Sunday, July 13, 2014
USSC Chair reiterates Commission's sentencing reform message to House Judiciary Committee
This past Friday, US Sentencing Commission Chair, Chief Judge Patti Saris, testified at this hearing of Over-Criminalization Task Force of the Committee on the Judiciary of the US House of Representatives. Her lengthy written testimony is available at this link, and here is a summary paragraph from the Chair's discussion of recommended mandatory minimum reforms:
Based on [our] analysis, the Commission continues to recommend unanimously that Congress consider a number of statutory changes. The Commission recommends that Congress reduce the current statutory mandatory minimum penalties for drug trafficking. We further recommend that the provisions of the Fair Sentencing Act of 2010, which Congress passed to reduce the disparity in treatment of crack and powder cocaine, be made retroactive. Finally, we recommend that Congress consider expanding the so-called “safety valve,” allowing sentences below mandatory minimum penalties for non-violent low-level drug offenders, to offenders with slightly greater criminal histories than currently permitted.
Republican and Democratic members of this Task Force and others in Congress have proposed legislation to reform certain mandatory minimum penalty provisions. The Commission strongly supports these efforts to reform this important area of the law.
Notably, as this official press release highlights, Judge Irene Keeley, chair of the Judicial Conference Criminal Law Committee, echoed similar messages in he testimony to the House Task Force:
A representative of the Judicial Conference today told a House Judiciary Task Force that policy initiatives curbing over-federalization of criminal law, reforming mandatory minimum sentences and amending the Sentencing Guidelines have the support of the Judicial Conference, but that the Judiciary currently lacks the resources to shoulder resulting increased workload.
“Policy-makers must not create a new public safety crisis in our communities by simply transferring the risks and costs from the prisons to the caseloads of already strained probation officers and the full dockets of the courts,” said Judge Irene Keeley, chair of the Judicial Conference Criminal Law Committee. “Lasting and meaningful solutions can be attained only if the branches work together to ensure that the correct cases are brought into the federal system, just sentences are imposed, and offenders are appropriately placed in prison or under supervision in the community.”
Saturday, July 12, 2014
"An NTSB for Capital Punishment"
The title of this post is the title of this notable new essay by Adam Gershowitz now available via SSRN. Here is the abstract:
When a fatal traffic accident happens, we expect the local police and prosecutors to handle the investigation and criminal charges. When a fatal airplane crash occurs however, we turn instead to the National Transportation Safety Board. The reason is that air crashes are complicated and the NTSB has vast expertise. Without that expertise, investigations falter. We need look no further than the mess made by Malaysian authorities in the search for Flight 370 to see the importance of expertise in handling complicated investigations and processes.
It is easy to point to a similar series of mistakes by local prosecutors and defense attorneys in many death-penalty cases around the country. If we are to continue utilizing capital punishment in the United States, the death-penalty system should follow air crash model, not the car crash model. Capital cases should be handled by an elite nationwide unit of prosecutors and investigators who travel to capital murder sites the way the NTSB travels to airplane and other catastrophic crashes. As the number of death sentences dwindles each year, states have incentive to enter into an NTSB model that allows them to continue using capital punishment without having to handle the complicated cases themselves. This symposium essay argues that capital punishment as currently conducted at the local level is failure, but that the death penalty can be justified if carried out by an elite, national team of lawyers and investigators.
"4 Reasons Conservatives Are Embracing Prison Reform"
The title of this post is the headline of this new commentary piece by Christian Piatt appearing in Time which includes a religious perspective as well as a political one. Much of the discussion will be familiar to regular readers, but here are a few excerpts of not:
Criminal sentencing certainly has been one of those divisive social issues among Christians, with many progressives calling for more leniency on nonviolent crimes, and conservatives embracing a “zero tolerance” ethos....
Only recently have the number of incarcerated people within our borders begun to decline, and it’s in part due to a shift in the way those who have championed a hard-nosed approach to sentencing are reframing their thinking. In some respects, the reasons are logistical and economic; for others, the change of heart is informed particularly by their understanding of scripture and the mandates of the Gospel....
[H]ere are four ideas around which Christians – and non-Christians – from both the left and right are coming together.
Reform makes good financial sense. ...
Reform reduces government’s role in our lives. ...
Second Chances are Biblical. ...
Thinking on “paying our debt to society” is shifting....
Warehousing nonviolent offenders is still big business in the United States, which means that people with significant influence are intent on keeping things more or less as they already are. And certainly not all on the political and religious right agree with the points above. But enough conservatives are breaking rank to begin to form coalitions with the center and left, so that real reform becomes an increasing possibility.
Thursday, July 10, 2014
Georgia Board of Pardons and Paroles grants execution eve clemency to witness killer
As reported in this Atlanta Journal-Constitution article, "hours before he was to be executed for a murder 23 years ago, Tommy Lee Waldrip was granted clemency." Here are the details:
The state Board of Pardons and Paroles made the rare decision to commute a condemned man’s sentence to life without parole Wednesday even as state and federal courts had turned down his appeals. Waldrip’s execution was set for 7 p.m. Thursday for the murder of Keith Evans, a college student who was about to testify against Waldrip’s son in a re-trial of an armed robbery case.
The board’s decision came several hours after members heard pleas for mercy from relatives, friends and Waldrip’s lawyers, and then from prosecutors and members of the Evans family who wanted the execution carried out.
The board does not give a reason for its decision. Members vote individually and only the chairman, who collects the ballots, knows how each one decided. The decision required a simple majority, three out of five members.
But one issue raised before the board was that the sentences for Waldrip, his son and Waldrip’s brother, all convicted of murdering Evans on April 13,1991, were not proportional. Prosecutors did not seek the death penalty against Howard Livingston, Waldrip’s brother, but they did in the cases against Tommy Lee Waldrip and his son John Mark Waldrip. The three men were tried separately. Only Tommy Lee Waldrip was sentenced to die. John Mark Waldrip and Livingston are serving life sentences....
This was the fifth time since 2002 that the board has commuted the sentence of a death row inmate. The most recent one was on April 12, 2012, when the board commuted the death sentence of Daniel Greene.
Notably, one of the recent cases in which the Georgia Board of Pardons and Paroles refused to grant clemency was the high-profile Troy Davis case. Notably, for those focused on racial dynamics in this context, it is perhaps notable that Tommy Lee Waldrip is white and that Daniel Greene is black. Ergo, since Troy Davis was denied clemency, the Georgia Board of Pardons and Paroles has granted clemency to one black and one white convicted murderer.
Split Michigan Supreme Court rejects retroactivity of Miller for hundreds of juve lifers
Though I am on the road and behind on a number of blogging fronts, a number of helpful readers made sure I did not miss an important state Miller application from Michigan. This local article, headlined "Michigan Supreme Court denies parole hearings to juvenile lifers," provides these basics:
The Michigan Supreme Court ruled 4-3 Tuesday that juveniles given automatic life-without-parole sentences aren’t eligible for parole — even though the U.S. Supreme Court decided in 2012 that such sentences were unconstitutional. The ruling involved three of what some estimates say are at least 350 Michigan “juvenile lifers” — the highest number in any state — who are seeking parole hearings....
A four-justice majority, in a decision written by Justice Stephen Markman, said the 2012 U.S. Supreme Court ruling does not apply retroactively to these Michigan inmates, under either federal or state court precedents.
Attorney General Bill Schuette, who has argued that parole for any of the juvenile lifers would be disrespectful to murder victims and heart-wrenching to their families, hailed the decision. “Today the Michigan Supreme Court upheld the rights of crime victims and their families,” he said....
Kary Moss, executive director of the American Civil Liberties Union of Michigan, called the decision “heartbreaking.”
“Here we have a practice that the U.S. Supreme Court has said violates the Eighth Amendment as cruel and unusual punishment ... yet the Michigan Supreme Court is unwilling ever to give the 350 juvenile lifers currently in Michigan’s prisons a parole hearing in their lifetime,” Moss said. She said the ACLU is reviewing its options for a further federal legal challenge. “We are not letting this issue drop,” Moss said....
Neither the Eighth Amendment nor the state Constitution “categorically bars the imposition of a sentence of life without parole on a juvenile homicide offender,” the court’s majority said.
Justices Mary Beth Kelly, Bridget Mary McCormack and Michael Cavanagh dissented and said the court should have ruled in favor of parole hearings. They noted that state lawmakers this year passed a juvenile sentencing law that “significantly altered Michigan’s sentencing scheme for juvenile offenders convicted of crimes that had previously carried a sentence of life without parole.”
Under the new law, judges can impose 40- to 60-year sentences in cases where prosecutors don’t ask for life-without-parole for murder and other heinous crimes....
The Michigan Catholic Conference said the decision is disappointing. “We call upon the Legislature to pass a measure that will allow for juveniles sentenced to a life term before the (2012 U.S. Supreme Court) decision to have the opportunity for a parole hearing at some point during their sentence,” said a statement issued by spokesman David Maluchnik....
State Rep. Joe Haveman called the Michigan Supreme Court’s ruling disappointing and said individuals incarcerated as juveniles “deserve a hearing to re-evaluate their case.”
“It is baffling how this can be considered equal treatment under the law,”said the Holland Republican. “I said before, and I still believe, that the Supreme Court of the United States needs to revisit this issue and clarify whether the intent was for their original ruling to apply retroactively. .... If a juvenile sentence without the opportunity for parole is cruel and unusual punishment going forward, it is also cruel and unusual punishment for those who entered prison as children, who don’t have even the faintest glimmer of hope that even if they completely change who they are, they will ever walk free. It is further cruel and unusual punishment for the judge who didn’t want to hand down a mandatory life sentence, and wanted to consider mitigating factors, but wasn’t allowed to, and now must live with the guilt of sending a child to prison for their entire adult life.”
The fully lengthy Michigan Supreme Court ruling in this matter runs 120+ pages and covers more ground than just Miller retroactivity. The full ruling is available at this link, and I hope to have a chance to blog about the substance of both the lengthy majority and dissenting opinions in the days and weeks ahead.
For now, I will simply assert that the Supreme Court no long has any good reason or justification for continuing to refuse to take up the issue of Miller retroactivity that has split state courts nationwide. Now that just about every state with a large number of mandatory juve LWOPers has ruled on this issue, this matter has plainly "percolated" more than sufficiently and the resulting jurisprudential split has profound consequences for many hundreds of juve lifers in many states.
A few (of many) prior posts on Miller retroactivity:
- Effective press review of some state responses to SCOTUS Miller ruling
- Terrific Stateline review of states' varied applications of and reactions to Miller
- A year after Miller confirmed kids are different, how may kids have different sentences?
- Another effective review of the messy Miller aftermath:
- In lengthy split opinion, Minnesota Supreme Court concludes Miller should not apply retroactively
- Split Pennsylvania Supreme Court rules that Miller does not apply retroactively
- Illinois Supreme Court deems Miller ruling substantive and thus retroactive
- Top Texas criminal court, in split ruling, decides Miller is to be applied retroactively
- When and how will SCOTUS take up Miller retroactivity issues?
- Noting SCOTUS continues to dodge (inevitable?) ruling on Miller retroactivity
Wednesday, July 09, 2014
Following the money behind sustaining pot prohibition
The Nation has this fascinating new investigative report with a headline and subheadline that highlights its themes: "The Real Reason Pot Is Still Illegal: Opponents of marijuana-law reform insist that legalization is dangerous — but the biggest threat is to their own bottom line." Here are excerpts from the start of a lengthy article:
Taking the stage to rousing applause last February, [Patrick] Kennedy joined more than 2,000 opponents of marijuana legalization a few miles south of Washington, DC, at the annual convention of the Community Anti-Drug Coalition of America (CADCA), one of the largest such organizations in the country....
Given that CADCA is dedicated to protecting society from dangerous drugs, the event that day had a curious sponsor: Purdue Pharma, the manufacturer of Oxy-Contin, the highly addictive painkiller that nearly ruined Kennedy’s congressional career and has been linked to thousands of overdose deaths nationwide.
Prescription opioids, a line of pain-relieving medications derived from the opium poppy or produced synthetically, are the most dangerous drugs abused in America, with more than 16,000 deaths annually linked to opioid addiction and overdose. The Centers for Disease Control and Prevention report that more Americans now die from painkillers than from heroin and cocaine combined. The recent uptick in heroin use around the country has been closely linked to the availability of prescription opioids, which give their users a similar high and can trigger a heroin craving in recovering addicts....
People in the United States, a country in which painkillers are routinely overprescribed, now consume more than 84 percent of the entire worldwide supply of oxycodone and almost 100 percent of hydrocodone opioids. In Kentucky, to take just one example, about one in fourteen people is misusing prescription painkillers, and nearly 1,000 Kentucky residents are dying every year.
So it’s more than a little odd that CADCA and the other groups leading the fight against relaxing marijuana laws, including the Partnership for Drug-Free Kids (formerly the Partnership for a Drug-Free America), derive a significant portion of their budget from opioid manufacturers and other pharmaceutical companies. According to critics, this funding has shaped the organization’s policy goals: CADCA takes a softer approach toward prescription-drug abuse, limiting its advocacy to a call for more educational programs, and has failed to join the efforts to change prescription guidelines in order to curb abuse. In contrast, CADCA and the Partnership for Drug-Free Kids have adopted a hard-line approach to marijuana, opposing even limited legalization and supporting increased police powers.
A close look at the broader political coalition lobbying against marijuana-law reform reveals many such conflicts of interest. In fact, the CADCA event was attended by representatives of a familiar confederation of anti-pot interests, many of whom have a financial stake in the status quo, including law enforcement agencies, pharmaceutical firms, and nonprofits funded by federal drug-prevention grants....
The opponents of marijuana-law reform argue that such measures pose significant dangers, from increased crime and juvenile delinquency to addiction and death. But legalization’s biggest threat is to the bottom line of these same special interests, which reap significant monetary advantages from pot prohibition that are rarely acknowledged in the public debate....
[B]oth CADCA and the Partnership for Drug-Free Kids are heavily reliant on a combination of federal drug-prevention education grants and funding from pharmaceutical companies. Founded in 1992, CADCA has lobbied aggressively for a range of federal grants for groups dedicated to the “war on drugs.” The Drug-Free Communities Act of 1997, a program directed by the White House Office of National Drug Control Policy, was created through CADCA’s advocacy. That law now allocates over $90 million a year to community organizations dedicated to reducing drug abuse. Records show that CADCA has received more than $2.5 million in annual federal funding in recent years. The former Partnership for a Drug-Free America, founded in 1985 and best known for its dramatic “This is your brain on drugs” public service announcements, has received similarly hefty taxpayer support while advocating for increased anti-drug grant programs.
The Nation obtained a confidential financial disclosure from the Partnership for Drug-Free Kids showing that the group’s largest donors include Purdue Pharma, the manufacturer of OxyContin, and Abbott Laboratories, maker of the opioid Vicodin. CADCA also counts Purdue Pharma as a major supporter, as well as Alkermes, the maker of a powerful and extremely controversial new painkiller called Zohydrol. The drug, which was released to the public in March, has sparked a nationwide protest, since Zohydrol is reportedly ten times stronger than OxyContin. Janssen Pharmaceutical, a Johnson & Johnson subsidiary that produces the painkiller Nucynta, and Pfizer, which manufactures several opioid products, are also CADCA sponsors. For corporate donors, CADCA offers a raft of partnership opportunities, including authorized use of the “CADCA logo for your company’s marketing, website, and advertising materials, etc.”
"States Push For Prison Sentence Overhaul; Prosecutors Push Back"
The title of this post is the headline of this new NPR story highlighting who is at the forefront of efforts to thwart sentencing reforms these days. Here are excerpts:
Some red states like Louisiana and Texas have emerged as leaders in a new movement: to divert offenders from prisons and into drug treatment, work release and other incarceration alternatives. By most counts, Louisiana has the highest incarceration rate in the country. In recent years, sentencing reformers in the capital, Baton Rouge, have loosened some mandatory minimum sentences and have made parole slightly easier for offenders to get.
But as reformers in Louisiana push for change, they're also running into stiffening resistance — especially from local prosecutors. It's all happening as the number of Americans behind bars has started to decline. There are multiple reasons for that, including crime rates that have been dropping since the 1990s, as well as the impact of the Supreme Court's 2011 requirement that tough-on-crime California reduce its prison population.
And there's another factor: a growing bipartisan consensus for sentencing reform. Local politicians are getting political cover for those efforts from conservative groups like Right on Crime. "It is a growing consensus on the right that this is the direction we want to be going," says Kevin Kane, of the libertarian-leaning Pelican Institute for Public Policy in Louisiana. "Most people will point to, 'Well, it's saving money, and that's all conservatives care about.' But I think it goes beyond that."
Kane says libertarians are interested in limiting the government's power to lock people away, while the religious right likes the idea of giving people a shot at redemption — especially when it comes to nonviolent drug offenders.
Still, not everyone is embracing these ideas. In some places, there's been considerable pushback — especially when the idea of eliminating prison time for drug offenders arises....
Liz Mangham, a lobbyist, has represented the conservative sentencing reformers in Baton Rouge. While they've made progress, she says they appeared to cross a red line this spring with a bill to step down Louisiana's stiff penalties for possession of marijuana. Under current law, possession is a felony on the second offense. A third may get you as much as 20 years in prison. Mangham recalls the scene when the bill came up for a crucial hearing.
"The Judiciary Committee room was full. The anteroom across the hall, which is twice the size, was full, and the halls were full ... of [district attorneys] and sheriffs coming down to oppose the bill," she says. The bill died on the spot. In Louisiana and other parts of the South, district attorneys and sheriffs — who Mangham calls "the courthouse crowd" — have a lot of political clout at the state level. She says it's understandable why most sheriffs opposed the bill, because they house state prisoners in parish jails and every prisoner represents a payment from the state.
"So when you're making money to warehouse prisoners, why on earth would you be in favor of sentencing reform?" Mangham says.
But the district attorneys' opposition is more complex — and interesting. And it's emblematic of a growing conflict that's taking place nationally between sentencing reformers and prosecutors.
The vast majority of criminal cases in America are resolved through plea bargains. Defendants plead guilty out of fear of getting a worse sentence if they don't. Plea bargains jumped above 90 percent in the 1980s and '90s, in part because a wave of harsh new sentences for drug offenses strengthened prosecutors' hands when bargaining with defendants.
"For a DA to have the ability to dangle over someone's head 10, 20 years in jail, that provides them with tremendous leverage to pretty much get whatever they want," says Louisiana State Sen. J.P. Morrell, a Democrat from New Orleans and former public defender.
Morrell was one of the sponsors of the marijuana sentencing reform bill that failed in Baton Rouge. He says one of the benefits of that reform would have been a reduction in the power of prosecutors to, as Louisiana courthouse slang puts it, "bitch" a defendant. A reference to Louisiana's habitual offender law, it refers to a DA threatening to use past convictions — often for marijuana possession — to multiply the length of a defendant's potential sentence.
But what Morrell sees as a problem, prosecutors regard as a necessary tool. That's because many states are now considering similar reductions to mandatory minimum sentences for drug offenses, and Congress is considering a similar move for federal drug charges. Prosecutors insist they use the threat of harsh sentences responsibly but say it's a tool they can't do without. Last fall, at a hearing in the U.S. Senate Judiciary Committee, the then-executive director of the National District Attorneys Association, Scott Burns, warned against rolling back drug sentences.
"Why now? With crime at record lows, why are we looking at sweeping changes?" Burns said. He endorsed "smart on crime" reforms such as drug courts, but he cautioned against depriving prosecutors of "one of our most effective sticks."
John de Rosier, the district attorney of Calcasieu Parish, La., says "we have people all the time that we know have been involved in robberies, rapes and murders. We haven't been able to prove our cases, but we're in court with them for second-offense possession of marijuana. What do you think we're going to do?"
That's commonly referred to as "prosecutorial discretion," and it's an argument that alarms sentencing reformers like Morrell. "That level of discretion ought to be terrifying to people," Morrell says. "If you cannot convict someone of a murder, of a robbery, whatever, the fact that you have a disproportionate backup charge to convict them anyway kind of defeats the purpose of due process."
Tuesday, July 08, 2014
Senators Paul and Booker introducing another important bipartisan CJ reform bill
As reported in this new Washington Post column, a pair of "freshmen senators eager to expand their national profiles are teaming up to introduce a comprehensive overhaul of the nation's criminal justice system that they say will cut government spending and help make it easier for nonviolent criminals to eventually secure a job." Here are the exciting details:
The proposals set to be unveiled Tuesday by Sens. Cory Booker (D-N.J.) and Rand Paul (R-Ky.) are unlikely to advance this year, but address a series of policy and political priorities for both senators. Booker previously served as mayor of Newark and has made the fate of inner city youth a key part of his public service. Partnering with Paul continues Booker's pattern of seeking out Republicans to work with as he casts himself as a bipartisan broker ahead of his election campaign in November for a full term.
Paul has openly discussed running for president in 2016 and has talked regularly about his concern that the nation's prisons are overcrowded with people serving excessive sentences for minor crimes. Such concerns are a key element of his libertarian-leaning philosophy and further cast him as a Republican eager and willing to cross the aisle -- and visit the nation's urban centers -- to seek out policy solutions and gain supporters in areas of the country often ignored by Republicans.
Most of all, aides say the legislation addresses a common concern for Booker and Paul: That the United States accounts for just 5 percent of the world's population, but a quarter of the world's prison population.
The REDEEM Act proposal would encourage states to raise the age of criminal responsibly to 18 years of age; expunge or seal the records of juveniles who commit non-violent crimes before they turn 15; place limits on the solitary confinement of most juveniles; and establish a system to allow eligible nonviolent criminals to petition a court to ask that their criminal records be sealed. Sealing the records would keep them out of FBI background checks requested by employers and likely make it easier for those former offenders to secure a job.
Currently 10 states set the age at which someone can be tried in adult criminal court below 18, a move that the senators said in their statement "sends countless kids into the unforgiving adult criminal system." In hopes of reversing the trend, Booker and Paul propose giving states that change the minimum age preference when applying for federal community police grants. The same preference would be given to states that allow nonviolent offenders to petition to have their criminal records sealed. Once the records are sealed, an offender could lawfully claim that their records don't exist.
Booker said in a statement that the legislation "will ensure that our tax dollars are being used in smarter, more productive ways. It will also establish much-needed sensible reforms that keep kids out of the adult correctional system, protect their privacy so a youthful mistake can remain a youthful mistake, and help make it less likely that low-level adult offenders re-offend."
Paul said, "The biggest impediment to civil rights and employment in our country is a criminal record. Our current system is broken and has trapped tens of thousands of young men and women in a cycle of poverty and incarceration."...
The fate of the REDEEM Act is unclear since most legislation introduced this year has failed to advance beyond the committee level, especially in the Senate, where years-long personality-driven disputes over procedure and fiscal policy have essentially driven the chamber to a halt.
But the new proposals help build out the policy portfolios for both senators. Paul unveiled a plan last month that would restore voting rights for nonviolent felons in federal elections. Booker and Sen. Tim Scott (R-S.C.) introduced a proposal in April that would help create hundreds of thousands of jobs for younger Americans, especially minorities struggling to find work.
Some recent and older related posts:
- Federal sentencing reform: an unlikely Senatorial love story and a Booker double-dose?
- Is it too early want the new Senator from NJ to get going on sentencing reform?
- Senators Paul and Booker celebrate Festivus with sentencing and drug war reform tweeting
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
July 8, 2014 in Elections and sentencing issues in political debates, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (1) | TrackBack
Notable Third Circuit discussion of revocation of supervised release standards
Hard-core federal sentencing fans eager for some extended summer beach reading should check out today's Third Circuit panel decision in US v. Thornhill, No. 13-2876 (3d Cir. July 8, 2014) (available here). The key facts of the case alone take the Third Circuit more than 15 pages to recite, but the start of the majority opinion efficiently spotlights the legal issue that thereafter gets resolved:
In 1984, Congress enacted the Sentencing Reform Act, a measure which profoundly “revise[d] the old sentencing process.” Mistretta v. United States, 488 U.S. 361, 367 (1989). One of the reforms effected by the Act was the elimination of special parole and the establishment of a “new system of supervised release.” Gozlon-Peretz v. United States, 498 U.S. 395, 397 (1991). The “new system” was codified in 18 U.S.C. § 3583, and included a provision at subsection (g) which mandates the revocation of supervised release and the imposition of a term of imprisonment under certain enumerated circumstances. 18 U.S.C. § 3583(g).
The question we consider is: once § 3583(g)’s mandatory revocation provision is triggered, what guides a district court’s exercise of discretion in determining the length of the defendant’s term of imprisonment? We conclude that this exercise of discretion is guided by the sentencing factors set forth in 18 U.S.C. § 3553(a).
I do not think there is much groundbreaking in the legal analysis in Thornhill, though a partial dissent by Judge Rendell adds intrigue to the ruling. Here are key paragraphs from the start and ends of the six-page dissent:
I part ways with the majority’s disposition, however, because I would remand so that the District Court can meaningfully consider those sentencing factors in connection with the mandatory imprisonment of Ms. Thornhill upon revocation of her supervised release. The length of her term of imprisonment is squarely at issue, and the § 3553(a) factors should be weighed. This is especially true because the District Court varied upward in giving Ms. Thornhill a sentence of three years....
We simply cannot know how meaningful consideration of the § 3553(a) factors, which we now require, would have affected Ms. Thornhill’s sentence. Speculation on our part as to what the Court might have been considering, and whether those reasons coincide with § 3553(a), cannot be enough to uphold Ms. Thornhill’s above-guidelines sentence. In short, Ms. Thornhill deserves to have the rule announced today applied to her case. I respectfully dissent from the majority’s disposition.
Saturday, July 05, 2014
High-profile ex-con (who is also an ex-Gov) eager to keep pushing for death penalty abolition
As reported in this AP article, headlined "Ex-Illinois governor Ryan wants to continue anti-death penalty work," the death penalty abolitionist community now has another high-profile advocate newly free to preach the gospel. Here are some excerpts from an interesting article:
George Ryan, an ex-Illinois governor and now an ex-convict, says he’d like to re-engage with the cause he left behind when he went to prison in 2007 — campaigning for the end of the death penalty in the U.S. “Americans should come to their senses,” Ryan said this week, in an hourlong interview at his kitchen table.
Newly free to speak after a year of federal supervision that followed his more than five years in prison for corruption, Ryan appeared to have recovered some of his old voice and feistiness, in contrast to the subdued figure that emerged a year ago from the federal penitentiary in Terre Haute, Ind., and ducked briefly into a Chicago halfway house.
At his home in Kankakee, south of Chicago, the Republican, 80, held forth on capital punishment, the state of American politics and the criminal justice system — though not the difficult details of his own corruption case.
He said he’d like to spend some time on the national circuit to encourage other states to follow Illinois’ lead in abolishing capital punishment. That move came in 2011 and stemmed from Ryan’s decision to clear death row in 2003. While he was treated as a champion by death penalty opponents at the time, he acknowledged some public figures now may have trouble openly associating with him. “I’m an ex-convict,” he said. “People tend to frown on that.”
Ryan, who was governor from 1999 to 2003, was indicted in 2003 and convicted in 2006 on multiple corruption counts, including racketeering and tax fraud. He said he does not plan to discuss the details of the criminal case — to which he always maintained his innocence — though he might in an autobiography he is writing....
He also lashed out at the U.S. justice system, calling it “corrupt” and bluntly contending that the fervor with which he was prosecuted was due in part to his nationally prominent campaign to end the death penalty. “It put a target on my back when I did what I did,” he said, adding that even prison guards derided and mocked him. “It certainly didn’t win me any favor with the federal authorities.”
It’s unclear whether Ryan’s re-emergence on the public scene will be welcomed. But at least one former federal prosecutor balked at Ryan’s contention that he may have been singled out because of his death penalty stance. “It’s absurd,” said Jeff Cramer, a former U.S. attorney in Chicago, noting that four of Illinois’ last seven governors have gone to prison. “It wasn’t his political stand that made him a target. It is what he did. ... He’s trying to rewrite history.”...
[Ryan] also expressed some sympathy for his Democratic successor, Rod Blagojevich, saying the 14-year prison sentence the former governor is serving in Colorado for trying to sell President Barack Obama’s old Senate seat and other pay-to-play schemes was excessive. The sentence is under appeal. “I wasn’t a fan” of Blagojevich, he said. “Irrespective, his sentence was out of line.”
But Ryan displayed the most passion while discussing capital punishment. Once a fervent advocate of the death penalty, he said he agonized about approving the last execution in Illinois before he issued a ban in 2000. “I killed the guy,” he said of the man who had raped, kidnapped and murdered a 21-year-old Elmhurst woman. “You can’t feel good about that.”
As he contemplated commuting all death sentences in 2003, he said he felt increasing pressure not to do it, including from one influential politician whom he remembers asking him directly not to spare one man convicted of murdering a friend’s daughter. After the commutations, Ryan said the politician never spoke to him again.
Thursday, July 03, 2014
Hawaii legislatively eliminates all juve LWOP sentences for all crimes
As reported in this AP piece, headlined "Hawaii ends juvenile life sentences without parole," a new piece of legislation means and and all "life sentences without parole for minors are now abolished in Hawaii." Here are the basics:
Gov. Neil Abercrombie signed a bill Wednesday recognizing that children convicted of first-degree murder should be treated differently than murderous adults.
Advocates say children are impressionable and sometimes can't get out of horrific, crime-ridden environments. Honolulu prosecutors argued the measure isn't fair to people who are born weeks apart from slightly younger perpetrators of the same crime.
July 3, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Fascinating suggestion of "Mitt Romney for drug czar"
The always brilliant and provocative lawprof Mark Osler has this brilliant and provocative new commentary in the Detroit News headlined "Mitt Romney for drug czar." Here is how it starts:
In a series of public appearances, Detroit native Mitt Romney has planted the idea that he might run for president again in 2016. He should resist the idea; that day has passed.
Instead, Romney should apply his experience and passion to public service in a different way: The Mitt Romney who founded Bain Capital and saved the Utah Winter Olympics should be Drug Czar, and use his financial acumen to destroy the narcotics trade without mass incarceration.
In the run-up to the 2012 presidential election, Mitt Romney was celebrated (by Republicans) and eviscerated (by Democrats) for his vocation: building up and tearing down businesses. Regardless of how one views the social utility of this enterprise, no one can dispute that Romney is a smart, passionate, well-educated man who loves public service and was very good at what he did while working for Bain Capital.
Romney’s availability matches up with a special moment for narcotics policy. There is a broad right-left consensus that the stale tactics of the war on drugs failed miserably. It wasted billions of dollars in taxpayer money while failing to limit drug use. Meanwhile, millions of Americans went to prison, and a disproportionate number of them were black thanks to harsh new laws focused on crack cocaine. There was something to offend everyone.
I like this idea sooooo much, I really wonder if it could possibly get any legs inside the Beltway. On all modern drug crime and punishment issues — ranging from marijuana reform in the states to the surge of addiction to opiods and heroin to the reduction of federal drug sentences — the country really needs to widely respected "numbers guy" who could bring a clear-headed business perspective to analyzing the pros and cons of various suggested policy initiatives. I would trust Mitt Romney to be that guy as much, if not more, than just about anyone else President Obama might place in this role.
Wednesday, July 02, 2014
"Into the Breach: The Case for Robust Noncapital Proportionality Review Under State Constitutions"
The title of this post is the title of this notable piece authored by Samuel Weiss now available via SSRN. Here is the abstract:
The Eighth Amendment forbids cruel and unusual punishments. The Supreme Court has found in the Amendment a guarantee that punishment be proportionate to the crime. Although the requirement technically applies equally to all punishment, in practice the Court has used the guarantee strictly to regulate capital punishment — a practice it recently extended to life without parole sentences for juveniles — but has abdicated almost entirely on noncapital sentences.
States have authority to regulate excessive punishment under their state constitutions, but most have chosen to interpret their state proportionality clauses in lockstep with the Eighth Amendment. Even the states that have found greater protection in their constitutions have done so cautiously, striking down only the rare sentence so absurd that the legislature could not possibly have intended the result.
This Note suggests that states should aggressively police the proportionality of noncapital sentences under their state constitutions. Part I discusses extant noncapital proportionality, both the United States Supreme Court’s Eighth Amendment doctrine and states’ responses to either heighten standards of review or to march in lockstep with the Court. Part II discusses the primary basis for state courts’ failure to regulate proportionality — that regulating sentences would be intervening into legislative judgment of retributive fit — and its deep flaws. State courts ignore that criminal codes bear little relation to actual crime and punishment — criminal liability is so broad and sentences so punitive that legislatures have essentially delegated decisions on criminality and sentence length to prosecutors. Prosecutors, in turn, routinely deliver disproportionate sentences because prosecutors are local political actors who push the actual costs of incarceration onto state governments; because the public pushes for ever-harsher sentences; and because prosecutors deliver trial penalties to defendants who refuse to plead guilty. Much of the Supreme Court’s cautiousness comes from its broader fear about intervention in state criminal justice systems; this fear is legitimate but should carry no weight with state courts, which are part of state criminal justice systems. Part III addresses the remaining arguments against aggressive state proportionality review — that states should interpret their parallel provisions in the same manner as the federal provision and that judges are institutionally incompetent to make decisions about comparative blameworthiness. The Note concludes that states should use their constitutions to pursue aggressive noncapital proportionality review.
Tuesday, July 01, 2014
Significant (but unpublished!?!) Sixth Circuit ruling finding Lafler prejudice despite defendant's claims of innocence
The Sixth Circuit just released an interesting and important ruling in Sawaf v. US, No. 13-5620 (6th Cir. June 30, 2014) (available here), which grants a white-collar defendant relief based on ineffective assistance of counsel at plea-bargaining based in part on the Supreme Court's recent Sixth Amendment jurisprudence in this area. Here are passages from the Sawaf opinion, which in part highlight why I think this ruling is significant (despite being "unpublished"):
In 2001, Dr. Sawaf, a medical doctor specializing in the practice of urology, was charged with multiple counts of unlawful drug distribution for prescribing narcotic pain medications without a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1). It is undisputed that, prior to trial, the Government offered Sawaf a plea bargain that would have resulted in a significantly reduced prison sentence of 41 months instead of the 235-293 month term of imprisonment he would likely receive under the applicable U.S. Sentencing Guidelines if convicted at trial. Upon the advice of his attorney, Sawaf rejected the Government’s plea offer and proceeded to trial, unsuccessfully, where he was convicted and ultimately received a prison sentence of 240 months....
After a careful review of the evidence, the district court found that Sawaf’s attorney had indeed failed to advise him about the applicable sentencing guidelines at any time prior to his trial, resulting in “objectively unreasonable and constitutionally ineffective” assistance of counsel at the pre-trial stage of the proceedings....
Although the district court acknowledged the general presumption of prejudice “created by the significant disparity between the plea offered and the ultimate sentence” that Sawaf received, it nonetheless concluded that Sawaf was not entitled to relief because he had failed to show that he would have accepted the Government’s plea offer but-for his counsel’s ineffectiveness.... [T]he district court determined that Sawaf’s claim that he would have entered a guilty plea if adequately informed was not credible, given Sawaf’s continued insistence that he was innocent, prior to and during the trial, after the trial, and even during the evidentiary hearing, and effectively declined to credit Sawaf with the applicable presumption of prejudice."...
Given Sawaf’s unrelenting insistence as to his innocence, the district court was understandably reluctant to credit Sawaf’s self-serving claim at the evidentiary hearing that he would have pleaded guilty under different circumstances. As the district court emphasized in its opinion, Sawaf’s continued declarations of innocence at the evidentiary hearing undermined the plausibility of his assertion that he would nonetheless have pleaded guilty if he had been properly informed as to the possible consequences of proceeding to trial. On the other hand, to conclude that this information would have had no impact on Sawaf’s decision-making process would undercut the very reasoning for the Supreme Court’s recognition that the Sixth Amendment right to counsel during the plea-bargaining process includes the right to be informed by counsel as to the range of penalties under the applicable guidelines. Lafler, 132 S. Ct. at 1384.... After all, the existence of that right is necessarily rooted, at least in part, in our general understanding that the discrepancy between the punishment resulting from a plea agreement and that which would result from a trial conviction is an important factor that the defendant is entitled to consider in his decision-making process.
More importantly, however, we have consistently declined to conclude that a defendant’s “repeated declarations of innocence” alone preclude the possibility that the defendant would have entered a guilty plea if he had been aware of the consequences of proceeding to trial.... In light of these cases, we are compelled to conclude that Sawaf’s continued insistence as to his innocence does not foreclose the possibility that he would have been willing to enter a guilty plea in exchange for a 41-month sentence, despite his proclaimed innocence, if he had known about the risk that he might otherwise receive a 20-year sentence. Put simply, Sawaf’s claim that he is innocent does not conclusively establish that there is no “reasonable probability” that his decision would have been different if he had been adequately informed about its consequences.
I am eager to praise the Sixth Circuit for this notable application of Lafler and its unwillingness to sting the defendant here yet again for maintaining his innocence. But I am also a bit annoyed that this seemingly significant ruling is being left unpublished. Fortunately, in this digital age, even unpublished opinions can be found and heralded, and I am grateful to a helpful reader who made sure I did not miss this one.
Monday, June 30, 2014
Ninth Circuit sorts out federal case of CJA payment delayed, then CJA representation denied
It is often said that justice delayed is justice denied. An interesting ruling today from the Ninth Circuit in US V. Tillman, No. 13-10131 (9th Cir. June 30, 2014) (available here), work through what happens when Criminal Justice Act payment is delayed and that leads to CJA representation being denied. Here is the start of the panel opinion in Tillman, which ends up being more about the actions and standing of Tillman's CJA-appointed lawyer rather than the criminal defendant:
This case highlights the tension between judicial efforts to control costs of appointed counsel, the defendant’s constitutional right to have counsel appointed, counsel’s reliance on timely payment of Criminal Justice Act (“CJA”) vouchers, and the delays often present in processing vouchers for payment. In this unusual interlocutory appeal, John R. Grele and his former client, Markette Tillman, appeal an order removing Grele as counsel, sanctioning him, and referring him to the California State bar for disciplinary proceedings. Under Flanagan v. United States, 465 U.S. 259 (1984), we lack jurisdiction over Tillman’s claim that counsel was improperly removed. The removal order is nonfinal and not immediately appealable; Tillman has the opportunity to raise this issue on direct appeal, if there is one. Grele’s petition as to the sanctions order presents a different question, however, because the improper sanctions order not only had an immediate impact on Grele but continues to affect his professional reputation as learned counsel in capital proceedings. We conclude that mandamus jurisdiction is appropriate to consider the sanctions order, that the district court erred in imposing sanctions without notice and a hearing, and that the order should be vacated.
Could part of Hobby Lobby "havoc" include new RFRA challenges to federal drug laws and their regulatory enforcement?
I am not an expert on religious freedom doctrines or on interpretations of Religious Freedom Restoration Act of 1993 (RFRA). But my cursory understanding of the basics of the Supreme Court's big ruling today in Burwell v. Hobby Lobby Stores, Inc., No. 13-354 (S. Ct. June 30, 2014) (available here) is that SCOTUS has now given RFRA a (much?) broader reach and interpretation than the First Amendment's Free Exercise Clause and has concluded that a corporation must have its sincere religious objections to a health-care regulation better accommodated for that regulation to comply wit RFRA. Not surprisingly, the Justices in dissent express concern about this ruling, and I especially was struck by these passages from the start of Justice Ginsburg's dissent:
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. See ante, at 16–49. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.”....
In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith.... Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.
Legal scholars and pundits will no doubt be picking apart the Hobby Lobby ruling with a view toward its political, policy and practical impact with respect to any number of federal civil laws. But, as the question in the title of this post suggests, I am already wondering if the Hobby Lobby ruling could end up having an impact on federal criminal laws, in particular drug laws.
Notably, in his Hobby Lobby concurrence, Justice Kennedy highlights that the "American community is today ... a rich mosaic of religious faiths," and says religious freedom must be understood to mean "the right to express [religious] beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community." I am pretty sure there are more than a few religious groups (some well-established, other not-so-much) that sincerely claim that certain types of drug use plays a role in their members' "self-definition in the political, civic, and economic life of our larger community." In the wake of Hobby Lobby's ruling that sincere religious beliefs now thanks to RFRA justify an opt-out from general laws, I wonder if more folks might have more opportunities to press claims in federal court that their religious beliefs must allow opt outs from federal criminal drug laws.
Sunday, June 29, 2014
Can and should California's enduring CJ problems be blamed on those who've long opposed a state sentencing commission?
The question in the title of this post is part of my take-away from an engaging and spirited debate with Bill Otis and others that I participated in here over at Crime & Consequences. The debate began when Bill highlighted this disconcerning recent Los Angeles Times article highlighting that prison reforms in California under Gov. Jerry Brown's realignment plans have not been working out as well as Gov. Brown promised and everyone else might have hoped. Here is an extended passage from the LA Times article:
Nearly 15 months after launching what he called the "boldest move in criminal justice in decades," Gov. Jerry Brown declared victory over a prison crisis that had appalled federal judges and stumped governors for two decades. Diverting thousands of criminals from state prisons into county jails and probation departments not only had eased crowding, he said, but also reduced costs, increased safety and improved rehabilitation....
The numbers tell a different story. Today, California is spending nearly $2 billion a year more on incarceration than when Brown introduced his strategy in 2011. The prisons are still overcrowded, and the state has been forced to release inmates early to satisfy federal judges overseeing the system....
Counties, given custody of more than 142,000 felons so far, complain that the state isn't paying full freight for their supervision. Many jails are now overcrowded, and tens of thousands of criminals have been freed to make room for more. "The charts are sobering," Senate Public Safety Committee Chairwoman Loni Hancock (D-Berkeley) said at a hearing this year on crime, prison costs and inmate numbers....
In theory, the state would reduce its prison population and save money [through realignment]. Local authorities would take a more active role in rehabilitation and parole — an approach Brown saw as more efficient and effective. "You have to take care of your own," said Diane Cummins, Brown's special advisor on realignment.
The reality, however, is that realignment fell short of Brown's promised achievements. The prison population fell sharply at first, dropping from 162,400 to 133,000, but it is rising again. There now are 135,400 inmates in state custody, a number expected to grow to 147,000 in 2019.
The state Finance Department originally projected that realignment would reduce prison spending by $1.4 billion this fiscal year and that about two-thirds of that savings would be passed on to counties to cover the costs of their new charges. Instead, the state's increased costs for private prison space and the compensation it pays out for county jails, prosecutors and probation departments adds up to about $2 billion a year more for corrections than when Brown regained office.
Without stemming the flow of prisoners into the system, the problems created by crowding continue. The Little Hoover Commission, an independent state agency that investigates government operations, said in a May report that realignment simply "changed the place where the sentence is served."
One of the biggest effects of realignment is that state and local authorities are releasing inmates early. From October 2011 to June 2013, California jail releases increased by 45,000, according to state data. The biggest rise has been a doubling in the number of inmates freed before doing half their time.... Although there is no hard proof, politicians, researchers and law enforcement officials are debating whether realignment is behind a recent 8% rise in property crime, reversing years of decline.
Brown's advisors counter that freeing jail inmates is safer than releasing state prisoners. But that too is happening. Under federal orders, the state in April and May freed a total of more than 800 prisoners.
Not surprisingly, the tough-on-crime crowd over at C&C is eager to blame these less-than-positive developments on Gov. Brown and/or the democrats in the California legislature and/or the judges and Justices who declared California's overstuffed prisons to be unconstitutional. But, notably, it was this same tough-on-crime crowd that vehemently opposed and effectively blocked efforts to create a California sentencing commission to deal proactively and smartly with these enduring problems before they became so acute that federal court intervention was required. Here is a listing from this blog of some posts noting the debate over creating a sentencing commission in California stretching back to 2006:
- Might California finally create a sentencing commission? (Nov 2006)
- A push for a sentencing commission in California (Jan 2007)
- Advocating a sentencing commission for California (June 2007)
- California sentencing commission complications (Sept 2007)
- Possibility of California sentencing commission continues to generate controversy (Aug 2009)
- Latest legislative twist suggests California won't have a sentencing commission anytime soon (Aug 2009)
Among other realities, a review of this history shows former California Gov. Arnold Schwarzenegger, pushed by police chiefs and district attorneys, initially opposed the creation of a sentencing commission in 2007. But, by 2009, as the state's ensuring prison problems became even more acute and as consequential federal court orders became even more likely, Gov. Schwarzenegger came to recognize the desparate need for California to have an institution that could bring a data-driven "smart" approach to CJ reform in the state. Nevertheless, continued advocacy against any commission by the tough-and-tougher crowd in California ultimately precluded (and seemingly still precludes) the creation of such an entity in California.
I do not mean to assert that all would be sunshine and roses in the challenging regulatory state of California if a sentencing commission had been created in 2007 or 2009. But I do mean to assert that those eager to attack Gov. Brown and/or legislators who have struggled to deal with post-Plata reforms should, at the very least, acknowledge that proponents of a California sentencing commission asserted that the such a commission would have dealt better with prison challenges (and maybe even would have prevented Plata from happening). In other words, those assailing current developments should at least explain why those who advocated commission-driving smarter policy rather than tougher politics back in 2007 or 2009 would be misguided to assert that the tough-and-tougher crowd in California is arguably most responsible for the current California mess.
Saturday, June 28, 2014
Despite ugly execution, Oklahomans still strongly support death penalty
The new article from the Tulsa World, headlined "Most Oklahomans strongly favor death penalty, poll shows," highlights that public opinion has not turned against the death penalty in Oklahoma in the wake of the state's recent struggles with lethal injection. Here are the details:
Most Oklahomans favor the death penalty and find it “morally acceptable,” although a smaller percentage think it deters crime, according to a new Oklahoma Poll. About 74 percent of those surveyed said they favored the death penalty for those convicted of murder. That figure includes about 23 percent of respondents who said they “somewhat favor” the death penalty.
Support for the death penalty is higher in Oklahoma than in the nation as a whole. A 2013 Gallup poll found that 60 percent of Americans favored the death penalty. The national number has declined from a peak of 80 percent support in 1994.
The state also has a higher proportion of conservatives, who tend to favor the death penalty in greater numbers than the nation as a whole. Nearly 83 percent of Oklahoma Poll respondents who identified themselves as conservative said they favored the death penalty. Only about 12 percent of respondents in the Sooner Poll said they “strongly oppose” the death penalty. However, that figure varied with respondents’ age. Almost 40 percent of people from 18 to 44 years old said they opposed the death penalty, while less than 18 percent of those 65 and older were opposed.
The botched April 29 execution of Clayton Lockett apparently did little to influence views on the death penalty, according to the poll results. Nearly 70 percent said the execution did not cause them to begin questioning their views on the death penalty. People younger than 45 were more likely to say Lockett’s execution has influenced their views....
Of those Oklahomans surveyed, only 37 percent said they strongly agreed that the death penalty serves as a deterrent to crime. Nearly 22 percent surveyed said they strongly disagreed with that statement, indicating that at least some respondents support the death penalty even if they don’t believe it deters crime....
Almost 70 percent of Oklahomans polled said they believed the death penalty was “morally acceptable” regardless of whether they thought it should be legal, according to the poll. About 20 percent said they viewed it as “morally wrong.”
A majority of those polled — 58 percent — said lethal injection was the most humane method of execution, compared to 10 percent who favored firing squad. About 9 percent favored the electric chair, and 5 percent advocated for hangings.
Friday, June 27, 2014
"Managing Prisons by the Numbers: Using the Good-Time Laws and Risk-Needs Assessments to Manage the Federal Prison Population"
The title of this post is the title of this timely and valuable new article available via SSRN authored by Paul J. Larkin Jr. of The Heritage Foundation. Here is the abstract:
The criminal justice system directs actors to make predictions about an offender’s likely recidivism. Today, many criminal justice systems use some form of a risk-needs assessment as a classification tool at various stages of the criminal process, especially when deciding where a particular offender will be housed or whether he should be granted credit toward an early release.
Research has shown that risk-needs assessments have valuable predictive power and therefore can be worthwhile tools for making the myriad predictions needed in the federal criminal justice system. Yet, risk-needs assessments also are controversial. Some commentators have criticized them on the ground that they offend equal protection principles.
The Public Safety Enhancement Act (PSEA) and the Recidivism Reduction and Public Safety Act (RRPSA) attempt to navigate the path toward criminal justice reform by directing the Attorney General to study the value and legality of risk-needs assessments. Legislators who choose to pursue correctional reform by revising the back end of the process would find that the PSEA and the RRPSA are valuable efforts to improve the system.
I have been hopeful (but not confident) that the distinct efforts at federal sentencing and corrections reform found in the PSEA and the RRPSA would not get lost in the discussion and debate over the Smarter Sentencing Act. But I keep fearing that controversy over the type of front-end reform involved in the SSA has tended to eclipse the (arguably more pressing and consequential) back-end reforms developed in the PSEA and the RRPSA. I hope this piece help folks continue to appreciate the need and value of both types of reform in the federal system.
June 27, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
New York Times op-ed laments Kettle Falls 5 federal marijuana prosecution
I am pleased to see the op-ed pages of the New York Times giving attention to a remarkable federal drug prosecution mving forward in Washington state. This foreceful commentary by Timothy Egan, headlined "Lock ’Em Up Nation: Mandatory Sentencing for Medical Marijuana," includes these passages:
[In] ruggedly beautiful, financially struggling eastern third of Washington State ... 70-year-old Larry Harvey, his wife, two family members and a friend are facing mandatory 10-year prison terms for growing medical marijuana — openly and, they thought, legally — on their farm near the little town of Kettle Falls.
To get a sense of the tragic absurdity of this federal prosecution, reaching all the way to the desk of Attorney General Eric H. Holder Jr., consider what will happen next month. Pot stores will open in Washington, selling legal marijuana for the recreational user — per a vote of the people. A few weeks later, the Feds will try to put away the so-called Kettle Falls Five for growing weed on their land to ease their medical maladies....
Harvey is a former long-haul truck driver with a bad knee, spasms of gout and high blood pressure. He says he has no criminal record, and spends much of his time in a wheelchair. His wife, Rhonda Firestack-Harvey, is a retired hairdresser with arthritis and osteoporosis. Mr. Harvey says he takes his wife’s home-baked marijuana confections when the pain in his knee starts to flare. The Harveys thought they were in the clear, growing 68 marijuana plants on their acreage in northeast Washington, one of 22 states allowing legal medical marijuana. (Federal authorities say they are several plants over the limit.)
Their pot garden was a co-op among the four family members and one friend; the marijuana was not for sale or distribution, Mr. Harvey says. “I think these patients were legitimate,” Dr. Greg Carter, who reviewed medical records after the arrest, told The Spokesman-Review of Spokane. “They are pretty normal people. We’re not talking about thugs.”
But the authorities, using all the military tools at their disposal in the exhausted drug war, treated them as big-time narco threats. First, a helicopter spotted the garden from the air. Brilliant, except Harvey himself had painted a huge medical marijuana sign on a plywood board so that his garden, in fact, could be identified as a medical pot plot from the air.
This was followed by two raids. One from eight agents in Kevlar vests. The other from Drug Enforcement Agency officers. They searched the house, confiscating guns, and a little cash in a drawer. The guns are no surprise: Finding someone who does not own a firearm in the Selkirk Mountain country is like finding a Seattleite who doesn’t recycle. Still, the guns were enough to add additional federal charges to an indictment that the family was growing more than the legal limit of plants.
Now, let’s step back. The Harveys live in the congressional district of Representative Cathy McMorris Rodgers, who is part of the House Republican leadership. She loves freedom. You know she loves freedom because she always says so, most recently in a press release touting her efforts to take away people’s health care coverage. “Americans must be protected from out of control government,” she stated.
Well, maybe. Unless that government is trying to take away the freedom of a retired couple growing pot to ease their bodily pains. That freedom is not so good. Astonishingly, in our current toxic political atmosphere, Republicans and Democrats joined together last month to vote, by 219 to 189, to block spending for federal prosecution of medical marijuana in states that allow it. Yaayyy, for freedom. There was one dissent from Washington State’s delegation. Yes, Cathy McMorris Rodgers, standing firm for an out of control government instead of defending one of her freedom-loving constituents....
Trial is set for July 28, and the Harveys can’t use legal medical marijuana as a defense, a judge has ruled. All the government has to prove is that the Harvey family was growing marijuana — a federal crime. If they go to prison for a decade, as the mindless statutes that grew out of the crack-cocaine scare stipulate, they would become part of a federal system where fully half of all inmates are behind bars for drug offenses. And one in four of those crimes involves marijuana.
So remember the Kettle Falls Five when all the legal pot stores and their already legal growing facilities open for business in Washington State next month. There will be silly features about cookies and candy bars laced with pot, and discussions about etiquette, dos and don’ts. The press will cite polls showing that a majority of Americans favor legalizing marijuana, and more than 80 percent feel that way about medical cannabis. But in the eyes of the federal government, these state laws are meaningless.
If Larry Harvey, at the age of 70, with his gout and high blood pressure and bum knee, gets the mandatory 10-year term, he’s likely to die in prison, certainly not the last casualty of the assault on our citizens known as the War on Drugs. For him, freedom is just another word his congresswoman likes to throw around on the Fourth of July.
As I have said before and will be saying again and again as more and more states legalize medical marijuana, there are a number of viable constitutional arguments based in the Eighth Amendment that I think could and should limit the federal prosecution and extreme federal sentencing of defendants like the Kettle Falls 5. I hope these defendants press these arguments aggressively and persistently in the months ahead.
In addition, I am pleased that this op-ed calls out Cathy McMorris Rodgers for failing to be eager to support and defend freedom and family values in this context. Rep. Rodgers says on her official website here that she has a "passion and determination to protect America’s values -- including family, faith, freedom, opportunity, and responsibility." I hope she gets often pressed on how these values justify the federal government seeking to imprison the Kettle Falls 5 for many years.
Prior related post: