, Warner said, "My body is on fire." But he showed no obvious signs of distress. Witnesses said they saw slight twitching in Warner's neck about three minutes after the lethal injection began. The twitching lasted about seven minutes until he stopped breathing.
Wednesday, January 14, 2015
With interesting 6-3 split, SCOTUS gives habeas petitioner a little win on appeal
The Supreme Court this morning handed down a notable habeas procedure opinion today in Jennings v. Stevens, No. 13-7211 (S. Ct. Jan. 14, 2015) (available here). Here is the start and conclusion of the majority opinion by Justice Scalia:
Petitioner Robert Mitchell Jennings was sentenced to death for capital murder. He applied for federal habeas corpus relief on three theories of ineffective assistance of counsel, prevailing on two. The State appealed, and Jennings defended his writ on all three theories. We consider whether Jennings was permitted to pursue the theory that the District Court had rejected without taking a crossappeal or obtaining a certificate of appealability....
Because Jennings’ Spisak theory would neither have enlarged his rights nor diminished the State’s rights under the District Court’s judgment, he was required neither to take a cross-appeal nor to obtain a certificate of appealability. We reverse the judgment of the Fifth Circuit and remand the case for consideration of Jennings’ Spisak claim.
Justice Thomas, joined by Justices Kennedy and Alito, authored a dissenting opinion that starts this way:
The Court holds today that a prisoner who obtains an order for his release unless the State grants him a new sentencing proceeding may, as an appellee, raise any alternative argument rejected below that could have resulted in a similar order. In doing so, the majority mistakenly equates a judgment granting a conditional-release order with an ordinary civil judgment. I respectfully dissent.
Off the top of my head, I cannot think of another recent criminal case with this particular combination of Justices in the majority and in the dissent. Except for those involved in complicated habeas proceedings, the line up of the Justices is arguably the most notable aspect of this ruling.
Tuesday, January 13, 2015
Senator Grassley queries DOJ concerning its work with Clemency Project 2014
Josh Gerstein has this notable new piece up at Politico headlined "Grassley questions Obama commutation drive," about a notable new inquiry directed to Attorney General Holder concerning the Obama Administration's (quirky?) efforts to ramp up its clemency activities. Here are excerpts:
New Senate Judiciary Committee Chairman Sen. Chuck Grassley is questioning the arrangements surrounding President Barack Obama's drive to shorten the sentences of some drug convicts.
In a letter sent Tuesday to Attorney General Eric Holder, the Iowa Republican asks for information about the relationship between the Justice Department and "Clemency Project 2014" — a consortium of outside groups formed in response to calls from administration officials to help federal prisoners prepare applications for the clemency effort.
"I am unaware of any time in history in which the Department of Justice has delegated any of these core attributes of presidential power to private parties beholden to no one, and who have their own agendas that may not coincide with the President's," Grassley wrote in the letter (posted here). "When private parties are wrongly given the ability to exercise any role in that public trust, then both the fairness of the pardon process and the appearance of its fairness are jeopardized."
Grassley's letter draws in large part on a POLITICO story last week which said that the new effort is struggling with more than 25,000 requests from inmates and that lawyers involved in the project have suggested applicants which route their clemency petitions through the project will stand a better or faster chance of favorable action than those who submit applications independently. The project—run by the American Civil Liberties Union, the American Bar Association, Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers— is also screening applications and weeding out those it considers unmeritorious under criteria the Justice Department set forth last April.
"Please tell me what formal arrangements exist between the Department and the Clemency Project 2014 to coordinate the processing of pardon applications, including what direction Clemency Project lawyers are given, what actions they take for the Department, and, how, if at all, Department of Justice lawyers consider the work product provided by these organizations or follow their recommendations," Grassley wrote. The senator also asks if anyone in the Justice Department is aware of statements suggesting those who submit applications through the project will have "superior access to the Department's pardon process."...
Grassley's letter refers to "pardon applicants," but the petitions prisoners are submitting are actually requests for commutations — a form of executive clemency that serves to shorten a prisoner's sentence.
The president can grant a commutation to anyone for virtually any reason. However, such applications are traditionally routed through the Justice Department's Office of the Pardon Attorney, which prepares recommendations and sends them to the department's No. 2 official, who forwards them to the White House.
The new commutation drive the Justice Department announced last year is aimed largely at paring back the sentences of convicts sent to prison for long terms relating to trafficking in crack cocaine. Those prisoners tend to be disproportionately minority as compared to those convicted of handling powdered cocaine. A law Obama signed in 2010 reduced that disparity for defendants sentenced after that time, but it was not retroactive.
The full Grassley letter is quite interesting, and not just because it gives some grief to Obama Administration about how it appears to be approaching its latest clemency push. The letter asked a host of hard questions about what exactly DOJ and Clemency Project 2014 are up to, while also asserting in a final paragraph that "[j]ustice in the award of presidential pardons requires a transparent, fair process." And, unsurprisingly, the letter does not mention the sad reality that presidential clemency actions of the last two presidents have involved nothing resembling a "transparent, fair process."
Among other notable aspects of this letter, Senator Grassley's obvious interest in these matter suggests that clemency issues are likely to be raised in some way during the upcoming confirmation hearings for AG Holder's replacement.
January 13, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Brief account of what proposed fraud guideline changes might amount to
This new Reuters article, headlined "U.S. panel proposes changes to white-collar prison sentences," provides a reasonable summary of the likely import and impact of the guideline reform proposes announced by the US Sentencing Commission late last week (discussed here). Here are excerpts:
Some executives and others convicted of stock fraud could face shorter prison terms under a U.S. commission's proposal to change how white-collar criminals are sentenced. The U.S. Sentencing Commission on Friday released proposals to amend advisory federal guidelines that would shift the emphasis in calculating a sentence for frauds on the market to financial gains instead of investor losses.
The proposal follows years of criticism by defense lawyers and some judges who say that the guidelines focus too much on financial losses caused by fraud, leading in certain cases to sentences that are too harsh. Judges have discretion to impose any sentence, but are required to consider the guidelines.
In stock fraud cases, losses can be in the hundreds of millions of dollars, contributing to an advisory sentence of life in prison. Under the commission's proposal, judges in these cases would consider the gains from a fraud, a number defense lawyers say would often be considerably smaller.
The Sentencing Commission has scheduled a March 12 hearing on the proposals. The panel has until May 1 to submit any amendments to Congress. If Congress does not act by Nov. 1, the changes become law....
The commission has proposed setting a threshold sentencing level for gains, ensuring punishment in cases where profits are minimal. Depending on what floor is set, there is a "very good chance a number of cases would result in lower guideline sentencing ranges," said David Debold, a lawyer at Gibson, Dunn & Crutcher who heads up an advisory group to the commission.
Defense lawyers cautioned that the proposed changes would not always result in a lower sentencing range. Some frauds like penny stock manipulation, for example, could involve significant gains to defendants and might still lead to lengthy sentences. Other proposals would affect the weight given to factors such as the harm to victims and the sophistication of a fraud.
Some defense lawyers say the proposals overall do not sufficiently emphasize a defendant's culpability and leaves loss as a driving factor for the bulk of fraud cases involving identity theft, mortgage fraud and healthcare fraud. "These changes don't go nearly as far as we would have liked," James Felman, a Florida lawyer and member of an American Bar Association task force advocating changes to the guidelines.
U.S. District Judge Patti Saris, the commission's chair, said in a statement that the panel did not consider "the guideline to be broken for most forms of fraud," but that its review had identified "some problem areas where changes may be necessary."
Prior related post:
Monday, January 12, 2015
"Disgust, Dehumanization, and the Courts’ Response to Sex Offender Legislation"
A helpful reader alerted me to a notable article by Alexandra Stupple appearing in the Fall 2014 issue of National Lawyers Guild Review which has a title that also serves as the title of this post. The relative short article (which starts on page 8 of this pdf link) has the following introduction and conclusion:
Sex offenders have been subject to unprecedented restrictions and punishment. The government’s treatment of sex offenders is a clear example of the dangers of laws derived from and upheld because of the emotion of disgust. Disgust has led to a dehumanization of this category of people, which has led to a stripping of their constitutional rights. The law’s treatment of sex offenders is a clear example of why the law should eschew employing the emotion of disgust during all proceedings. In addition, the courts’, particularly the Supreme Court’s, treatment of the other branches’ actions regarding sex offenders is illustrative of why the law needs to insist upon empirical data in support of legislation and why the courts should not always defer to the other branches’ findings....
Today, all communities rightfully think of crimes such as child rape and molestation as the grave and heinous acts they are; however, a panic has ensued which has led to a squandering of public resources, the dehumanization of a swath of people, and the denigration of the Constitution. For the protection of everyone’s constitutional rights, a conscious commitment by all lawmakers to use empirical data in their fact-finding and decision-making is required, even if done while feeling and expressing emotions like anger and contempt. This may be the only way evidence-based practices and policies that actually protect the public from sexually violent persons will be born.
United States v. Booker is exactly 10 years old today, and...
apparently I am the only one to highlight (or perhaps even realize) that today marks a huge milestone in the history of the federal sentencing system and provides a unique moment for extended reflection on what a decade of advisory guidelines has wrought.
Given that sentencing jurisprudence never gets much respect from the usual constitutional law gurus, I suppose I am not all that surprised that the folks at SCOTUSblog or The Volokh Conspiracy are not running some kind of "Booker at 10" commentary symposium. But I suppose I was secretly hoping that maybe the US Sentencing Commission or the federal public defenders or the US Department of Justice or some of the bigger federal sentencing reform advocacy groups would have something notable on their websites about this milestone.
In an effort to fill this notable void, in some coming posts I may try to do some armchair data analyses and comment broadly on what I think a decade of advisory guidelines has wrought. But for now I just wanted to link here to the full 124-page Booker opinion, note that this Booker anniversary is dog that is not barking, and encourage reader commentary about what the lack of attention might mean.
UPDATE: A helpful reader reminded me that I should here note and praise that the Hastings Law Journal, as detailed here, is hosting a terrific symposium next month titled "Federal Sentencing Reform, Ten Years After United States v. Booker." I feel bad I did not flag this before, as I am one of the scheduled speakers on the second of these four planned panels:
- Panel 1: The Economics of Sentencing Reform
- Panel 2: Sentencing Reform & the End of the Drug War
- Panel 3: White Collar Crime Sentencing
- Panel 4: The Judicial Perspective
Saturday, January 10, 2015
SCOTUS orders new briefing and argument on ACCA's constitutionality in Johnson!?!?!
The US Supreme Court on Friday afternoon added a remarkable twist to what had been a small sentencing case, a case which had its (first) SCOTUS oral argument earlier this Term, via this new order:
13-7120 JOHNSON, SAMUEL V. UNITED STATES
This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: "Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii), is unconstitutionally vague." The supplemental brief of petitioner is due on or before Wednesday, February 18, 2015. The supplemental brief of the United States is due on or before Friday, March 20, 2015. The reply brief, if any, is due on or before Friday, April 10, 2015. The time to file amicus curiae briefs is as provided for by Rule 37.3(a). The word limits and cover colors for the briefs should correspond to the provisions of Rule 33.1(g) pertaining to briefs on the merits rather than to the provision pertaining to supplemental briefs. The case will be set for oral argument during the April 2015 argument session.
As some readers likely know, and as Will Baude effectively explains in this new post at The Volokh Conspiracy, "Justice Scalia has been arguing with increasing force that the Act is vague, and the reargument order suggests that there’s a good chance he may finally have convinced his colleagues that he’s right."
This strikes me as huge news, especially because I think any ruling that part of ACCA is unconstitutionally vague would be a substantive constitutional judgment that should get applied retroactively to hundreds (and potentially thousands) of federal prisoners serving mandatory minimum terms of 15 years or more. US Sentencing Commission data suggests that perhaps 5000 or more federal defendants have been sentenced under ACCA over the last decade, though I would guess the majority of these cases did not hinge on the ACCA subprovision that SCOTUS might now find unconstitutional.
Friday, January 09, 2015
US Sentencing Commission proposes (modest but significant) changes to the fraud guidelines
As reported in this official news release, the "United States Sentencing Commission voted today to publish proposed guideline amendments, including revisions to the sentencing guideline governing fraud." Here are the basics from the release:
The bipartisan Commission voted to seek comment on a proposed amendment to revise guideline §2B1.1 governing fraud offenses by clarifying the definition of “intended loss,” which contributes to the degree of punishment, and the enhancement for the use of sophisticated means in a fraud offense. The proposed amendment also revises the guideline to better consider the degree of harm to victims, rather than just the number of victims, and includes a modified, simpler approach to “fraud on the market” offenses which involve manipulation of the value of stocks.
The proposed revisions to the fraud guidelines come after a multi-year study, which included a detailed examination of sentencing data, outreach to experts and stakeholders, and a September 2013 symposium at John Jay College of Criminal Justice in New York. “We have heard criticism from some judges and members of the bar that the fraud guideline may be fundamentally broken, particularly for fraud on the market cases,” said Judge Patti B. Saris, Chair of the Commission. “Based on our extensive examination of data, we have not seen a basis for finding the guideline to be broken for most forms of fraud, like identity theft, mortgage fraud, or healthcare fraud, but this review has helped us to identify some problem areas where changes may be necessary.”...
Consistent with the Commission’s mission to make the guidelines more efficient and more effective, the Commission also voted today to clarify the provisions allowing for sentence reductions for offenders with mitigating roles in the offense and the provisions governing jointly undertaken criminal activity. The Commission similarly proposed adjusting the tables based on amounts of money for inflation in an attempt to keep the guidelines current and follow the approach generally mandated by statute for most civil monetary penalties....
The proposed amendments and issues for comment will be subject to a public comment period running through March 18. A public hearing on the proposed amendments will be scheduled in Washington, D.C., on March 12. More information about these hearings, as well as a data presentation on today’s proposed fraud amendment and other relevant data, will be available on the Commission’s web site at www.ussc.gov.
Here are links to new materials already posted on the USSC website this afternoon:
- "Reader-Friendly" Version of Proposed Amendments (January 9, 2015)
- Chair's Remarks at Public Meeting (January 9, 2015)
As the title of this post indicates, these new proposed amendments strike me as relatively modest but still quite significant. Most notably, the white-collar defense bar is likely to be very interested in what these changes signal and suggest, and any federal fraud defendants currently serving very long guideline sentences may want to start thinking about whether these proposed amendments might help their cause if they are formally adopted and thereafter made retroactive.
"How White Liberals Used Civil Rights to Create More Prisons"
The potent title of this post is the potent title of this new piece at The Nation by Willie Osterweil, which serves as a review of sorts of a book by historian Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America. Both the full Nation article and the book it discusses are worth attention, and here are excerpts from the article:
In her first book, The First Civil Right: How Liberals Built Prison in America, historian Naomi Murakawa demonstrates how the American prison state emerged not out of race-baiting states’-rights advocates nor tough-on-crime drug warriors but rather from federal legislation written by liberals working to guarantee racial equality under the law. The prison industry, and its associated police forces, spy agencies and kangaroo courts, is perhaps the most horrific piece of a fundamentally racist and unequal American civil society. More people are under correctional supervision in the United States than were in the Gulag archipelago at the height of the Great Terror; there are more black men in prison, jail or parole than were enslaved in 1850. How did this happen?
The common-sense answer is that launching the war on drugs during the backlash against civil-rights struggles encouraged agents of the criminal-justice system to lock up black people for minor infractions. This isn’t wrong, or not exactly. Ronald Reagan’s infamous Sentencing Reform Act of 1984, which established federal minimums (a k a sentencing “guidelines”) and abolished parole in the federal prison systems, did lead to an explosion in the number of federal prisoners, particularly drug offenders. It was one of the pivotal moments in the production of the prison-industrial complex (PIC) — the overlapping sphere of government and industrial activity that employs hundreds of thousands of guards, cops, judges, lawyers, bail-bondsmen, administrators and service employees and which sees millions of prisoners performing barely paid production labor to generate profit. But, as Murakawa painstakingly demonstrates, the Sentencing Reform Act has a “liberal core,” and is built on the technical and administrative logic of racial fairness that structures all federal civil-rights legislation.
This is the fundamental thesis of Murakawa’s book: legal civil rights and the American carceral state are built on the same conceptions of race, the state and their relationship. As liberals believe that racism is first and foremost a question of individual bias, they imagine racism can be overcome by removing the discretion of (potentially racist) individuals within government through a set of well-crafted laws and rules. If obviously discriminatory laws can be struck down, and judges, statesmen or administrators aren’t allowed to give reign to their racism, then the system should achieve racially just outcomes. But even putting aside the fact that a removal of individual discretion is impossible, such a conception of “fairness” applies just as easily to producing sentencing minimums as school desegregation....
Murakawa does not simply collapse liberal and conservative into each other. She makes an important distinction between postwar racial-liberalism and postwar racial-conservatism. Race conservatives are those who don’t believe that racism is real, but that race is: they believe that black people are innately inferior to whites, and attribute their place in society to a failure of black culture. This race-conservatism is what is broadly considered “real racism.”
Race-liberalism, on the other hand, remains the dominant — and usually unspoken — American framework for understanding race. Built on the premise that racism is real but manifests as the prejudice of white people, race-liberals argue that individuals’ racism can corrupt institutions and bias them against black people. That bias damages black psyches as well as black people’s economic and social prospects. Race-liberals believe that training, laws, stricter rules and oversight can eliminate prejudice and render institutions “colorblind.” Since it is biased treatment that damages black prospects, then this fix — civil rights — applied to all of society’s institutions, would eventually end racial disparity.
Both race-liberals and race-conservatives base their theories on one disastrous assumption: black people naturally produce crime. For race-conservatives, black people are innately, genetically criminal, full stop. For race-liberals, the psychological, economic and social damage of prejudice makes black people “lash out” violently and criminally–either in the form of individual criminal acts or, as the black freedom movement begins in earnest, as protests and rioting. Under both schema, however, the reason society must achieve racial equality is because equality will eliminate black crime.
Thursday, January 08, 2015
Ohio to delay scheduled executions early in 2015 after adopting another new execution protocol
This Columbus Dispatch article, headlined "State revises death penalty protocol, will delay executions," provides the latest news in the ever-dynamic Ohio execution story. Here are the details:
Ohio will switch its lethal injection protocol, adding thiopental sodium, a drug used previously, and dropping the two-drug regimen of midazolam and hydromorphone that caused problems in the last execution a year ago.
The Ohio Department of Rehabilitation and Correction said today until it secures supplies of pentobarbital, a drug already permitted, or thiopental sodium, the Feb. 11 execution of Ronald Phillips, and possibly others, will be postponed. The state used thiopental sodium from 1999 until 2011.
Gov. John Kasich will likely have to postpone the executions of Phillips, 41, of Summit County, and Raymond Tibbetts, 57, of Hamilton County, scheduled for March 12. The execution of Gregory Lott, 53, of Cuyahoga County, is scheduled May 14.
The first two executions would take place before House Bill 663, a new lethal injection law passed by the legislature and signed by the governor, takes effect in late March. The law allows the state to buy drugs from small compounding pharmacies, which mix batches of drugs to customer specifications. It also permits the state to keep secret the identities of drug suppliers because of security concerns....
The state had to file legal paperwork detailing the new drug protocol with U.S. District Judge Gregory Frost 30 days in advance of the next scheduled execution on Feb. 11. Frost has presided over most of the recent contested lethal injection cases filed on behalf of Ohio Death Row prisoners.
The change means that Dennis McGuire 53, will be the one and only person in Ohio to be put to death using the combination of midazolam and hyrdomorphone. During his Jan. 16, 2014, execution, McGuire choked, coughed, gasped and clenched his fists for about 20 minutes prior to succumbing to the drug mixture. His son and daughter, who watched their father’s troubled execution, subsequently sued the state, alleging his death was cruel and unusual punishment, a violation of the U.S. Constitution....
The controversy over McGuire’s executions resulted in the postponement of all remaining executions in Ohio last year. It will be the fifth time in 2 1/2 years that Phillips has had a new execution date. Dates in September and July last year, and November 2013 were delayed either by Kasich’s clemency actions or reprieves from Frost. Phillips was given a reprieve by Kasich to explore his desire to have transplant surgery to provide a kidney to his ailing mother, but the surgery never took place....
In addition, a lawsuit was filed late last year on behalf of Phillips, Tibbetts and two other inmates challenging the secrecy shrouding the revised execution process. Frost will also hear that lawsuit which claims that state officials, through the new law, are trying to stifle public debate about capital punishment by “seeking to punish, disarm, suppress and silence” opposition.
Is California prepared to revoke parole for any sex offender with an iffy lie-detector test?
The question in the title of this post is prompted by this new AP story with the headline "California making sex offenders take lie-detector tests." Here are the basics:
For the first time, California is making paroled sex offenders take periodic lie-detector tests in response to several high-profile cases involving parolees who raped and killed.
State officials said this week that the stepped-up effort to prevent new sex crimes will help them better gauge which offenders are most dangerous and in need of increased supervision. All sex offender parolees also are required to participate in specially-designed treatment programs. Previously, only high-risk offenders had to undergo treatment.
California is not the first state to adopt the new policies. But with more than 6,000 sex offenders on parole, officials say it is by far the largest.
I have never closely followed the debates of the reliability of lie detector tests, but it appears that California has decided that they are reliable enough to become a mandatory part of parole requirements for sex offenders. That said, I wonder if these lie-detector test will be considered reliable enough (by parole officials? by courts?) to alone provide a sufficient basis for revoking a sex offender's parole if he sometimes fails to "pass the test with flying colors"?
"Sentencing Rules and Standards: How We Decide Criminal Punishment"
The title of this post is the title of this notable new article on SSRN authored by Jacob Schuman. Here is the abstract:
Over the course of the past 300 years, American sentencing policy has alternated between “determinate” and “indeterminate” systems of deciding punishment. Debates over sentence determinacy have focused on three questions: Who should decide punishment? What makes punishment fair? And why should we punish wrongdoers at all?
In this Article, I ask a new, fourth, question: How should we decide punishment? I show that determinate sentencing uses rules to determine sentences, while indeterminate sentencing relies on standards. Applying this insight to federal sentencing practice, I demonstrate that district court judges “depart” or “vary” from the United States Sentencing Guidelines in order to correct the substantive and formal errors that result from rule-based decisionmaking, instead sentencing based on the § 3553(a) standard. I argue that judges should be more willing to take departures and variances in cases involving particularly large or particularly numerous sentence adjustments.
Wednesday, January 07, 2015
Victim rights' back-story at heart of new Cassell-Dershowitz blood feud
Lots of criminal justice folks are buzzing about the extraordinary spitting match that has broken out between notable criminal law professors Paul Cassell and Alan Dershowitz. Helpfully, Jacob Gershman has this effective Wall Street Journal posting which explains the interesting criminal justice issues that got this heavyweight fight started. The piece is headlined "Behind Epstein Suit, a Tussle Over Due Process and Victims’ Rights," and here are excerpts:
The salacious allegations against Prince Andrew and Alan Dershowitz that surfaced in a federal lawsuit involving convicted sex offender Jeffrey Epstein have generated international attention. Drawing less coverage is the lawsuit itself — a case with the potential to expand the rights of crime victims during federal investigations.
The lawsuit centers on a 2007 agreement the federal government made with Mr. Epstein, a Florida financier suspected of sexually abusing multiple underage girls. Under its agreement with Mr. Epstein, who had been the target of an FBI probe, federal prosecutors promised not to bring charges against him in Florida if, among other conditions, he pleaded guilty to a state felony charge of soliciting an underage prostitute. Mr. Epstein pleaded guilty to the state charge in 2008 and served about 13 months behind bars.
Two of Mr. Epstein’s alleged victims then filed suit against the U.S. government in 2008, claiming federal authorities violated their rights under a 2004 law by keeping them in the dark about the non-prosecution deal. They want a federal court to invalidate the agreement, a position fiercely contested by the government. The law in question is the Crime Victims’ Rights Act, a statutory bill of rights for victims of federal crimes. Among other things, the law grants victims a “reasonable right to confer with the attorney for the Government in the case.”
The case exposes tensions between the due-process rights of the accused and the rights of victims. Attorneys representing the plaintiffs, former federal judge Paul Cassell and Florida lawyer Bradley Edwards, say at stake “is whether a federal statute protecting crime victims rights can be ignored with impunity or, as we argue, whether instead real remedies exist for its violation.”
U.S. prosecutors say the government had no obligation to confer with the alleged victims. Since they never charged Mr. Epstein with a crime, they argue, the plaintiffs don’t qualify as victims under that 2004 law. And even if that right existed, the government argues, the Constitution’s due-process guarantees bar prosecutors from reneging on their agreement with Mr. Epstein.
In making their argument, prosecutors have cited a Dec. 2010 opinion issued by the Justice Department’s Office of Legal Counsel, which provides legal advice to the president and executive-branch agencies. The opinion states that the “rights provided by the CVRA are guaranteed” only after “criminal proceedings are initiated through a complaint, information, or indictment.”
In a 2011 ruling, the federal judge presiding over the case, Kenneth A. Marra, sided with the plaintiffs’ interpretation of the law, writing that the CVRA “clearly contemplates pre-charge proceedings.” And in a 2013 order, rejecting a motion by the government to dismiss the case, the judge wrote that a non-prosecution arrangement may be “re-opened” if it were reached in “violation of a prosecutor’s conferral obligations under the statute.”
The plaintiffs’ lawyers allege that the government failed to meet those obligations. In court documents, they accuse the U.S. attorney’s office of concealing the agreement “to avoid a firestorm of public controversy that would have erupted if the sweetheart plea deal with a politically-connected billionaire had been revealed.”
Congressional Black Caucus saying it will focus on criminal justice reform
I expect the next few years to be dynamic with respect to federal criminal justice reform, and this inside-the-Beltway story provides another reason why:
The Congressional Black Caucus will focus on criminal justice reform, U.S. Rep. G.K. Butterfield of North Carolina said in a speech on Tuesday at a ceremony where he was sworn in as the group’s new chairman. “There is a well-founded mistrust between the African American community and law enforcement officers,” Butterfield said in a speech. “The statistics are clear. Video clips are clear.
“We recognize that the overwhelming majority of law enforcement officers put their lives on the line every day to protect our communities. Unfortunately, there are some officers who abuse the sacred responsibility to protect and serve by using excessive, and sometimes deadly force when a less severe response is warranted,” the North Carolina Democrat said. “The CBC will seek legislative action to reverse this terrible trend.”
The Congressional Black Caucus also would work to try to change sentencing laws, hold prosecutors to ethical standards, and ensure that defendants have competent lawyers, Butterfield added....
The Congressional Black Caucus welcomed five new members at the ceremony where Butterfield spoke, including one Republican, conservative Mia Love of Utah, and Democratic Reps. Alma Adams of North Carolina, Bonnie Watson Coleman of New Jersey, Brenda Lawrence of Michigan and Stacey Plaskett of the U.S. Virgin Islands.
As I noted in this prior post, Mia Love, the first black Republican woman ever elected to Congress, could be an especially important voice on these issues if she embraces the CBC's commitment to making these matters a priority for reforms.
A few prior related posts:
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
- What does Rep-elect Mia Love, the new most-interesting person in Congress, think about sentencing reform and the federal drug war?