Sunday, September 20, 2015

"Mass Incarceration Has Become the New Welfare"

The title of this post is headline of this interesting recent Atlantic commentary authored by Alex Lichenstein. It is, in part, a response to this major Altantic piece by Ta-Nehisi Coates, titled "The Black Family in the Age of Mass Incarceration," but it has lots more too it.  Here are excerpts:

When Ta-Nehisi Coates says that America’s bloated and enormously expensive dependence on imprisonment has created a “social service program … for a whole class of people,” he hits the nail on the head.  Perhaps correctional expenditures — police, courts, jails, prisons, halfway houses, parole offices, and all the rest — are better classified as “welfare” expenditures.

Mass incarceration is not just (or even mainly) a response to crime, but rather a perverse form of social spending that uses state power to address a host of social problems at the back end, from poverty to drug addiction to misbehavior in school.  These are problems that voters, taxpayers, and politicians — especially white voters, taxpayers, and politicians — seem unwilling to address in any other way.  And even as this spending exacts a toll on those it targets, it confers economic benefits on others, creating employment in white rural areas, an enormous government-sponsored market in prison supplies, and cheap labor for businesses.  This is what the historian Mike Davis once called “carceral keynesianism.”

What created this system? Coates suggests that 50 years ago policymakers and pundits refused to heed — or willfully misread — Daniel Patrick Moynihan’s dire warnings about the dissolution of the “Negro family” and his rather inchoate “case for national action.” Rather than redressing the problem of racism and “Negro” poverty, instead they turned to the expansion of a criminal justice system in the name of “law and order.”  Although Coates is justifiably hard on Moynihan — for his sexism and faith in patriarchy, for his subsequent reactionary politics, and most of all for lacking the courage of his convictions — like the historian Daniel Geary, he sees the Moynihan of 1965 as a closet supporter of affirmative action.

But, in characteristic fashion, he goes beyond this, asking readers to think in new ways about disturbing phenomena that they may take for granted.  Bringing together Moynihan’s concerns about black family structure with the cold fact of mass incarceration produces a striking conclusion: Mass incarceration actually causes crime.  In its long-term impact on the black family, mass incarceration has many of the disintegrative effects that Moynihan attributed to slavery.  It certainly has a similar multigenerational impact; the children of imprisoned people have a much higher chance of themselves being incarcerated as adults....

The terrible failures of America’s criminal-justice system can actually, from a certain perspective, be seen as policy successes.  The high rate of recidivism suggests that prisons fail to rehabilitate those who are locked up.  Yet if two-thirds of parolees return to prison, perhaps it is because the economy offers them no jobs and the welfare state excludes them as ex-felons.  Their return to the social services provided by incarceration, from this angle, makes a degree of sense.  And the point of Coates’s essay is that these people the economy has no room for and the state is unwilling to care for are, as they have always been, disproportionately of African descent.... 

Coates is right: To reform criminal justice requires “reforming the institutional structure, the communities, and the politics that surround it.”  Mustering the requisite political and social resolve to make those changes may seem impossible.  But consider this: How would the nation react if one out of every four white men between the ages of 20 and 35 spent time in prison? 

September 20, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Friday, September 18, 2015

Shouldn't former federal judge Mark Fuller now be federally prosecuted for perjury?

The question in the title of this post prompted by this new AP article, headlined "Judicial Conference says former federal judge's conduct was reprehensible, impeachable." Here are the details:

Judicial investigators told Congress this week that a former federal judge — arrested last year on a domestic violence charge — had demonstrated "reprehensible conduct" and there was evidence that he abused his wife several times and made false statements to the committee reviewing his behavior.

The Judicial Conference of the United States, in a report to Congress this week, said former U.S. District Judge Mark Fuller of Alabama brought disrepute to the federal judiciary and that his conduct might have warranted impeachment if he had not resigned this summer.  

In a letter to the House Judiciary Committee [which can be accessed here], the Judicial Conference noted Fuller's resignation, but said the severity of Fuller's misconduct and its finding of perjury led it to turn the information over to Congress for whatever action lawmakers deem necessary. "This certification may also serve as a public censure of Judge Fuller's reprehensible conduct, which has no doubt brought disrepute to the Judiciary and cannot constitute the 'good behavior' required of a federal judge," Judicial Conference Secretary James C. Duff wrote in a Sept. 11 letter to House Speaker John Boehner....

The Judicial Conference wrote that there was substantial evidence that the judge "physically abused Kelli Fuller at least eight times, both before and after they married, which included and culminated in the assault that took place on Aug. 9, 2014, in the Ritz-Carlton Hotel in downtown Atlanta, Georgia." The conference wrote that Fuller denied under oath to the investigating committee that he ever hit, punched or kicked his wife, and that the investigating committee considered those to be false statements. The Judicial Conference also cited a separate incident, on which it did not elaborate, saying Fuller in 2010 made a false statement to the chief judge that caused a disruption in operations and a loss of public confidence in the court.

The House committee is not releasing the full report, which contains some sensitive victim information. Fuller was placed on leave after his arrest. In May, he announced that he was resigning effective Aug. 1. The Judicial Council of the U.S. 11th Circuit at the time said Fuller's actions might have warranted impeachment, but the reasons for the determination were not released until this week.

Fuller was appointed to the bench in 2002 by then-President George W. Bush. He is perhaps best known for presiding over the 2006 public corruption trial of former Alabama Gov. Don Siegelman and former HealthSouth CEO Richard Scrushy. 

As celebrity white-collar attorneys surely recall, in recent times a number of prominent public figures ranging from Barry Bonds to Roger Clemens to Marion Jones to 'Lil Kim to Scooter Libby have been federally prosecuted for alleged acts of perjury that seems far less serious and consequential than what the Judicial Conference has found former judge Mark Fuller committed.  Absent some prominent explanation for why a federal perjury prosecution would not be worthwhile in this setting, I will be mighty disappointed and a bit concerned if Fuller does not face sanctions for his apparent criminal behavior in this matter.  (Critically, I am not — at least not yet — asserting that Fuller should be imprisoned for his lying under oath to cover up his misbehavior and stay in his position as a federal judge.  But I am saying (former state DA prosecutor) Fuller ought to at least face federal criminal charges and be subject to the heat that comes with a formal federal prosecution.)

September 18, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (15)

"Cuba to release 3,522 prisoners on the eve of Pope Francis’ visit; why can’t Obama do the same?"

PopeFrancisIsis-v2The provocative question in the title of this post is the title of this notable San Francisco Bay View commentary. Here is how it starts:

Just prior to the visit of Pope Francis to Cuba on Sept. 19, the Cuban government has announced the release of 3,522 people being held in the country’s jails.  This humanitarian gesture will include prisoners who are over 60 years of age, younger than 20, those with chronic illnesses, women and those who are close to their release dates.

Why couldn’t Obama follow the Cuban example before Pope Francis continues on his tour to the U.S. on Sept. 22?  The United States, which has the dubious distinction of having the largest per capita prison population in the world, is overflowing with people who are primarily incarcerated for nonviolent offenses, on drug charges, or being mentally ill and poor.  Of the 2.5 million people in jails and prisons in this country, a vastly disproportionate number are people of color.

As the Obama presidency winds down, with nothing to lose, he could do the right thing by releasing an equal percentage of the prison population as the Cubans did.  Now that would be a humanitarian gesture that a war torn world could appreciate and a gesture of peace with justice to the visiting Pope.  It would amount to the freedom of tens of thousands of people.

Though I am suspect of any accounting of Cuba's incarceration levels (or its propaganda about recent releases), the latest estimate of its imprisoned population is around 57,500.  Consequently, its release of more than 3,500 prisoners amounts to freeing more than 6% of its incarcerated population.  A comparable effort by President Obama, if we focus on the entire local, state and federal incarcerated US population, would require the release of more than 135,000 persons imprisoned in the United States. Even if Prez Obama only released 6% of the current federal prison population, he would still need to grant over 12,000 federal offenders their freedom to make a gesture for the Pope comparable to what Cuba is claiming it has done.

I am not expecting to Prez Obama (or any state's Governor) to make a mass clemency gesture like this for the Pope's visit to the US.  But, as this new NPR story highlights, there are a number of criminal justice reform advocates who are hopeful that, at the very least, the Pope's visit will help kick-start federal criminal justice reform efforts. The NPR piece is headlined "Pope's U.S. Visit Spurs Catholic Support For Criminal Justice Reform," and it highlights that the "Pope will visit a prison in Pennsylvania next week and ... and faith leaders are using the opportunity to press Congress for action."

Some prior related posts on Pope Francis and criminal justice reform:

September 18, 2015 in Clemency and Pardons, Prisons and prisoners, Religion, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Ohio judges pushing for "truth in plea bargaining"

My Columbus Disptach this morning has this notable new article about a notable new push for a new criminal procedure rule concerning plea bargaining practices here in the Buckeye state.  The article is headlined "Plea deals must reflect crime committed, judges demand," and here are excerpts:

Judge Michael P. Donnelly had seen enough by the time his spreadsheet of plea deals in sexual-assault cases reached nearly 200. In each case, the defendant pleaded guilty to a lesser crime that bore no factual resemblance to what occurred, allowing many to avoid sex-offender registration requirements.

Many rape cases involved pleas to aggravated assault, a crime involving serious bodily harm in which the defendant was provoked by the victim — a scenario common in a drunken bar fight but wildly inconsistent with rape. “It’s sidestepping the truth. It’s legal fiction, nothing more than a lie,” said Donnelly, a Cuyahoga County Common Pleas Court judge. “No one can defend this process. There is no ethical defense.”

With Donnelly leading the charge for change, the Ohio Supreme Court — unless legislators object — could amend court rules to require charges in felony plea deals to be factually based — to reflect what actually occurred. “Ending the charade” would promote transparency and foster public accountability in the justice system, Donnelly said. “We can be allowing pleas to something that everyone knows didn’t happen.”

The court’s rules commission has advanced the proposal by moving to seek public comment on the changes in Criminal Rule 11 as part of the early steps of a lengthy process leading to approval or rejection. The Ohio Judicial Conference, which represents the state’s judges, is on board with the change, calling “often convenient” plea agreements “contrary to the objectives of the justice system.”

Advocates for sexual-assault victims also support the change, saying pleas to lesser, unrelated offenses leave victims’ trauma unacknowledged and victims feeling “like the justice system let them down.”

Criminal-defense lawyers oppose the change, saying that it would unfairly limit their options in representing criminal defendants and could increase the number of cases going to trial. “While (plea deals) may be factually incorrect, from a justice perspective it is the right thing to do,” said Ohio Public Defender Timothy Young. “We have punishments that are not proportional to everyone who commits a crime because not every crime, while of the same name, is of the same nature.”

Barry Wilford, public-policy co-director of the Ohio Association of Criminal Defense Lawyers, said, “Truth in plea bargaining is an easily stated expression, but it begs the question, ‘What is the truth?’  ” Prosecutors and defense lawyers, with the ultimate approval of judges, “have to have some freedom, some negotiating room. ... There’s give and take by both sides. Each side has its objectives. The law should permit them that liberty,” Wilford said.

Donnelly’s study of 197 cases between 2008 and 2012 that resulted in plea agreements that he determined were not based on the facts represented only about 5 percent of the 3,700 sexual-assault cases handled in Cuyahoga County, an official said. “Sometimes, you take the sure thing to get someone off the street and hold them accountable,” said Joseph Frolik, spokesman for Prosecutor Timothy McGinty, who took office in 2013.

Franklin County Prosecutor Ron O’Brien agrees with Donnelly that plea deals “should resemble what the conduct was.” He and his assistants work to base plea agreements on the factual circumstances of cases and preserve sex-offender registration, often by using lesser and included “attempted” offenses, such as attempted rape, he said. “It’s been on everyone’s radar for a number of years. Anyone who has been doing it to an improper degree probably already has changed that practice,” O’Brien said.

Greene County Common Pleas Judge Stephen A. Wolaver leads the Ohio Supreme Court’s criminal-rules committee and believes truth-in-plea-agreements should be adopted to foster public confidence in courts. “If you are going to handle a case based on the fact a person committed a crime, transparency says they should have committed that crime. If there is no fact basis for a particular crime, the question is raised, ‘Was there actually justice?’  ” Wolaver asked.

September 18, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, September 17, 2015

Prez Candidate Bernie Sanders announces plan to restore federal parole and eliminate private prisons

Images (1)As reported in this new USA Today piece, headlined "Sanders seeks to ban private prisons," a US Senator on the presidential campaign trail has come out with a distinctive and ambitious criminal justice reform proposal. Here are the basics:

Sen. Bernie Sanders said he hopes to end the “private, for-profit prison racket” with the introduction Thursday of bills to ban private prisons, reinstate the federal parole system and eliminate quotas for the number of immigrants held in detention.

The Vermont independent, who is running for the Democratic presidential nomination, introduced the “Justice is not for Sale Act” with Democratic Reps. Raúl M. Grijalva of Arizona, Keith Ellison of Minnesota and Bobby L. Rush of Illinois. It would bar the federal government from contracting with private incarceration companies starting two years after passage.

“The profit motivation of private companies running prisons works at cross purposes with the goals of criminal justice,” Sanders said. “Criminal justice and public safety are without a doubt the responsibility of the citizens of our country, not private corporations. They should be carried out by those who answer to voters, not those who answer to investors.”...

Ellison said the private-prison industry spends millions each year lobbying for harsher sentencing laws and immigration policies that serve its bottom line. “Incarceration should be about rehabilitation and public safety, not profit,” he said.

The legislation would reinstate the federal parole system, abolished in 1984, and increase oversight of companies that provide banking and telephone services for inmates. It also would end the requirement that Immigration and Customs Enforcement maintain 34,000 detention beds.

Sanders said the bill represents only a piece of the major criminal justice reforms he believes are needed, but he’s convinced the issue can find bipartisan support. “Making sure that corporations are not profiteering from the incarceration of fellow Americans is an important step forward.”

The full text of the Justice is Not for Sale Act of 2015 can be accessed at this link, and it is a very interesting read. Perhaps not surprisingly, the media is so far focused on the provisions of the bill seeking to eliminate use of private prisons. But I think the provisions in the bill that are the most important and could be, by far, the most consequential are those that would reintroduce parole in the federal system.

September 17, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Notable Left/Right morality accounting of the "Truth about Mass Incarceration"

Cover_20150921_tocProviding the cover feature piece for the September 21 issue of The National Review, Stephanos Bibas has this notable new commentary reflecting on the political rhetoric and statistical realities that surround modern crime and punishment in the United States.  The piece is headlined "Truth about Mass Incarceration," and I highly recommend the piece in full.  Here is an except from heart of the commentary, as well as its closing paragraph:

So the stock liberal charges against “mass incarceration” simply don’t hold water.  There is no racist conspiracy, nor are we locking everyone up and throwing away the key.  Most prisoners are guilty of violent or property crimes that no orderly society can excuse.  Even those convicted of drug crimes have often been implicated in violence, as well as promoting addiction that destroys neighborhoods and lives.

But just because liberals are wrong does not mean the status quo is right.  Conservatives cannot reflexively jump from critiquing the Left’s preferred narrative to defending our astronomical incarceration rate and permanent second-class status for ex-cons.  The criminal-justice system and prisons are big-government institutions.  They are often manipulated by special interests such as prison guards’ unions, and they consume huge shares of most states’ budgets.  And cities’ avarice tempts police to arrest and jail too many people in order to collect fines, fees, tickets, and the like.  As the Department of Justice found in its report following the Michael Brown shooting in Missouri, “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.” That approach poisons the legitimacy of law enforcement, particularly in the eyes of poor and minority communities.

Conservatives also need to care more about ways to hold wrongdoers accountable while minimizing the damage punishment does to families and communities.  Punishment is coercion by the state, and it disrupts not only defendants’ lives but also their families and neighborhoods.  Contrary to the liberal critique, we need to punish and condemn crimes unequivocally, without excusing criminals or treating them as victims.  But we should be careful to do so in ways that reinforce rather than undercut conservative values, such as strengthening families and communities....

American criminal justice has drifted away from its moral roots. The Left has forgotten how to blame and punish, and too often the Right has forgotten how to forgive. Over-imprisonment is wrong, but not because wrongdoers are blameless victims of a white-supremacist conspiracy. It is wrong because state coercion excessively disrupts work, families, and communities, the building blocks of society, with too little benefit to show for it. Our strategies for deterring crime not only fail to work on short-sighted, impulsive criminals, but harden them into careerists. Criminals deserve punishment, but it is wise as well as humane to temper justice with mercy.

September 17, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

"The Meaning of 'Meaningful Appellate Review' in Capital Cases: Lessons from California"

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

In Furman v. Georgia, the Supreme Court's seminal death penalty case, the Court held that the death penalty, as then administered, violated the Eighth Amendment because the penalty decision was so unguided and the imposition of the death penalty was so infrequent as to create an unconstitutional risk of arbitrariness.  The Court's remedy, developed in subsequent decisions, was to require the state legislatures to "genuinely narrow the class of persons eligible for the death penalty" and the state courts to provide "meaningful appellate review" of death sentences.  In recent years, a number of scholars have addressed the genuine narrowing requirement with empirical research on particular state schemes.

Less attention has been paid to the appellate review requirement and, in particular to Pulley v. Harris, the Court's key case on the issue.  In Pulley, the Court held that comparative proportionality review of death sentences was not constitutionally required in a state's death penalty scheme unless that scheme was "so lacking in other checks on arbitrariness" that it could not otherwise pass constitutional muster.  The Court acknowledged, however, that some form of meaningful appellate review was required. Using California as an object lesson, this article examines both aspects of the Court's opinion: what would make a state scheme so lacking in checks on arbitrariness as to require comparative proportionality review; and what would constitute meaningful appellate review by a court which eschews comparative proportionality review.

The article argues that the California death penalty scheme is that scheme imagined in Pulley — a scheme with virtually no checks on arbitrariness, producing arbitrary sentences and arbitrary executions, and, therefore, a scheme where comparative proportionality should be required.  The article also argues that, in California, there is no meaningful review of death sentences at all — not once in 593 direct appeals in death penalty cases has the California Supreme Court set aside a death sentence on the ground that it was disproportionate, excessive or otherwise aberrant.  Although California is, in this respect, is a distinct outlier, it is not alone among the states in ignoring the Furman requirements. The lesson from California is that the Supreme Court's "meaningful review" of state schemes is long overdue.

September 17, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, September 16, 2015

Oklahoma's top criminal court stays execution of Richard Glossip for two weeks

As reported in local news pieces here and here, Oklahoma Governor Mary Fallin late yesterday refused to delay today's scheduled execution of Richard Glossip amid concerns about his factual guilt.  But today the Oklahoma Criminal Court of Appeals issued a stay of execution for death row inmate Richard Glossip. Here are the basics:

Just before 12 p.m. Wednesday, a stay has been granted for him until September 30. Late Tuesday afternoon, Gov. Mary Fallin said she will not grant Glossip a stay of execution. Just before 5 p.m. Tuesday, Glossip’s attorneys filed the appeal with the Oklahoma Court of Criminal Appeals. It's their last avenue to stop the execution.

Court documents released on Wednesday stated that, "Due to Glossip's last minute filing, and in order for this court to give fair consideration to the materials included with his subsequent application for post-conviction relief, we hereby grant an emergency stay of execution for two weeks. The execution of Richard Eugene Glossip shall be reset, without further order, for September 30, 2015."

During a news conference on Wednesday, the Director of Oklahoma Department of Corrections said he does not know the reasons behind the stay, and that at this time, they are shutting down all procedures.

Prior related post:

September 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence

As reported in this local piece, headlined "Accused gunman in Charleston church shooting proposes guilty plea," a high-profile mass murderer is apparently prepared to cut a plea deal to try to avoid a state capital prosecution. Here are the details and context:

An attorney for the man accused of gunning down nine people at a historic black church in South Carolina said on Wednesday his client is willing to plead guilty to state murder charges if the move would spare him a death sentence.

A guilty plea by Dylann Roof, 21, in exchange for a sentence of life in prison without parole also would spare the victims' families and shooting survivors from the trauma of trial proceedings, attorney Bill McGuire said.

His remarks came during a hearing in Charleston over whether a judge will release 911 calls and police reports about the June 17 massacre during a Bible study meeting at Charleston's Emanuel African Methodist Episcopal church. Judge J.C. Nicholson in July blocked the release of investigative materials in the state's murder case against Roof, who is white, citing concerns about graphic photos of the crime scene and emergency calls that might have recorded the sounds of victims.

Assistant U.S. Attorney Nathan Williams, who is prosecuting Roof in federal court, said the families and survivors were "re-traumatized" every time they heard, saw or read something about the killings. He argued for the documents, including coroner's reports and witness statements, to remain sealed. "It may take years before people are ready to see that," Williams said.

Jay Bender, an attorney for news organizations challenging the gag order, asked the judge to review documents and photos to decide whether some could be released. Media outlets have argued that transparency ensures a defendant's right to a fair trial. "There is an alternative to the imposition of a cloak of secrecy over what has happened in Charleston," Bender said....

In addition to state murder charges, Roof faces 33 federal hate crime and weapons charges that also could result in a death sentence but federal prosecutors have not said if they will pursue that in their case. The federal charges are based on evidence that Roof targeted the black victims because of their race and "in order to interfere with their exercise of religion," U.S. Attorney General Loretta Lynch said.

A few prior related posts:

September 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Federal child porn downloaders complaining to judges about Jared Fogle's (too sweet?) plea deal

This local article from Indiana, headlined "Convicted sex offenders object to Fogle's proposed plea deal," reports that at least a couple of incarcerated federal child pornography offenders have written to a federal judge to complain about how federal prosecutors used their discretion to resolve sex offense charges against former Subway pitchman Jared Fogle. Here are the basics:

Sex offenders in prison right now around the country are writing the judge here in Indiana handling the Jared Fogle case, upset over his possible plea deal.

In the letters — one from an inmate in Tucson, the other from an inmate in Florida — both talk about the time they are serving for distribution of child pornography.  One is serving a 40-year sentence, the other 16.5 years.

They are critical of Fogle's plea deal that could have him serve 5- to 12.5 years behind bars. They argue they are serving far more time for child pornography, and Fogle is also accused of having sex with underage girls.  Both asked for the judge to deny the plea deal.  Fogle's sentencing is set for November 19.

These two inmate letters make for fascinating reads and they can be accessed at this link. Among other stories, these letters provide an interesting perspective on how federal prosecutorial discretion can and does contribute to federal sentencing disparity and on how this disparity is perceived by those most impacted by it.  Notably, in a post last month I asked, Has Jared Fogle gotten a sweetheart plea deal and/or celebrity treatment for sex crimes?, and the question prompted a good comment dialogue.  Obviously, some federal child porn offenders think the answer to this question is obviously yes.

Prior related posts:

September 16, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Does Glossip case reveal Oklahoma's prosecutors as immoral and its judges lacking in moral fiber?

The qustion in the title of this post is prompted by this provocative Slate commentary authored by Robert J. Smith and G. Ben Cohen which is headlined "Groundhog Day Nightmare: Oklahoma is about to execute a man who is probably innocent." Here are excerpts from the piece, including sections with the forceful rhetoric parroted in the title of this post:

Oklahoma is set to execute Richard Glossip, despite grave doubts about his guilt. A chorus of people that includes Republican former Sen. Tom Coburn; Virgin Group CEO Richard Branson; and Barry Switzer, the beloved former Oklahoma Sooners football coach, has called for Oklahoma Gov. Mary Fallin to grant a stay of execution. If she does not, and if the Supreme Court does not step in, Glossip will be put to death Wednesday....

In 1997, Justin Sneed killed Barry Van Treese, a motel owner for whom both Sneed and Glossip worked. The police found Sneed’s fingerprints all over the bloody crime scene and in the victim’s vehicle. Sneed later confessed to the killing. The prosecution’s theory at Glossip’s trial was that Glossip pressured Sneed into murdering Van Treese. What evidence supported the state’s theory? Not much....

The prosecution gave him a sweetheart deal: In exchange for his testimony against Glossip, the state waived the death penalty. The problem is that the substance of Sneed’s testimony at trial was invented by the state....

It is bad enough that Sneed received a deal in exchange for his testimony. It is worse that the detective “educated” Sneed about Glossip being the mastermind. But what’s not only unforgivable, but downright immoral, is that the prosecution put forward the Glossip-as-mastermind theory in a capital case, with a man’s life on the line, when Sneed couldn’t even keep his story straight....

If Oklahoma proceeds with this execution, Glossip will not, unfortunately, be the only plausibly innocent man put to death....

Did Georgia execute an innocent man when it killed Troy Anthony Davis? Did Texas execute innocent men when it put Cameron Todd Willingham and Lester Bower to death? Will Oklahoma add to this tragic list if neither Gov. Fallin nor the Supreme Court stops the execution of Richard Glossip? We honestly do not know. And that’s the problem. How do we preserve the integrity of our justice system and our courts if we send condemned inmates to the lethal injection chamber with no more certainty of their guilt than a coin flip?

Given all that is known today about wrongful convictions, the fallibility of our criminal justice institutions, and their fallibility in identifying these potentially fatal errors, the question should not be Is this person innocent? but rather: Is this a case of uncertain guilt? Whatever principles the state seeks to uphold, whether it is the finality of its judgments or deference to juries or state courts, nothing trumps the risk of executing a person where there is some serious doubt as to his or her guilt.

In Richard Glossip’s case, there is more than “some” doubt.  There is lots of it. No physical evidence ties him to the crime.  There is no motive that withstands scrutiny. The detectives in the case engaged in tactics known to increase the likelihood of witnesses providing false statements.  And the state’s chief witness, Justin Sneed, was unreliable at best, with clear motives for lying. Few of us would buy a used car from Justin Sneed.  Are we prepared to stake the moral fiber of our justice system on his word?  If our answer is no, we must stop the execution of Richard Glossip. His life depends upon it, and so does the soul of our nation’s justice system.

I was a bit dismissive in this prior post of eleventh-hour innocence claims here given that Glossip was twice convicted and sentenced to death (his first conviction was reversed for procedural error). But I cannot help but wonder if my eagerness to question claims of innocence here is a result of my own desire to believe that Oklahoma prosecutors would not be immorally eager to condemn to death (twice) a man based on very weak evidence and that Oklahoma and federal courts would have had the moral fiber to intervene if there was real substance to the innocence claims.

That all said, absent "smoking gun" evidence to provide some more confidence in Glossip's guilt, I can understand why the abolitionist crowd has now garnered broad support for their claim that the Glossip execution should not go forward.  Still, I continue to be deeply troubled that a case which produced two jury convictions well over a decade ago, and which has been at the center of the national death penalty debate for nearly all of 2015, is  only now struggling at the very minute with what is the most fundamental and basic question in any and every criminal case.

Prior related post:

September 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Tuesday, September 15, 2015

"Unequal Assistance of Counsel"

The title of this post is the title of this notable new paper by Peter Joy now available via SSRN. Here is the abstract:

There is now, and has always been, a double standard when it comes to the criminal justice system in the United States.  The system is stacked against you if you are a person of color or are poor, and is doubly unjust if you are both a person of color and poor.  The potential counterweight to such a system, a lawyer by one’s side, is unequal as well.  In reality, the right to counsel is a right to the unequal assistance of counsel in the United States.

The unequal treatment based on the color of one’s skin is reflected by the racial disparity throughout the criminal justice system in which minority racial groups are involved in the criminal justice system as suspects and defendants at rates greater than their proportion of the general population.  This is illustrated by the “driving while black” phenomenon in which law enforcement officers initiate traffic stops against persons of color and subject them to searches at a higher rate than whites, even though law enforcement is more likely to find contraband on white drivers than persons of color.

The Sixth Amendment promises the effective assistance of counsel to every person accused of a crime where incarceration is a possible punishment.  This guarantee suggests that everyone, rich and poor, is equal before the law.  But the reality of the criminal justice system is much different for the majority of those charged with crimes.  If one does not have the financial means to hire effective counsel, or is poor and not lucky enough to have a well-funded, effective public defender or appointed counsel, the defendant’s right to counsel is unequal.  This disparity is driven largely by the wealth of the accused and falls most harshly on people of color, who are twice as likely as whites to live in poverty and are accused of crimes at rates much higher than their proportion of the population.  As a result, class and race are largely determinative of the lawyer, and often the amount of justice one receives.

This article explores how unequal assistance of counsel contributes to unequal justice.  The article begins with a brief overview of racial disparities in the ways laws are enforced.  The initial step in the criminal justice system, whether the police stop someone, can lead to arrest, charges, and the need for a lawyer.  Next, it analyzes the systemic barriers to effective assistance of counsel at the state level, which is driven largely by excessive caseloads and an ineffective assistance of counsel standard that tolerates bad lawyering.  It concludes with strategies for achieving more effective assistance of counsel, which emphasize the ethical imperative to provide meaningful assistance of counsel, the importance of data collection by public defender systems, and systemic litigation that positions assistance of counsel claims prior to trials.

September 15, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Two very interesting (and very different) long reads about mass incarceration and drug dealing

I recently noticed two new (and very different) long-form commentary pieces that both ought to be of interest to deep thinkers about crime and punishment. Both defy easy summarization, so I will just provide links and the extended headline of the pieces and encourage readers in the comments to highlight important themes in either or both:

September 15, 2015 in Drug Offense Sentencing, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Monday, September 14, 2015

Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case

In four weeks, the US Supreme Court will hear oral argument in Montgomery v. Louisiana.  Here, via this SCOTUSblog posting and this official SCOTUS page, are the questions that the Justices will be considering in Montgomery:

Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?

Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison.

Because both of these questions engage many interesting, important and dynamic issues, I am planning to do a (lengthy?) series of posts about this case and the various arguments that have been presented to the Justices via amicus briefs (including one I filed thanks to the efforts of good folks at the Columbus offices of Jones Day).  As the title of this post reveals, I have decided to use "Montgomery wards" as the cheeky title for this coming series of posts.

Notably, as this new SCOTUSblog posting highlights, it would now appear that the Justices share my sense that the Montgomery case raises many interesting, important and dynamic issues because they have now scheduled additional argument time for the case.  Here are the basics via Lyle Denniston's SCOTUSblog report:

The Supreme Court on Monday added fifteen minutes to the argument schedule for its hearing October 13 on Montgomery v. Louisiana, a case that could decide which juveniles convicted of murder can take advantage of a 2012 decision limiting sentences of life without parole for minors.  The added time will allow a Court-appointed attorney to argue a question about the Court’s authority to actually rule on the legal issue in the case.

In March, the Justices agreed to hear the appeal of Henry Montgomery of Baton Rouge, who is seeking retroactive application of the Court’s decision in Miller v. Alabama, which had all but eliminated states’ power to sentence youths to life without parole, as punishment for committing a murder when they were under the age of eighteen.  In taking on the case, however, the Court also added the question whether it has jurisdiction to review and rule on the Louisiana Supreme Court decision refusing to apply the Miller precedent to cases that had become final before June 25, 2012, when Miller was decided.   Louisiana had raised that issue in a filing in an earlier case on the juvenile sentencing question. 

Instead of the usual one hour of argument time, the Court in the Montgomery case will hear seventy-five minutes.  The time will be divided this way: the Court-appointed attorney, Richard Bernstein of Washington, D.C., will have fifteen minutes to argue against the Court’s jurisdiction, Montgomery’s attorney will have fifteen minutes to argue both points, an attorney from the office of the U.S. Solicitor General will have fifteen minutes to argue both issues, and a lawyer for the state of Louisiana will have thirty minutes of time to argue both questions.  The order also said that Bernstein and Montgomery’s lawyer will be allowed to save time for rebuttal.

The federal government, in a brief filed by the Solicitor General, supported Montgomery’s plea to apply Miller retroactively and argued that the Court does have jurisdiction to decide that question.  The brief noted that there are twenty-seven inmates in federal prisons whose sentences could be affected by the retroactivity issue.

September 14, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Is a capital case the right kind of vehicle for SCOTUS to consider solitary confinement?

The question in the title of this post is prompted by this new New York Times piece by Adam Liptak headlined "Virginia Has Solitary Confinement Case, if Justices Want It." Here are excerpts:

The Supreme Court seems eager to hear a case on the constitutionality of a distinctively American form of punishment: prolonged solitary confinement. “Years on end of near total isolation exact a terrible price,” Justice Anthony M. Kennedy wrote in a concurrence in a case in June. Justice Stephen G. Breyer echoed the point in a dissent in a case later that month.

An appeal from Virginia materialized almost immediately. Now the justices must weigh whether it has the right features — whether it is, in legal jargon, a good vehicle — to serve as the basis for a major decision on extended solitary confinement, which much of the world considers torture.

On the plus side, the case asks the sort of focused and incremental question that the justices often find attractive: May states automatically put all death row inmates in solitary confinement?

Last week, Mark R. Herring, Virginia’s attorney general, filed a brief urging the court to turn down the appeal. It is, he said, the wrong vehicle to address “the broader concerns recently voiced by Justices Kennedy and Breyer.” For starters, Mr. Herring wrote, “the case is likely to become moot before it can be decided.” That is because the state intends to execute the inmate who brought the challenge, Alfredo R. Prieto, on Oct. 1.

More generally, Mr. Herring wrote, Virginia is the wrong state in which to examine the issue of prolonged solitary confinement on death row because its capital justice system is exceptionally efficient. Inmates in other states can spend decades in solitary confinement, he wrote, but Virginia generally executes condemned inmates seven to 10 years after their convictions.

Mr. Prieto has been on death row for about seven years. But that was enough isolation, he told the justices, to have caused him mental agony. In a 2013 deposition, the warden of the prison where Mr. Prieto is serving his sentence seemed to concede the inhumanity of solitary confinement. “There is real importance to getting out and being with other people, I agree, and not being 24/7 in a cell,” said the warden, Keith Davis. “We, as humans, we don’t survive very well that way with lack of human contact.”

Later that year, a federal trial judge ruled in Mr. Prieto’s favor. “He must spend almost all of his time alone,” deprived of contact even with fellow prisoners, the judge, Leonie M. Brinkema, wrote. In theory, family members could visit on weekends in a room with a glass partition. “In actuality,” she said, “no one ever comes.”

Mr. Prieto, she said, “has not engaged in any of the behaviors that would normally support placement in segregated confinement,” and was “by all accounts a model prisoner.” On the other hand, he has a chilling criminal record. Mr. Prieto was on California’s death row for the 1990 rape and murder of a 15-year-old girl when, in 2005, DNA evidence linked him to a 1988 rape and double murder in Virginia. He was extradited to Virginia and found guilty....

In March, a divided three-judge panel of the federal appeals court in Virginia reversed Judge Brinkema’s ruling, though even the majority said the state’s approach was harsh. “Of course,” Judge Diana Gribbon Motz wrote for the majority, “the Supreme Court could prescribe more rigorous judicial review.”

Last week, Mr. Herring, the state’s attorney general, urged the Supreme Court to defer to prison officials in the case, Prieto v. Clarke, No. 15-31. “Death row offenders are sui generis,” he wrote. “States are entitled to make the judgment that death-sentenced offenders, as a class, should be confined in maximum-security conditions.”...

In June, Justice Kennedy lamented that “the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest.” That seemed to change over the summer. In July, President Obama ordered the Justice Department to review the use of solitary confinement in federal facilities....

This month, California settled a lawsuit brought by the Center for Constitutional Rights by agreeing to cut back sharply on solitary confinement. The next day, a group representing the nation’s corrections officials called for “efforts to limit or end extended isolation.”

Things are changing even in Virginia, perhaps as a consequence of Mr. Pietro’s lawsuit. In a sworn statement filed last month in a different case, Mr. Clarke, the corrections official, said death row inmates can now watch television and play games like chess or checkers with up to three other condemned prisoners for an hour a day. They can also have weekly “contact visits” with family members. These can include “one brief kiss, a handshake and/or an embrace.”

Plans are afoot, Mr. Clarke added, for an outdoor recreation yard that will allow small groups of death row inmates to play basketball and exercise together. It should be completed by the end of October, not long after Mr. Prieto’s scheduled execution.

Regular readers likely know that I believe and often lament that capital cases often get too much attention from the Supreme Court (and others) relative to other cases involving much less serious crimes and much more sympathetic offenders. Nevertheless, as this piece notes, Virginia's blanket policy of putting all death-row defendants in solitary might make this case an appropriate (and certainly interesting) setting for a foray into what the Eighth Amendment might say these days about extreme forms of imprisonment.

September 14, 2015 in Death Penalty Reforms, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"How Obama can use his clemency power to help reverse racism"

The title of this post is the headline of this provocative new MSNBC commentary authored Mark Osler and Nkechi Taifa. Here are excerpts:

In the remaining months of his second term, President Barack Obama has the chance to deliver justice for thousands of people given overly-harsh sentences for drug crimes.  The White House is probably now contemplating the next batch of clemency grants, which is expected in October.

It is likely that the vast majority of those whose sentences would be shortened will be African American. That is as it should be given that past laws and policies, as well as prosecutors and presidents, have tilted the criminal justice system disproportionately against them.

On average, blacks face unequal treatment at each stage of the criminal justice system. They are stopped and arrested more frequently than others; they are less likely to receive favorable terms on bail; and they are more likely to be victims of prosecutorial misconduct. Blacks are more likely to accept unfair plea bargains and be sentenced to rigid, lengthy mandatory minimums, or even death.  Race mattered when blacks were disproportionately targeted, imprisoned, and sentenced beyond the bounds of reason.  Race should also matter in providing relief via clemency today.

Despite the facially neutral nature of current laws that do not intentionally discriminate, disparate treatment is nevertheless sewn into the structural fabric of institutions, allowing bias to occur without direct action by a specific person.

Today’s racism is subtle and structurally embedded in many police departments, prosecutor offices, and courtrooms.  It is found in laws that look fair, but nevertheless have a racially discriminatory impact.  For example, from 1986 through 2010, the federal sentencing guidelines and the primary federal narcotics statute mandated the same sentence for five grams of crack as they did for 500 grams of powder cocaine....

Moreover, we know that even now prosecutors use the law unfairly to punish black defendants.  Writing in the Daily Beast, Jay Michaelson reports that 95% of elected prosecutors are white, and that those prosecutors disproportionately use mandatory minimum sentences to incarcerate black defendants for longer periods of time than similarly situated whites.  Again, there is seldom a “smoking gun” tying white prosecutors to specific acts of racism.  But there is a growing consensus that the system is flawed and structurally biased against blacks.

The number of African-Americans jailed under these laws and policies soared in the past few decades.  Yet previous presidents predominantly used their power to pardon to benefit high profile white men, including Vice President Dick Cheney’s former chief of staff, Scooter Libby, and Clinton donor and financier Marc Rich.  Indeed, President George W. Bush used the pardon power 200 times, but fewer than 16 of those were granted to black petitioners who have traditionally been unconnected to money, power and influence....

As the president’s clemency program accelerates over the 16 months remaining in his second and final term, we hope that he will look at the impact race has played in meting out unjust sentences.  We hope that he will broadly consider those who are worthy of a shortened sentence and a lengthened term of freedom and responsibility.  And we hope that among this group will be multitudes of eligible black men and women who will be able to be reunited with families and communities.  This does not reflect a racial bias.  It simply reflects the gut-wrenching reality of those disproportionately over-sentenced in the first place.

September 14, 2015 in Clemency and Pardons, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, September 13, 2015

Alabama Chief Justice laments mandatory LWOP drug sentence for 76-year-old offender

As reported in this AP article, "Alabama Chief Justice Roy Moore says the case of a 76-year-man sentenced to life without parole for a drug offense shows the need to change sentencing laws."  Here is more about the notable separate opinion authored by the top jurist of the the Cotton State:

Moore issued a special writing Friday as the Supreme Court refused to overturn the case of Lee Carroll Brooker. "I believe Brooker's sentence is excessive and unjustified," Moore wrote.

Brooker lived with his son in Houston County, and court documents show police found a marijuana-growing operation there during a search in 2013. The elderly man was convicted of drug trafficking last year, and a judge sentenced him to life without parole because of past robbery convictions in Florida. His son was also convicted. Moore writes that the life-without-parole sentence for a non-violent drug offense shows "grave flaws" in Alabama's sentencing system.

"A trial court should have the discretion to impose a less severe sentence than life imprisonment without the possibility of parole," Moore added. "I urge the legislature to revisit that statutory sentencing scheme to determine whether it serves an appropriate purpose."

The full opinion by Chief Justice Moore is available at this link.

September 13, 2015 in Drug Offense Sentencing, Examples of "over-punishment", Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Saturday, September 12, 2015

Federal judge finds unconstitutional Missouri's operation of its sex-offender civil commitment program

As reported in this local piece, headlined "U.S. judge rules handling of state's sexual predator program is unconstitutional," a federal judge issued late friday a significant ruling concerning Missouri's sex offender laws.  Here are the details:

In an awaited ruling from the federal bench, U.S. District Judge Audrey G. Fleissig ruled late Friday afternoon that Missouri’s sexually violent predator law is constitutional, but not how it’s applied.  The judge wrote that there is a “pervasive sense of hopelessness” at the Department of Mental Health’s Sex Offender Rehabilitation and Treatment Services, or SORTS program, because patients aren’t being properly released.

With help from the state attorney general’s office, SORTS is indefinitely committing about 200 people to treatment in the belief that they might reoffend.  The program has been praised and criticized since it began in 1999.  Before the trial started in April, nobody had completed treatment and been allowed to live outside of secure SORTS facilities in Fulton or Farmington.  They entered the program after completing prison sentences for sex crimes.

“The overwhelming evidence at trial — much of which came from Defendants’ own experts — did establish that the SORTS civil commitment program suffers from systemic failures regarding risk assessment and release that have resulted in the continued confinement of individuals who no longer meet the criteria for commitment, in violation of the Due Process Clause,” Fleissig wrote in her ruling.

“The Constitution,” the judge added, “does not allow (Missouri officials) to impose lifetime detention on individuals who have completed their prison sentences and who no longer pose a danger to the public, no matter how heinous their past conduct.”  Those issues will be addressed soon in the remedy portion of the trial.  A hearing will be held Sept. 29.

“I can’t believe it, man,” said John Van Orden, 55, who lived in the Springfield, Mo., area before being committed to SORTS in 2005.  “It’s hard to describe after all that we have been through here.  Finally, we get some light at the end of the tunnel.”  The class-action lawsuit began in 2009.

Eric Selig, a lead attorney for the plaintiffs, said Friday: “We hope to work with the attorney general’s office and the Department of Mental Health to fix the program and start releasing the people who have successfully completed treatment, which is what the statute is all about.”...

Gov. Jay Nixon, a Democrat, has supported the program as a needed public safety tool.  He has said judges weigh annual reports to determine when patients deserve to be released. And the Legislature, now Republican-controlled, adds a layer of oversight, scrutinizing the program’s budget.  Plaintiffs’ attorneys attempted to punch holes in these positions and others during the eight-day federal bench trial that ended here April 30.

The judge agreed. In her ruling, she said the state of Missouri has not:

  • Performed annual reviews in accordance with the Sexually Violent Predator Act.
  • Properly implemented any program to ensure the least restrictive environment.
  • Implemented release procedures, including director authorization for releases, in the manner required by the law.

At the center of the case in Missouri — and other states struggling with similar laws — was the question of whether SORTS facilities genuinely rehabilitate sex offenders, or are merely an extra layer of punishment outside of the prison system.  In June, a federal judge in Minnesota ruled that indefinitely committing sex offenders is unconstitutional.

While the Missouri Attorney General’s Office argued at trial that progress is being made in treatment, plaintiffs’ attorneys harped on the fact that no patient had been released back into society.  They used the state’s own witness to point out a sense of hopelessness among staff and patients, who already have completed prison sentences before being detained indefinitely for treatment.

Plaintiffs’ attorneys sifted through hundreds of thousands of pages of the program’s documents, including a memo from the former chief of operations who wrote in 2009 that 16 patients could be moved to the St. Louis Psychiatric Rehabilitation Center, a less restrictive facility at 5300 Arsenal Street. In the memo, Alan Blake wrote that the top five of those 16 patients could be moved “today” and “easily” pass a test that shows they can live close to neighbors without harm.  “The rest may need greater support/treatment, but don’t represent a risk to the community in terms of compliance and appreciation of their situation,” Blake added.  “The setting would likely enhance their treatment and provide motivation.”  The memo went on to say that a few of the patients would even make good employees or peer counselors at the St. Louis rehab center.

Testimony in the federal case showed that those details — ones that seemed to show favorable patient progress — weren’t included in the annual reports to courts that make the ultimate decision about release.  With the addition of 20 SORTS patients a year and nobody being released, plaintiffs’ attorneys pressed the issue of reforming the program and developing a fast track to a nursing home for elderly and infirm patients. At least 17 patients have died in the program, including one who was well into his 80s.

The full 60-page trial court ruling in this matter can be accessed at this link.

September 12, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

"Punitive Compensation"

The title of this post is the title of this intriguing new paper by Cortney Lollar now available via SSRN. Here is the abstract:

Criminal restitution is a core component of punishment. In its current form, this remedy rarely serves restitution’s traditional aim of disgorging a defendant’s ill-gotten gains. Instead, courts use this monetary award not only to compensate crime victims for intangible losses, but also to punish the defendant for the moral blameworthiness of her criminal action. Because the remedy does not fit into the definition of what most consider “restitution,” this Article advocates for the adoption of a new, additional designation for this prototypically punitive remedy: punitive compensation.

Unlike restitution, courts measure punitive compensation by a victim’s losses, not a defendant’s unlawful gains. Punitive compensation acknowledges the critical element of moral blameworthiness present in the current remedy. Given this component of moral blameworthiness, this Article concludes the jury should determine how much compensation to impose on a particular criminal defendant.

The jury is the preferable fact-finder both because jurors represent the conscience of the community, and because the Sixth Amendment jury trial right compels this result. Nevertheless, many scholars and legislators remain reluctant to permit juries to determine the financial award in a particular criminal case. Courts and lawmakers share a common misperception that juries make arbitrary, erratic, and irrational decisions, especially in the context of deciding criminal punishments and punitive damages, both of which overlap conceptually with punitive compensation.

In debunking this narrative, this Article relies on empirical studies comparing judge and jury decision-making and concludes that juries are the more fitting fact-finder to determine the amount of punitive compensation to impose in a given case. Although anchoring biases, difficulties in predicting the duration and degree of a crime victim’s future emotional response, and poorly written jury instructions challenge juries, each of these impediments can be counteracted through thoughtful and conscientious systemic responses.

September 12, 2015 in Blakely Commentary and News, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, September 11, 2015

Is Arkansas about to jump back seriously into execution business?

The question in the title of this post is prompted by this recent local article from the Natural State, headlined "Dates to die set for 8 inmates: State resuming executions; first two scheduled for Oct. 21." Here are the details:

After nearly a decade since an Arkansas inmate was put to death, Gov. Asa Hutchinson on Wednesday announced the execution dates for eight. Barring intervention from a court, the state will first mete out capital punishment, by lethal injection, to convicted murderers Bruce Ward and Don Davis. They have the earliest of the execution dates, Oct. 21.

Hutchinson said he expects the execution dates to be challenged in court, but he thinks the eight offenders have gotten "finality" in their cases and have exhausted all of their standard appeals.

Hutchinson spokesman J.R. Davis said the governor is "fulfilling" a duty of his office by setting the dates. "It's not something he takes lightly at all," J.R. Davis said. "But these crimes were heinous, and they were sentenced to death because of these crimes. He will carry those out."

Jeff Rosenzweig, an attorney for the eight men, said he will seek a court injunction to delay the executions. He noted that a lawsuit filed in June seeking disclosure of the source of the drugs used in executions is still pending. Act 1096, which was passed during this year's legislative session, prohibits the Arkansas Department of Correction from disclosing the source of the execution drugs, but Rosenzweig said his clients have a right to know who made the drugs. "There are some very serious issues, starting with the fact that the state wants to hide what drugs they're using or where they got them from. They want to hide that," Rosenzweig said. Divulging that information "tells us if it's a legitimate supplier or some fly-by-night operation. If it's a fly-by-night operation, it's torture."...

A combination of legal challenges and a lack of availability of lethal-injection drugs has halted executions in Arkansas for nearly a decade. The state's last execution was that of Eric Nance in November 2005. Nance was convicted of the 1993 murder of 18-year-old Julie Heath of Malvern. He was put to death using a three-drug cocktail of phenobarbital, potassium chloride and a paralytic agent.

As of Wednesday, a Department of Correction spokesman said, there were 26 other inmates on death row.

The eight executions will occur in pairs, J.R. Davis said, because "it's more efficient to do two on one date." He and Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said all eight have exhausted their appeals....

The eight men whose execution dates are now set are challenging in Pulaski County Circuit Court the legitimacy of the state's death-penalty laws.

In 2013, then-Arkansas Attorney General Dustin McDaniel's office reached a settlement with the men, promising to disclose the source of the drugs that would be used in their executions. Act 1096 barred the release of that information, so Rosenzweig and other attorneys sued.

Rosenzweig conceded that several similar challenges have failed in federal courts across the country but said none of those challenges involved a pre-existing agreement between the prisoners and the state to share that information. Rosenzweig argues that his clients have a right to make sure the execution drugs come from a reputable source so that the risk of pain during the executions can be minimized.  "We have a situation that the other states didn't have ... it's very different from us wandering into the court and saying 'Tell me this!' We're dealing with a commitment, a contract, an agreement made by the state," Rosenzweig said. "This has ramifications far beyond executions."

Until recently, state officials had difficulties obtaining lethal-injection drugs. In 2011, the state handed over its supply of the execution drug sodium thiopental to federal drug agents after the state's prison department got the drug from a wholesaler operating out of a driving school in London. In June, the state obtained potassium chloride, vecuronium bromide and midazolam at a cost of $24,226.40.

Midazolam's effectiveness as a sedative in executions has been questioned after some botched executions, including that of Clayton Lockett, who struggled and convulsed for 43 minutes during his April 2014 execution in Oklahoma. In June, the U.S. Supreme Court, rejected claims that Oklahoma's use of midazolam violated death-row inmates' Eighth Amendment rights, and ruled that midazolam could continue to be used in executions.

On Aug. 6, the Arkansas Department of Correction formalized its policies and procedures for carrying out executions. On Sept. 1, Rutledge asked that the governor schedule the executions.

September 11, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

DOJ files amicus brief in PA Supreme Court supporting prosepctive "constructive denial of counsel claims"

As reported in this press release, the US "Department of Justice has filed an amicus curiae brief in the Supreme Court of Pennsylvania in Adam Kuren, et al. v. Luzerne County, et al.," a case concerning local county's public defense structure.  Here is more about the case and the filing via the press release:

The class action asserts that the public defense system in Luzerne County, Pennsylvania, is so underfunded and poorly staffed that the attorneys appointed to represent indigent adults accused of committing criminal acts are attorneys in name only.  The department’s brief focuses solely on the question of whether indigent defendants can bring a civil claim alleging a constructive denial of counsel under the Sixth Amendment to the United States Constitution.  This brief represents the department’s first filing to address constructive denial of counsel in a state’s highest court.

“For too many public defenders, crushing caseloads and scarce resources make it impossible to adequately represent clients who need and deserve assistance in legal matters,” said Attorney General Loretta E. Lynch.  “The Constitution of the United States guarantees adequate counsel for indigent defendants, and the Department of Justice is committed to ensuring that right is met.”

“This brief recognizes the importance of the right to counsel as fundamental to a fair criminal justice process,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Civil Rights Division.  “The Civil Rights Division will continue to ensure that this essential right is protected.”...

In Kuren, the plaintiffs allege that their Sixth Amendment right to counsel has been violated by the failure of the county to provide adequate resources to the Luzerne County Office of the Public Defender (OPD).  According to the plaintiffs, due to the overwhelming volume of work, OPD lawyers are unable to engage in many of the basic functions of representation, including conferring with clients in a meaningful way prior to critical stages of their legal proceedings, reviewing client files, conducting discovery, engaging in motion practice, conducting factual investigations or devoting the time necessary to prepare for hearings, trials and appeals.  The plaintiffs claim that the conditions are systemic and so egregious that although a lawyer may technically be appointed to represent them, they will be constructively denied their right to counsel.

In its amicus brief, the department asserts that, “the Sixth Amendment right to counsel requires more than the mere appointment of a member of the bar.” Additionally, the amicus brief goes on to explain that the right of indigent criminal defendants to an attorney may be violated by the government’s “actual denial of counsel or by a constructive denial of counsel.” A civil action to remedy such violations is viable when traditional markers of representation such as “timely and confidential consultation with clients, appropriate investigation, and meaningful adversarial testing of the prosecution’s case” are systemically absent or compromised and when substantial structural limitations “such as a severe lack of resources, unreasonably high workloads, or critical understaffing of public defender offices” result in such absence or limited representation.

This notable DOJ amicus brief is available at this link.

September 11, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Thursday, September 10, 2015

Is Donald Trump's bluster hurting the cause of federal sentencing reform?

The question in the title of this post is prompted by this notable lengthy new TPM piece sent to me by a helpful reader and headlined "How Donald Trump Threatens To Blow Up Bipartisan Criminal Justice Reform." Here are excerpts:    

A long-awaited, hard-fought criminal justice reform push is coming to Washington this fall, with lawmakers of both parties making progress on legislation to curb mass incarceration. But after spending years convincing lawmakers that tackling the issue of mass incarceration would not make America more dangerous or put their political careers in jeopardy, advocates are now watching with growing dread as the GOP primary veers back toward the usual tough on crime rhetoric.

Just a few months ago, reformers were celebrating that most of the 2016 GOP pack had signaled that, at least in theory, they supported retooling America's justice system. But, as has been the case with so many other sensitive issues, the entrance of Donald Trump has changed the dynamic. Now instead of talking about criminal justice reform, the GOP primary contenders are warning of a supposed nationwide crime spike, touting the mandatory-minimums in "Kate’s Law," and lobbing “soft on crime" accusations.

“I’m concerned about the impact on the push for justice reform because we’re expecting a bill at some point this month,” Jason Pye, director of Justice Reform at the conservative FreedomWorks, told TPM. “I’m concerned about the impact of the rhetoric on that.”

Trump may not solely be to blame for the shift in tone. But in interviews with TPM before his entrance in to the race, justice reform advocates expressed cautious optimism that the GOP field had more or less coalesced around curbing mass incarceration, and they believed it was unlikely to become a flashpoint in the primary.

Trump may have conflated the issue, they now contend, by linking illegal immigration and violent crime, thus prompting many of his rivals to take harder lines, too. Coupled with warnings of a summer crime spike, the campaign trail has taken a turn back to the ‘90s, with candidates falling into old patterns of invoking crime fears to rile their constituencies.

“For the most part these candidates aren’t talking about these issues right now, it’s largely focused one person and we know who that person is, for better or for worse,” said Pye of FreedomWorks, the major DC advocacy outfit with Tea Party roots that plays an important role in pushing criminal justice reform from the right....

Last week, Trump released an ad attacking former Gov. Jeb Bush that critics said echoed the notorious Willie Horton ad that Bush's father used against Michael Dukakis in the 1988 presidential race.  The ad flashes the mugshots of undocumented immigrants charged or convicted of murder over Jeb Bush's infamous immigration is an "act of love" comments, and ends with placards saying "Love? Forget Love. It's Time Get Tough!" Bush's spokesperson responded by calling Trump a "soft on crime liberal."

“They look like tweedledum and tweedle dumber in terms of this very retro style of exploiting these old arguments,” liberal justice reform leader Van Jones said in an interview with TPM last week, referring to the Trump and Bush spat.

Meanwhile, conservatives have taken a harsh line on Black Lives Matter, a movement that includes calls for overhauling law enforcement and justice policies. Led by Fox News, conservatives have accused the protest movement, without basis, of inciting violence against police officers.  Trump accused Black Lives Matter this week of "looking for trouble” and suggested they were being "catered to" by Democrats.

The rhetoric has spread beyond Trump, which is of particular concern to criminal justice reform advocates. A few high-profile police deaths have prompted candidates like Sen. Ted Cruz (R-TX) and Wisconsin Gov. Scott Walker (R) to blame the Obama administration for, as Walker put it, “a tendency to use law enforcement as a scapegoat.” New Jersey Gov. Chris Christie (R) has called for the return of stop and frisk, vowed to crack down on marijuana legalization, and blamed “liberal-leaning mayors and cities” and their “lax criminal justice policies” for the stabbing death of a former intern in Washington, D.C.

“There are two things that are troubling,” said Inimai Chettiar, director of Justice at the Brennan Center. “One, that people are saying that there is a crime wave now and they’re implying that crime is going to be going up as a permanent trajectory -- which is wrong -- and that second people are blaming criminal justice policies and particularly policing policies for this.”...

Already, balancing the various concerns of those interest groups was a delicate dance for lawmakers hammering out federal legislation.  But heated campaign claims -- be it about Black Lives Matter, undocumented immigrants or police fatalities -- isn’t helping to smooth over tensions....

Nevertheless, Senate advocates for reform insist legislative progress can be made despite the campaign trail rhetoric. “There’s been heated rhetoric for decades around justice reform,” said Ben Marter, a spokesman for Sen. Dick Durbin (D-IL), who is involved in crafting the anticipated compromise bill.  “But the senators negotiating this legislation have put their partisan differences aside to negotiate a solution in good faith.”

Likewise, advocates are hopeful the most ardent justice reformers in the GOP field will resist relying on such language.  “I would get worried if suddenly other candidates less desperate and flailing than Governor Bush started jumping on that bandwagon,” Jones said.

But the proposal known as Kate’s Law shows how easily legislative progress can be undercut by the kind of the knee-jerk reactions to sensationalized tragedies that contributed to the creation of mass incarceration policies in the first place. The legislation, inspired by Steinle's murder, would impose mandatory sentencing minimums on undocumented immigrants who return to U.S. after being deported and, according to Families Against Mandatory Minimums, would add nearly 60,000 people to the federal prison population.

Trump has made Steinle’s murder a focal point of his campaign (despite the desires of her family), and conservative media have fanned the flames. Cruz -- who has previously touted his interest in criminal justice reform -- has embraced the measure, while other candidates have also expressed support. So far, cooler heads in Congress have prevented Kate’s Law from gaining traction there. “Watching Kate’s Law unfold is like watching history repeat itself,” FAMM government affairs counsel Molly Gill told TPM, comparing it to 1986 drug overdose by college basketball star Len Bias that led to federal mandatory drug sentencing. “We’ve come a long way in the last 30 years in our understand of crime and recidivism and using evidence-based approaches. But a lot of times we’re still legislating like that never happened."

​For years, criminal justice reformers have labored to convince politicians that dismantling ‘80s and ‘90s era crime legislation -- through cutbacks on mandatory minimums or softening of drug laws -- will not making them look “soft on crime.” The best proof they had was the success of a number of state lawmakers -- especially in red states -- in curbing mass incarceration without facing political consequences. They have also had to do this working within a tenuous coalition balancing competing priorities. “With consensus around criminal justice reform from both sides of the aisle that hasn’t been seen for a generation, it would be a shame for presidential candidates to undermine this by exploiting negative imagery and stereotypes for mere political gain,” said Janai Nelson, associate director-counsel of the NAACP Legal Defense and Educational Fund, in a statement to TPM.

September 10, 2015 in Campaign 2016 and sentencing issues, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (8)

Prez Obama makes a new (and a renewed) nomination to the US Sentencing Commission

Late yesterday, as detailed in this official press release, "President Obama nominated Judge Richard Franklin Boulware II and Judge Charles R. Breyer to serve on the United States Sentencing Commission." Hard-core sentencing fans know that Judge Breyer has been serving on the USSC since 2013, so his nomination is really just a reappointment, but Judge Boulware brings new blood to this commission, and here is his bio from the White House Press release:

Judge Richard Franklin Boulware II is a United States District Judge for the District of Nevada, a position he has held since June 2014.  Prior to his appointment to the bench, he worked at the Federal Public Defender’s Office in Las Vegas from 2007 to 2014, where he served as the lead attorney on complex white-collar cases from 2010 to 2014. From 2003 to 2007, he was a trial attorney at the Federal Defenders of New York.  Judge Boulware began his legal career as a law clerk to the Honorable Denise Cote of the United States District Court for the Southern District of New York from 2002 to 2003.  He received his J.D. in 2002 from Columbia Law School and his A.B. cum laude in 1993 from Harvard College.

In addition to being excited that Prez Obama has nominated a new judge and a former federal public defender to serving on the Commission, I am now hoping that Judge Boulware's appointment could mean future USSC conferences might get slated for Las Vegas.

Jokes aside, because the USSC has been short of commissioners during a very busy time for federal sentencing reform, I am glad Prez Obama has finally moved to fill one of the open spots on the Commission. I sincerely hope Judge Boulware secures a speedy confirmation and that Prez Obama soon nominates another commissioner as well.

September 10, 2015 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Validity of Pennsylvania Gov halting of death executions considered by state Supreme Court

As reported in this new AP piece, "Pennsylvania Gov. Tom Wolf's lawyers defended his use of death row reprieves to achieve a moratorium on executions, a promise he made on the campaign trail, while prosecutors challenged its constitutionality at a hearing Thursday before the state Supreme Court." Here is more on the hearing:

The lead attorney for Wolf, whose 7-month-old strategy has angered prosecutors and energized death penalty foes, said the only legal question is whether the governor has authority to issue reprieves.  "The answer is clearly 'yes,'" said H. Geoffrey Moulton Jr., a deputy in the governor's Office of General Counsel.  Moulton acknowledged that Wolf cannot suspend the death penalty but said he can grant temporary reprieves without having to explain his reasons.

A top lawyer for the Philadelphia district attorney's office, which filed a court challenge days after Wolf announced his plan, said the governor is improperly using reprieves by tying them to an overdue report from a legislative task force on capital punishment. "We're waiting for something to be satisfactorily addressed that can never be addressed at all," said Hugh Burns, chief of the office's appeals unit.

"You don't know that," Justice Max Baer interjected.  "We don't have the report."

All five justices quizzed the lawyers.  Justices Debra Todd and J. Michael Eakin questioned whether Wolf's strategy is technically a moratorium or merely a series of individual reprieves.  "He announced a moratorium, not a reprieve," Eakin said.

The case before the state's highest court case revolves around condemned prisoner Terrance Williams, whose scheduled March execution for the tire-iron beating death of another Philadelphia man more than 30 years ago was canceled by the first of three reprieves that Wolf's office says he has granted since February....

Wolf said he intends to continue granting reprieves until the Pennsylvania Task Force and Advisory Committee on Capital Punishment makes its recommendations and they are "satisfactorily addressed."

Some prior related posts:

September 10, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Notable collective makes plans for "smart on crime" criminal code reform in Ohio

My local Columbus Dispatch has this new Ohio criminal justice reform story headlined, "Statehouse leaders push for shorter prison sentences, reducing prison population."  Here are the (still a bit fuzzy) details concerning what is afoot in the Buckeye state:

Ohio officials are undertaking a sweeping reform of the state’s criminal justice code, potentially resulting in shorter prison sentences and fewer people going to prison for non-violent drug crimes.

An unusual bipartisan coalition, including top legislative leaders, tax reformer Grover Norquist, an American Civil Liberties Union official, and Piper Kerman, author of Orange is the New Black: My Year in a Women's Prison, announced plans today to overhaul Ohio’s lengthy and cumbersome criminal code top-to-bottom.

“No one is here to say today that criminals should not be punished. We are here to say that not all crimes or criminals are created equal,” Senate President Keith Faber, R-Celina, said at a Statehouse press conference. “This is not about being hard or soft on crime. It’s about being smart on crime.”

No specifics were announced. Exactly how the criminal code will be overhauled will be up to the 24-member Ohio Criminal Justice Recodification Committee appointed by the legislature. Faber said he told the committee to “swing for the fences” when it comes to big picture reform ideas. But he balked when asked about two specific areas: revising parole standards for current inmates and marijuana legalization.

The consensus of speakers was that the reform goals are reducing the prison population by incarcerating fewer non-violent drug offenders and people with mental health issues, eliminating mandatory, flat sentences, and removing barriers for ex-offenders to return to society....

Speaker after speaker criticized the burdensome incarceration rate in Ohio and the U.S., the highest in the world. “Locking people in cages is extreme and dehumanizing,” said Allison Holcomb, head of the ACLU’s national Smart Justice program. “This is the top priority for us.”

Norquist, president of the conservative Americans for Tax Reform, said he views reform from more of an economic standpoint. “We have too many people in prison and not the right people in prison,” he said. That is costing taxpayers far too much, he said.

Kerman, now living in Columbus, came to public attention as author of her real-life story that led to the Netflix series, Orange is the New Black. “I’m fairly confident I’m the only person up here with a felony,” Kerman said opening her remarks. Following her release from a Connecticut prison on a drug-related money laundering charge, she became an advocate for sentencing and parole reform. She is teaching writing to inmates at two Ohio prisons.

Faber said the recodification committee, which is chaired by Auglaize County Common Pleas Judge Fred Pepple, does not have a specific deadline for completing its work. The final recommendations must be passed by the General Assembly.

September 10, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

New Justice Department sound and fury about white-collar prosecutions signifying....?

The interrupted question in the title of this post is my first-cut reaction and uncertainty in response to this front-page New York Times report on new Justice Department guidance concerning white-collar prosecutions.  The NYTimes piece is headlined "Justice Department Sets Sights on Wall Street Executives," and here are excerpts:

Stung by years of criticism that it has coddled Wall Street criminals, the Justice Department issued new policies on Wednesday that prioritize the prosecution of individual employees — not just their companies — and put pressure on corporations to turn over evidence against their executives.

The new rules, issued in a memo to federal prosecutors nationwide [which can be accessed here], are the first major policy announcement by Attorney General Loretta E. Lynch since she took office in April. The memo is a tacit acknowledgment of criticism that despite securing record fines from major corporations, the Justice Department under President Obama has punished few executives involved in the housing crisis, the financial meltdown and corporate scandals.

“Corporations can only commit crimes through flesh-and-blood people,” Sally Q. Yates, the deputy attorney general and the author of the memo, said in an interview on Wednesday. “It’s only fair that the people who are responsible for committing those crimes be held accountable. The public needs to have confidence that there is one system of justice and it applies equally regardless of whether that crime occurs on a street corner or in a boardroom.” Photo

Though limited in reach, the memo could erase some barriers to prosecuting corporate employees and inject new life into these high-profile investigations. The Justice Department often targets companies themselves and turns its eyes toward individuals only after negotiating a corporate settlement. In many cases, that means the offending employees go unpunished.

The memo, a copy of which was provided to The New York Times, tells civil and criminal investigators to focus on individual employees from the beginning. In settlement negotiations, companies will not be able to obtain credit for cooperating with the government unless they identify employees and turn over evidence against them, “regardless of their position, status or seniority.” Credit for cooperation can save companies billions of dollars in fines and mean the difference between a civil settlement and a criminal charge....

But in many ways, the new rules are an exercise in public messaging, substantive in some respects but symbolic in others. Because the memo lays out guidelines, not laws, its effect will be determined largely by how Justice Department officials interpret it. And several of the points in the memo merely codify policy that is already in place.

“It’s a good memo, but it states what should have been the policy for years,” said Brandon L. Garrett, a University of Virginia law professor and the author of the book “Too Big to Jail: How Prosecutors Compromise With Corporations.” “And without more resources, how are prosecutors going to know whether companies are still burying information about their employees?”

It is also unknown whether the rules will encourage companies to turn in their executives, but Ms. Yates said the Justice Department would not allow companies to foist the blame onto low-level officials. “We’re not going to be accepting a company’s cooperation when they just offer up the vice president in charge of going to jail,” she said.

Under Attorney General Eric H. Holder Jr., the Justice Department faced repeated criticism from Congress and consumer advocates that it treated corporate executives leniently. After the 2008 financial crisis, no top Wall Street executives went to prison, highlighting a disparity in how prosecutors treat corporate leaders and typical criminals. Although prosecutors did collect billions of dollars in fines from big banks like JPMorgan Chase and Citigroup, critics dismissed those cases as hollow victories.

Justice Department officials have defended their record fighting corporate crime, saying that it can be nearly impossible to charge top executives who insulate themselves from direct involvement in wrongdoing. Ms. Yates’s memo acknowledges “substantial challenges unique to pursuing individuals for corporate misdeeds,” but it says that the difficulty in targeting high-level officials is precisely why the Justice Department needs a stronger plan for investigating them....

Ms. Yates, a career prosecutor, has established herself in the first months of her tenure as the department’s most vocal advocate for tackling white-collar crime. She foreshadowed plans for the new policy in a February speech to state attorneys general, in which she declared that “even imposing unprecedented financial penalties on the institutions whose conduct led to the financial crisis is not a substitute for holding individuals within those institutions personally accountable.”...

While the idea of white-collar investigations may conjure images of raids of corporate offices by federal agents, the reality is much different. When suspected of wrongdoing, large companies typically hire lawyers to conduct internal investigations and turn their findings over to the Justice Department. Those conclusions form the basis for settlement discussions, and they are likely to take on greater significance now that companies will be expected to name names....

Still, even if the Justice Department’s effort succeeds, it will not automatically put more executives behind bars. Mr. Garrett, the University of Virginia law professor, analyzed the cases in which corporate employees had been charged. More than half, he said, were spared jail time.

I am going to need to read the new Yates memo a few times before I will have any sense of whether and how this new guidance to federal prosecutors is likely to really "move the needle" with respect to white-collar prosecutions. But, in part because my white-collar expertise and experience is at the sentencing stage after an individual has been charged and convicted of a federal economic crime, I am not sure I will ever be able to see clearly from the very back-end of the federal criminal process how much this memo could alter what typically happens at the very front-end of the federal criminal process in the corporate crime world.

In turn, I would be grateful to receive (in the comments or off-line) input from persons with more experience than me on the front-end of corporate criminal investigations about whether this Yates memo signifies much or not so much in the white-collar world. If nothing else, I suspect the Yates memo will prompt many "client alert memos" from big corporate law firms to their corporate clients, and perhaps what those client alerts say about the Yates memo could matter as much as what the Yates memo itself says.

UPDATE: At this link one can now find the text of the big speech Deputy Attorney General Sally Quillian Yates delivered today at New York University School of Law concerning DOJ's "New Policy on Individual Liability in Matters of Corporate Wrongdoing."  White-collar practitioners will want to read the speech in full, and here is one thematic paragraph from the heart of the text:

But regardless of how challenging it may be to make a case against individuals in a corporate fraud case, it’s our responsibility at the Department of Justice to overcome these challenges and do everything we can to develop the evidence and bring these cases.  The public expects and demands this accountability.  Americans should never believe, even incorrectly, that one’s criminal activity will go unpunished simply because it was committed on behalf of a corporation.  We could be doing a bang-up job in every facet of the department’s operations — we could be bringing all the right cases and making all the right decisions.  But if the citizens of this country don’t have confidence that the criminal justice system operates fairly and applies equally — regardless of who commits the crime or where it is committed — then we’re in trouble.

September 10, 2015 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Notable passages showing Bill Otis sometimes agrees with criminal defense perspectives

I make Crime & Consequences a daily read because all the blog's contributors consistently make forceful and interesting points about crime and punishment.  Though I disagree with some perspectives (and especially some of the rhetorical flourishes) expressed at C&C, I especially appreciate efforts made by the C&C commentators to be thoughtful and forthright in expressing their views.  And, especially because I sometimes use this space to take on contentions made by Bill Otis, a few passages in a couple of recent posts have made me eager to spotlight Bill's embrace of positions (and funding commitments) typically associated with criminal defense attorneys rather than prosecutors.

For one example, on the topic of offender rehabilitation, Bill a few weeks ago had this post titled "Rehab Flops" noting this recent study about programming that made significant investment in employment-focused prisoner re-entry programs but resulted in "program group members [being] no less likely to have been convicted of a crime or incarcerated than control group members."  In reaction, Bill made these notable points (with my emphasis added):

First, genuine rehabilitation cannot come from a government program. It has to come from the inmate's heart. Once he decides he wants to change the way he deals with the world, he has a chance. Until then, he doesn't. The government is simply not wise enough to know how to make the fundamental change true rehabilitation requires, and I (for one) wouldn't want a government powerful enough to try.

Second, we should nonetheless increase our spending on rehab. The chances are low but the stakes are high. Almost every prisoner returns to civil society.  For his sake and for ours, every effort should be made to give him the best shot we can, even knowing the chances are poor.

For another example, on the topic of defense representation, Bill yesterday had this this post titled "Shocking Report: Defense Lawyers Find that Defense Lawyers Should Get More Money" noting the new NACDL report on federal indigent criminal defense discussed here.  Notwithstanding the snarky title of his post, Bill added this commentary that should warm the hearts of the authors of this report:

How to put an honest assessment of this "report?"  It's true.
Sorry to disappoint those waiting for the acid to be poured, but indigent defense counsel actually do deserve better pay and more resources.  (So do federal prosecutors, but that's another post).
I was an AUSA for 18 years, and it was my experience that federal defenders are underpaid for the quality of work they do.  They may be significantly underpaid....
Temperament varied quite a bit.  Some were there to insure the client got his rights protected and the government got put to its proof.  Some were there because they thought of the client as the Little Guy, the man who never had much of a chance in life.  Some were there because they had been fighting with authority figures since fifth grade.  And some were there because they thought you, the prosecutor, were a poorly disguised Nazi, and were happy to let you know it in every single court appearance.
Still, for whatever the attitude, the quality of representation ranged from plainly adequate to outstanding. They put in long hours.  In private practice, they would have made much more.
There is an unpleasant truth that we, as taxpayers, need to understand:  Justice isn't cheap.  This applies to the death penalty, incarceration, (attempts at) rehabilitation, and salaries for prosecutors and defenders.  If you want quality, sooner or later you have to pay for it.
The NACDL is right.  It's time to increase the compensation of defense lawyers.   

September 10, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

"No Reason to Blame Liberals (or, the Unbearable Lightness of Perversity Arguments); Review of the First Civil Right: How Liberals Built Prison America, by Naomi Murakawa"

The title of this post is the title of this new review by Margo Schlanger available via SSRN discussing a provocative book about the American political left's role in mass incarceration.  Here is the abstract:

This is a review of The First Civil Right: How Liberals Built Prison America, by political scientist Naomi Murakawa.  Murakawa takes as her target a conventional wisdom that explains the rise of mass incarceration as a victory of Republican law-and-order over Democratic civil rights.  Rather, she argues, starting right in her subtitle, “liberals built prison America.”  It was liberals, she claims, who “established a law-and-order mandate: build a better carceral state, one strong enough to control racial violence in the streets and regimented enough to control racial bias in criminal justice administration.”  Her major point along these lines is that the liberal preoccupation with using fair, non-racist procedures has contributed importantly to the growth of the carceral state, taming reform urges, entrenching the punitive regime.  This argument sounds in perversity — on Murakawa’s account, liberalism’s attempt to improve racial justice using procedural tools not only fails, it is counter-productive, entrenching and worsening the system’s inequities.

The review critiques Murakawa's focus on federal crime policy as missing the more important state and local dynamics.  In addition, it argues that Murakawa's perversity argument is essentially aesthetic — that she adduces only post-hoc/propter-hoc kind of evidence that the liberal proceduralism she highlights has accompanied the ballooning of the incarcerated population.  That is far from enough to convict generations of liberals — many though not all of whom decried overincarceration, as well as the unfair procedures that accompanied it — of the charge that they “built prison America.”

Prior related posts:

September 10, 2015 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Wednesday, September 09, 2015

"Federal Indigent Defense 2015: The Independence Imperative"

The title of this post is the title of this notable new report released today by the National Association of Criminal Defense Lawyers. Here is a summary of the reports contents via excepts from this NACDL news release:

After over 18 months of study, more than 130 individuals interviewed (including federal judges, federal defenders, Criminal Justice Act (CJA) panel attorneys, Administrative Office of the U.S. Courts (AO) personnel, and others, representing 49 states and all federal judicial circuits), hundreds of documents reviewed, and surveys conducted, the National Association of Criminal Defense Lawyers (NACDL) today officially releases a major report — Federal Indigent Defense 2015: The Independence Imperative.  The report, adopted by NACDL's Board of Directors at its recent annual meeting, reflects the significant work of NACDL's Task Force on Federal Indigent Defense and offers "Seven Fundamentals of a Robust Federal Indigent Defense System," which are set forth below.

The Task Force was directed to examine broadly the federal indigent defense system, covering the entire manner in which the federal indigent defense system operates.  That said, over the past few years, several troubling developments in the administration of the nation's federal indigent defense system have highlighted its lack of independence. From the severe funding cuts and resulting systemic damage during sequestration in the fall of 2013 to the AO's demotion of the Defender Services Office from a "distinct high-level office" within the AO to its placement as one of the judiciary's many "Program Services," like Probation and Pretrial Services or Judiciary Data and Analysis, to the ways in which the lack of independence has played a key role in preventing federal defenders and panel attorneys from appointment to aid clients as part of a historic clemency effort undertaken by NACDL and others, the report documents the deficiencies of the current system.

The report also focuses the day-to-day adverse consequences of a system that is wholly at odds with the very first principle of the American Bar Association's Ten Principles of a Public Defense Delivery System — "The public defense function, including the selection, funding, and payment of defense counsel, is independent."  The report details that many panel lawyers are forced to endure long delays to receive payment for their services and often face arbitrary cuts at the hands of judicial officers whose decisions need not be explained and cannot be challenged. The report also explores concerns regarding the methods by which counsel appointments are made in individual cases, as well as those inherent in appointments to serve on CJA panels, among other matters.

As explained by NACDL President E.G. "Gerry" Morris, "At his confirmation hearing, Chief Justice John Roberts explained that the role of a judge is like an umpire, ‘to call balls and strikes and not to pitch or bat.' This important report reveals that in today's federal indigent defense system, the umpire is doing far more than that. And we all know that umpires should not be deciding how, when, and under what circumstances players get paid or on which team they play."

NACDL Executive Director Norman L. Reimer said: "While there is much to be admired in the federal indigent defense system, its operation — unlike the prosecutorial function — under the structure of the judiciary, together with the seismic events of recent years — sequestration, demotion, and the clemency initiative, make a compelling case for greater independence."

NACDL's Seven Principles of a Robust Federal Indigent Defense System:

  • Control over federal indigent defense services must be insulated from judicial interference.
  • The federal indigent defense system must be adequately funded.
  • Indigent defense counsel must have the requisite expertise to provide representation consistent with the best practices in the legal profession.
  • Training for indigent defense counsel must be comprehensive, ongoing, and readily available.
  • Decisions regarding vouchers (i.e., payment to panel attorneys) must be made promptly by an entity outside of judicial control.
  • The federal indigent defense system must include greater transparency.
  • A comprehensive, independent review of the CJA program must address the serious concerns discussed in this report.

September 9, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Noting federal prison reforms possible without statutory changes

A helpful reader alerted me to this notable Forbes article by Walter Pavlo which highlights ways the federal prison population could be lowered without waiting for whatever Congress might (or still might not) end up doing to reform federal sentencing statutes.  The piece is headlined "Prison Reform Is All The Rage, But A Real Opportunity For Change Might Be Missed," and here are excerpts:

Many past U.S. Congress’s have drafted criminal reform bills, only to have them lay dormant in committee.  Traditionally, the press releases and sound-bites have only provided false hope to those serving time.  The SAFE Act is the most recent and has received some positive press but lacks significant sponsorship in Congress.  Then there’s the Smarter Sentencing Act and the Second Chance Reauthorization Act that has recently lost some momentum.  There are others, but none worth mentioning....

There are many ways to use existing legislation and policies to reduce populations that need more focus and advocacy.  First, we need to allow more old and sick inmates to go home under compassionate release programs by crediting “earned” good conduct time towards program eligibility.  Second, rather than building new prisons, the federal government should divert the funding to build out of the Residential Reentry Centers (RRC) infrastructure and allow for more direct community placement designations, which was the true intent of the Second Chance Act under 18 USC 3624.  Next, early deportation options should also be explored for those who are in the U.S. illegally.

We have a problem of aging, sick inmates in the federal prison system.  There are currently six (6) major medical facilities that offer treatments for inmates for various ailments ranging from dialysis to chemotherapy.  It’s expensive with some estimates being as high as $57,000 per year per inmate.  The recidivism studies show far lower rates of recidivism for elderly offenders.

Halfway house, RRCs, offer a chance for inmates to serve the remainder of their time in the community working in a regular job, integrating with their family and learning skills. According to [Jack] Donson [a retired BOP employee], the BOP has the statutory authority to place offenders directly in halfway house at any time because the Federal Courts have made clear that RRC’s are penal or correctional facilities within the meaning of the applicable statues.  “Having a person in a community correctional treatment program including a job and integrating with their family is far better than any program the BOP could ever offer and inmate.”  So an RRC is basically a prison where inmates serve their debt to society … except that it would be MORE beneficial to most everyone....

While we wait for the next prison reform bill, let’s hope it is a comprehensive Omnibus Crime bill with both front end and back end (retroactive) measures that can be quickly implemented with a simultaneous build out of the RRC infrastructure. Congressmen and senators would do us all a service by putting pressure on the Department of Justice to use the existing policies and laws to begin changing prisons now.

September 9, 2015 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Tuesday, September 08, 2015

"The Pointless Banishment of Sex Offenders"

The title of this post is the headline of this New York Times editorial in today's paper.  Here are excerpts:

It’s a chilling image: the sex predator skulking in the shadows of a swing set, waiting to snatch a vulnerable child.

Over the past two decades, that scenario has led to a wave of laws around the country restricting where people convicted of sex offenses may live — in many cases, no closer than 2,500 feet from schools, playgrounds, parks or other areas where children gather. In some places, these “predator-free zones” put an entire town or county off limits, sometimes for life, even for those whose offenses had nothing to do with children.

Protecting children from sexual abuse is, of course, a paramount concern.  But there is not a single piece of evidence that these laws actually do that.  For one thing, the vast majority of child sexual abuse is committed not by strangers but by acquaintances or relatives. And residency laws drive tens of thousands of people to the fringes of society, forcing them to live in motels, out of cars or under bridges.  The laws apply to many and sometimes all sex offenders, regardless of whether they were convicted for molesting a child or for public urination.

Lately, judges have been pushing back.  So far in 2015, state supreme courts in California, Massachusetts and New York have struck down residency laws....  The United States Supreme Court has not yet weighed in on residency restrictions, although a 2003 ruling upholding mandatory registration for sex offenders suggested that such laws may violate the Constitution.

It is understandable to want to do everything possible to protect children from being abused.  But not all people who have been convicted of sex offenses pose a risk to children, if they pose any risk at all . Blanket residency-restriction laws disregard that reality — and the merits of an individualized approach to risk assessment — in favor of a comforting mirage of safety.

September 8, 2015 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15)

Highlighting headwinds for federal sentencing reform in coming critical period

Over at Crime & Consequences, Bill Otis has this extended new post headlined "The Biggest Obstacles Right Now to Sentencing 'Reform'."  The post provides a five-point account of recent developments enhancing the (always uphill) battle for significant federal sentencing reform, and here is how the post gets started:

From late spring through about the end of July, it was my sense that some kind of fairly significant sentencing "reform" bill was going to make more headway in this Congress than in the last, and conceivably could pass. More members of the majority party had expressed an openness to it than we had seen in the last Congress.

Probably the first sign of trouble was when the sentencing "reform" bill that had been promised before the August recess never showed up. I expect that one (or several) will show up now, but their content and their prospects for passage seem diminished from what they had been just six weeks ago.

As a former DOJ political appointee, Bill Otis has long been much more of an inside-the-Beltway player than I ever will ever be, and I surmise he still has considerable connections with establishment GOP leaders in Congress.  Consequently, his latest prognostications here strike me as important as we all anticipate Senator Charles Grassley unveiling, perhaps as early as today as previewed here, a (big?) new sentencing reform bill that may be the one most likely to have a real chance to get to the President's desk in some form.

Even though Bill's sentencing analysis is sometime subject to sharp criticism (as recently noted here), I think his posts about sentencing reform arguments and prospects alway provide a useful reminder of how many different kinds of political and policy arguments can be made against changing the status-quo of tough-and-tougher sentencing.  Most fundamentally, when crime is in decline, Bill and others will be quick to say we should not risk changing what seems to be working; when crime seems to be spiking, Bill and others will be quick to say we should not risk going soft now.

Some prior related posts:

September 8, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Two notable new papers about plea bargaining procedures and practices

Practitioners know that the vast majority of criminal convictions are the results of plea deals.  But it has taken some time for formal legal jurisprudence and especially legal scholarship to catch up to this reality.  Fortunately, a lot of smart folks are starting to pay a lot more attention to plea dynamics, and these two notable new papers on SSRN reflect these realities:

Plea Bargaining's Baselines by Josh Bowers

Abstract: In this symposium essay, I examine the Court’s unwillingness to take seriously the issue of coercion as it applies to plea-bargaining practice.  It is not so much that the Court has ignored coercion entirely.  Rather, it has framed the inquiry in a legalistic manner that has made immaterial the kinds of considerations we might think most relevant to the evaluation.  The Court has refused to ask qualitative questions about felt pressure, prosecutorial motivation, or the risk or reality of excessive punishment. All that matters is legal permissibility.  A prosecutor may compel a defendant to plead guilty as long as she uses only code law to do so.  In this way, the Court’s coercion baseline is legalistic — it is defined by what the prosecutor is legally entitled to pursue.

Recently, however, the Court has shifted its constitutional focus from code law. In a series of right-to-counsel cases, it has redefined prevailing plea-bargaining practice as the benchmark.  This amounts to an emerging extra-legalistic baseline, defined not by code law but rather by the parties’ efforts to circumvent it.  Of course, the Court did not mean to alter coercion’s landscape and almost certainly will not do so.  My intention is to demonstrate only that the doctrinal building blocks are in place for the adoption of a better baseline — a proportionality baseline.  I defend this alternative extra-legalistic baseline and even prescribe a practical methodology for its discovery.  And, notably, my preferred approach is not without precedent.  The Court has applied analogously extra-legalistic baselines to claims of coercion in other constitutional contexts.

Training for Bargaining by Jenny Roberts and Ronald Wright

Abstract: While plea bargaining dominates the practice of criminal law, preparation for trial remains central to defense attorneys’ training.  Negotiation is still peripheral to that training. Defense lawyers enter practice with little exposure to negotiation techniques and strategies in the plea bargaining context, the most significant skills they use every day.

Empirical research on plea negotiations has concentrated on outcomes of negotiations rather than the process itself.  Our multi-phase field study examines the negotiation techniques that attorneys use during plea bargaining, as well as their preparation and training for negotiation.  This Article explores the data on the training aspects of our research.  It then discusses implications of the failure to train for bargaining by noting a variety of areas where training might improve case outcomes for defendants.

Surveys, interviews, and training agenda confirm our intuition about the lack of training for bargaining: Public defenders receive far less training in negotiation skills and strategies than they do in trial techniques.  Some defenders receive some limited training on negotiation skills in addition to trial skills, particularly when they first enter their offices. The topic of negotiation, however, almost disappears from the agenda for later training, even as trial skills remain front and center.

Leaders in public defender offices allow this training gap to continue when they view negotiation as more an art than a science, and not susceptible to rigorous analysis or systematic training.  The position that negotiation cannot be taught is demonstrably false and theoretically naïve.  Formal negotiation learning has proven effective in actual negotiations.  Negotiation theory also offers more concrete and comprehensive insights about sound practices than one can find in case law related to constitutional ineffective assistance of counsel, court rules and state statutes, or professional standards.

September 8, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, September 07, 2015

Lots of interesting criminal-justice reading for the long weekend

As I enjoy the tail end of a lovely holiday weekend, I will seek to honor laborers by here labroing to assemble links to a number of recent criminal-justice articles and commentaries from various media outlets.  Each of these pieces could merit its own separate post, but I am content today to throw them all together (in no particular order) with a hope that readers might flag whichever of the pieces they think justify special attention:

September 7, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Sunday, September 06, 2015

Digging deeply into the back-end of criminal justice systems

Regular readers are accustomed to seeing my praise in this space for Margaret Love's commentary about the federal clemency process and for the commentary and coverage of a range of back-end criminal justice issues at the Collateral Consequences Resource Center. These new posts at CCRC provide yet more support for my view that any and everyone interested in the so-called "back-end" of American criminal justice systems should be reading everything Margaret Love has to say and all the posts at CCRC:

September 6, 2015 in Clemency and Pardons, Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Connecticut prosecutors seek reconsideration of retroactive abolition of death sentences

This Reuters article, headlined "Prosecutors seek to re-argue case that ended Connecticut death penalty," reports on a notable (and seemingly long-shot) motion filed late last week in the Connecticut Supreme Court.  Here are the details:

Connecticut prosecutors asked the state Supreme Court on Friday to reconsider its recent decision on a narrow vote to end the state's death penalty, a clerk for the state Supreme Court said.

Prosecutors late Friday filed a motion asking the justices to allow them to re-argue the case in which justices called the death penalty cruel and unusual punishment and concluded that it "no longer comports with contemporary standards of decency."  The ruling, on a 4-3 vote, added Connecticut to the growing list of states backing away from the death penalty, including Nebraska and Maryland most recently.  Thirty-one states have the death penalty.

Prosecutors on Friday also asked the court to strike from the record a concurring opinion about racial bias in capital cases they said was barred as merely advisory, the clerk said.  In the opinion, Justices Flemming Norcott and Andrew McDonald wrote that racial and ethnic discrimination had "permeated the breadth of this state's experience with capital charging and sentencing decisions."

Prosecutors want to present new arguments in response to the majority opinions, including the rarity of executions in Connecticut, the delay in imposing death sentences and the danger of executing the innocent, the clerk said.

"The Division of Criminal Justice recognizes the complex legal and policy issues that the court confronted in this crucially important case," Chief State's Attorney Kevin Kane wrote in the motion.  "The process that the majority followed in reaching its conclusion deprived the division of the opportunity to address the concerns that drove the results and led the majority unaided by the time-tested adversarial process to inaccurate assumptions and errors of law," he wrote....

Connecticut in 2012 abolished capital punishment for future crimes but allowed the death penalty to be imposed for crimes previously committed. The current debate leaves 11 death row inmates in limbo.

I would guess that these sorts of motions for reargument in the Connecticut Supreme Court are almost never granted. But, as long-time readers know, death penalty cases can and often lead to some unusual legal developments.

Prior related posts:

September 6, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Friday, September 04, 2015

"I’m a public defender. It’s impossible for me to do a good job representing my clients."

The title of this post is the headline of this new Washington Post piece authored by Tina Peng, who is a staff attorney at the Orleans Public Defenders. Here are excerpts:

Our office represents 85 percent of the people charged with crimes in Orleans Parish but has an annual budget about a third the size of the district attorney’s. The American Bar Association recommends that public defenders not work on more than 150 felony cases a year. In 2014, I handled double that.

The United States accounts for less than 5 percent of the world’s population but almost 25 percent of the global prison population. The vast majority of people in prison are indigent: The Justice Department has estimated that 60 to 90 percent of criminal defendants nationwide cannot afford their own attorneys and that in 2007, U.S. public defender offices received more than 5.5 million cases....

The funding crisis is nationwide, and it is dire. When people ask how to push back against police misconduct, how to decrease the costs of mass incarceration and how to ensure fairer treatment of our nation’s most disenfranchised citizens, part of the answer lies in fully funding public defender’s offices and enabling us to represent our clients in a meaningful manner....

I went to law school to be a public defender. My frustration with our office’s persistent underfunding is not that it forces me to work long hours, represent numerous clients or make far less money than I would at a private law firm. It is that when we are constantly required to do more with less, our clients suffer.

Because we don’t have enough lawyers on staff, the week I passed the bar in 2013, I began representing people facing mandatory life sentences on felony charges. In Louisiana, people with as few as two prior nonviolent felony convictions can face mandatory life imprisonment on charges as minor as possession of a syringe containing heroin residue or, until recently, possession of a single joint. Defendants who cannot afford to make bond can sit in jail for 60 days while the district attorney decides whether to arraign them. An unconstitutionally high caseload means that I often see my new clients only once in those two months. It means that I miss filing important motions, that I am unable to properly prepare for every trial, that I have serious conversations about plea bargains with my clients in open court because I did not spend enough time conducting confidential visits with them in jail. I plead some of my clients to felony convictions on the day I meet them. If I don’t follow up to make sure clients are released when they should be, they can sit in jail for unnecessary weeks and months....

Unfortunately, budget cuts and a spiraling workload are not unique to Orleans Parish. Funding problems threaten poor people’s right to counsel across America.

In June, the American Civil Liberties Union sued Idaho, claiming that the state has failed to fund or improve its broken public defense system and has deprived indigent residents of their Sixth Amendment right to adequate legal representation. Indigent defendants in most Idaho counties have no lawyers at their first court appearances, where bail is set and pleas of guilty or not guilty are entered, according to the lawsuit. Many counties also pay attorneys who accept public defense contracts a flat fee, regardless of the number or seriousness of the cases each attorney handles. Some public defenders in Idaho carry caseloads that are double national standards....

Ultimately, it’s easy to forget what we’re talking about when we talk about the criminal justice system. I’ve been asked by my family members, my friends and my hairdresser why I represent criminals. The answer is that I, and other public defenders, don’t represent criminals. We represent poor people who were arrested and are facing criminal charges — charges on which they are presumed innocent until proven guilty in court. We represent members of our communities who have a right to real and meaningful legal representation, even if they are poor. My clients, like the millions of other people in America currently represented by public defenders, deserve better.

September 4, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (22)

Remarkable federal sentencing story pits prosecutors against each other

A colleague alerted me to a remarkable and disconcerting federal sentencing story from the Carolinas, which is reviewed in this local piece headlined "Gang Leader Sought Prosecutor’s Murder: In spite of threat, her superiors sought a lesser sentence." Here are the basics from the start of the article:

Federal prosecutor Denise Walker, who was forced into hiding for six weeks as a result of a drug dealer’s threats to have her killed, later resigned when her superiors in the U.S. Attorney’s office in Raleigh proposed a lesser sentence for the drug dealer and blocked any mention of his murderous intentions in a pre-sentencing report.

Walker had been the lead federal attorney on a task force of law enforcement professionals who flushed out and captured members of a criminal gang.  She resigned her position in March 2015 after learning of the intentions of her superiors, U. S. Attorney Thomas Walker (no relation to Denise Walker) and his top deputy John Bruce, to seek a reduction of the mandatory life sentence called for in federal guidelines for Reynaldo Calderon, the gang leaders who threatened to have her killed.

In exchange for Calderon’s cooperation with testimony against one of his associates, the government had proposed a 30-year sentence for Calderon, now age 31.  Denise Walker believed Calderon’s cooperation was insignificant and did not warrant any leniency.  At the sentencing hearing, at which she testified, she said her superiors downplayed the Calderon threat and even mocked her for being concerned about it.  And she termed the proposed lesser sentence and the omission of the death threat in the pre-sentencing hearing “deplorable.”

During the sentencing hearing, however, the judge presiding over the case shared her concern, denied the government’s request for a lesser sentence, and imposed the mandatory life sentence guidelines prescribed.

September 4, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, September 03, 2015

Julie Stewart of FAMM goes hard after Bill Otis for being "proven wrong time and time again"

Regular readers know I often note and express respect for the work and writings of both former federal prosecutor Bill Otis, who now writes most regularly at Crime & Consequences, and Julie Stewart, who is the President and Founder of Families Against Mandatory Minimums.   Today I must note and express amazement at the concerted efforts of one of these two taking on the other: Julie Stewart has this notable new Reason commentary headlined "The Former Prosecutor Who Consistently Gets Criminal Justice Reform Wrong: Former prosecutor Bill Otis has been mistaken over and over again when advising legislators against reducing drug sentences."  Here are excerpts mostly from the start and end of the piece:

No one expects our elected representatives to be experts in every area of public policy. At the same time, we have every right to expect that our representatives will consult policy analysts and experts who know what they're talking about, not someone who has been proven wrong time and time again. In the world of criminal justice, that someone is former federal prosecutor and Georgetown Law adjunct William Otis.

Over the past two decades, Bill Otis has become the Paul Ehrlich of criminal sentencing reform.  He is always certain in his convictions and nearly always wrong.  Moreover, like Ehrlich, Otis likes to scare the public with predictions of certain and impending doom, and he is immune to feelings of embarrassment or humiliation despite being proven spectacularly wrong over and over again....

[W]hereas Ehrlich saw overpopulation as the culprit, Otis thinks shortening sentences for nonviolent drug offenders will be America's undoing.  Indeed, every time Congress or the U.S. Sentencing Commission has considered even mild sentence reductions over the past two decades, Otis has gone full Chicken Little.  He has been wrong every time....

The nationwide drop in crime and prison crowding should be celebrated.  Less violent crime means fewer murder victims, fewer robbery victims, and fewer assault victims. Smaller prison populations means savings for taxpayers and more money to spend on what actually does reduce crime — community policing and supervision practices like "short, swift, and certain."  None of these gratifying results would have been possible if Otis's theory were correct — or if any lawmakers outside the Beltway had heard of Otis and took his views seriously.  While Otis has been consistently wrong, thankfully lawmakers have ignored him....

Committed to his prison-is-always-the-answer ideology, Otis derided the [Fair Sentencing Act], saying it should be called the "Crack Dealers Relief Act."  When the U.S. Sentencing Commission lowered the crack guideline and made it retroactive in accord with the FSA, Otis predicted it would lead to an increase in crime....  On his blog, Otis cranked up the fear machine. He predicted "misery" when "thousands of crack dealers" would be "put back on the street prematurely" to terrorize their communities.

Fortunately for those of us concerned about public safety, Otis was wrong again — amazingly wrong.  Since passage of the FSA, the crime rate, the prison population, and crack usage are all down!  It bears repeating.  Otis said the changes would cause "misery" and "inevitably lead to more crime."  Instead, while thousands of offenders have received fairer sentences, the crime rate has fallen, crack use is down, and taxpayers have saved millions from being wasted on unnecessary prison costs....

Otis is impervious to facts and evidence.  He will quote Professor Steven Levitt's finding that greater reliance on incarceration helped reduce crime in the 1990s and then ignore Levitt's later conclusion that the country has gone too far and that prisons should reduce their populations by one-third.  Otis will say, as he does in National Review, that the movement for sentencing reform "is strictly interest-group — and billionaire — driven, inside-the-Beltway," which would be fine if you did not already know that the reform movement began in the states and is being promoted in Washington, DC by insiders like Senators Ted Cruz (R-Tx.), Rand Paul (R-Ky.), and Mike Lee (R-Utah).

Otis's amazing record of wrongness would be interesting and perhaps even funny if he, like fellow fear-peddler Paul Ehrlich, were exiled from the world of rational public policy making.  But media reports have suggested that some members of Congress actually listen to Otis.  If that's true, then we really do have a good reason to be scared.

Yowsa.   Because I consider both Julie Stewart and Bill Otis to be personal friends, I am going to be trying hard to stay out of this sentencing sparring.  But I am also going to try to report fairly on any rounds of this fight, and thus will be quick to post any response that Bill Otis provides in his own defense in the days ahead. 

UPDATE:  Bill Otis has a response up at Crime & Consequences: Are Sentencing "Reformers" Getting Worried?.  Here is a snippet from Bill's introduction to his brief substantive refutation of points made by Julie Stewart:

I think it unbecoming and unwise to get caught up in this sort of thing.  If you hold a controversial position, you can expect some heat.  And if you spend all your time answering your critics, you'll never do anything else.  You'll certainly abandon any hope of making your own points. Accordingly, with the exceptions noted below, I am not going to engage with Ms. Stewart. (If she seeks a live debate with me, that would be another matter).

I'm quite sure she is sincere. But, for reasons stated in hundreds of things I have said on this blog and elsewhere, I believe she is in error.

September 3, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, National and State Crime Data, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22)

South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer

As reported in this new AP piece, the "man accused of killing nine black churchgoers during a Bible study will face the death penalty, according to court documents filed Thursday." Here is more:

The documents said prosecutors would pursue the death penalty against Dylann Roof, 21, because more than two people were killed, and that others' lives were put at risk.

Prosecutors also said they intended to present evidence on Roof's mental state, adult and juvenile criminal record and other conduct, as well as his apparent lack of remorse for the killings.

Roof faces state charges including nine murder counts in the June 17 slayings at Emanuel African Methodist Episcopal Church. He is expected in court again on those charges in October.

He also faces federal charges including hate crimes and obstruction of the practice of religion, some of which are also eligible for the death penalty in that system.  U.S. Attorney General Loretta Lynch has said federal charges were necessary to adequately address a motive that prosecutors believe was unquestionably rooted in racial hate. South Carolina has no state hate crimes law.

September 3, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Lots of ideas for Prez Obama for final criminal justice reform push

The fine folks at The Marshall Project got a lot of other fine folks to share their views here on what Prez Obama might usefully do in the criminal justice reform area as his time in the Oval Office winds down.  The piece is headlined "Obama’s Final 500 Days: People from across the political spectrum suggest criminal justice reforms the president should enact during his remaining time in office." There is a lot of food for thought (for both readers and Prez Obama) in the piece, and here are some of the headings used by the Marshall Project marking some themes:  

Prosecute the Prosecutors

Have Truly Smarter Sentencing

Release More Prisoners

Don’t Forget the Aftermath

Rethink Solitary

Create a Few Commissions

September 3, 2015 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Third Circuit panel explains Scylla and Charybdis of habeas law to prisoner John (Odysseus) Doe

Anyone who loves to read about and think a lot about federal post-conviction sentencing review rules — and really, who doesn't? — will want to make sure to preserve some time today to try to consume all of the extraordinary work done yesterday by a Third Circuit panel in US v. Doe, No. 13-4274 (3d Cir. Sept 2, 2015) (available here). The Doe decision runs 50 pages (with a table of contents longer than a page), but the starting quotes and introduction highlight the basics:

“The whole thing was a very cleverly planned jigsaw puzzle, so arranged that every fresh piece of knowledge that came to light made the solution of the whole more difficult.” — Agatha Christie, Murder on the Orient Express.

“It’s like kind of complicated to me” — John Doe, on the withdrawal of his § 2255 motion.

John Doe, whose identity we protect because he is a Government informant, appeals from the denial of (1) a 28 U.S.C. § 2255 motion filed in 2012 and (2) a request made in 2013 to reopen a § 2255 motion filed in 2008.  Doe was sentenced pursuant to the then-mandatory Sentencing Guidelines as a “career offender” on the basis of two convictions for simple assault in Pennsylvania.  He argued in his 2008 motion that his convictions were not “crimes of violence” within the meaning of the Guidelines and thus he was not a career offender.  Our precedent foreclosed that argument when he made it, but, in light of the Supreme Court case Begay v. United States, 553 U.S. 137 (2008), we reversed ourselves, and Doe’s argument became plausible.  He therefore filed another § 2255 motion, but it too was denied.

This case presents many procedural complexities of first impression within this Circuit. If Doe can manage the Odyssean twists and turns of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), including the Scylla of the second-or-successive bar and the Charybdis of the statute of limitations, he may find a meritorious claim at the end of his journey.  However, we do not definitively reach the merits here and instead remand to let Doe’s case continue its uncertain course.

September 3, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

"The simple truth about why mass incarceration happened"

The title of this post is the headline of this effective recent Vox piece by German Lopez. Here are excerpts:

How could US politicians possibly think it was a good idea to incarcerate millions of Americans starting in the 1980s, creating the system of mass incarceration we have today?

It's a question that gets tossed around a lot nowadays, with varied answers — from claims it was an attempt to control the population to arguments that private prisons created a profit motive for locking up millions of Americans.

But there's a much simpler explanation: The public wanted mass incarceration. It's easy to forget now, but the politics of crime were huge in the 1990s.  According to data from Gallup, never before or after the nineties have so many Americans said that crime is the most important problem facing the country today.

Americans had a very good reason for these concerns.  From the late 1960s to the early 1990s, crime was unusually high.  The country was still coming off what was perceived as a crack cocaine epidemic, in which the drug ran rampant across urban streets and fueled deadly gang violence.  So Americans, by and large, demanded their lawmakers do something — and politicians reacted with mass incarceration and other tough-on-crime policies.

It's very easy in hindsight to consider this an overreaction — now that we know crime began its decades-long decline in the early 1990s, and now that research has shown that mass incarceration only partly contributed to this decline.  But people didn't know that at the time. They didn't know crime was about to begin its long-term drop, and the research on mass incarceration was far from conclusive. Politicians thought crime would get worse, not better.

In fact, there were warnings at the time that things were on the verge of getting worse. One prominent concern in the 1990s — based on what turned out to be very bad social science research — suggested that there was an incoming epidemic of superpredators, violent youth who would rob and kill people....

In this context, it was expected that all politicians — liberal and conservative — take a tough stance on crime.  That's partly why liberals like Hillary Clinton, Joe Biden, and Bernie Sanders supported the 1994 crime law that contributed to mass incarceration.  It's why dueling candidates for governor in the liberal state of New York campaigned on who could be tougher on crime.  And it's why practically every state passed tough-on-crime policies throughout the 1980s and 1990s....

Popular demand for tough-on-crime laws in the past doesn't in any way excuse the devastation lawmakers inflicted on millions of people through mass incarceration and other policies.  But based on voters' concerns in the 1990s, if a politician didn't contribute to the problem back then, he or she may not be prominent enough to run for president today.  That's how America ended up with mass incarceration — and the seemingly contradictory Democratic presidential candidates for 2016.

September 3, 2015 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Wednesday, September 02, 2015

"Share Your Grief But Not Your Anger: Victims and the Expression of Emotion in Criminal Justice"

The title of this post is the title of this notable new paper available via SSRN authored by Susan Bandes.  Here is the abstract:

In the recent capital trials of Dzhokhar Tsarnaev for the Boston Marathon bombings and James Holmes for the Colorado theater shootings, victims’ families were permitted to give testimony after the sentence had been announced.  Since victim impact testimony in capital cases was upheld by the Supreme Court on the ground that it provides important information to the sentencing jury, hearings after sentencing raise the question of what role the statements are meant to serve.

I argue that although victim impact testimony was originally justified as a means of providing information to sentencing juries, it is now regarded as having two additional purposes.  First, it is widely assumed that the statements serve a cathartic or therapeutic role for victims and their families; that they assist in obtaining “closure.”  Second, there is a growing tendency toward viewing the statements as a means of confronting the perpetrator in order to elicit remorse, or at least impress on him the gravity of the harm he has caused.  Each of these three rationales has different implications for the nature, scope and advisability of allowing victim impact statements.

In this chapter I examine what goals the statements are meant to serve, how those goals should affect the rules governing the statements, and whether the goals are practically achievable or normatively desirable.

September 2, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, September 01, 2015

California settles prisoner lawsuit by agreeing to limit use of solitary confinement

As reported in this local AP piece , headlined "California to end unlimited isolation for most gang leaders," a lawsuit concerning California's use of solitary confinement culminated today in a significant settlement. Here are the details:

California agreed Tuesday to end its unlimited isolation of imprisoned gang leaders, restricting a practice that once kept hundreds of inmates in notorious segregation units for a decade or longer.

The state is agreeing to segregate only inmates who commit new crimes behind bars and will no longer lock gang members in soundproofed, windowless cells solely to keep them from directing illegal activities by gang members.  "It will move California more into the mainstream of what other states are doing while still allowing us the ability to deal with people who are presenting problems within our system, but do so in a way where we rely less on the use of segregation," Corrections and Rehabilitation Secretary Jeffrey Beard told The Associated Press.

The conditions triggered intermittent hunger strikes by tens of thousands of inmates throughout the prison system in recent years.  Years-long segregation also drew criticism this summer from President Barack Obama and U.S. Supreme Court Justice Anthony Kennedy.

"I think there is a deepening movement away from solitary confinement in the country and I think this settlement will be a spur to that movement," Jules Lobel, the inmates' lead attorney and president of the Center for Constitutional Rights, said in a telephone interview.

The lawsuit was initially filed in 2009 by two killers serving time in the security housing unit at Pelican Bay.  By 2012, Todd Ashker and Danny Troxell were among 78 prisoners confined in Pelican Bay's isolation unit for more than 20 years, though Troxell has since been moved to another prison. More than 500 had been in the unit for more than 10 years, though recent policy changes reduced that to 62 inmates isolated for a decade or longer as of late July.

The suit contended that isolating inmates in 80-square-foot cells for all but about 90 minutes each day amounts to cruel and unusual punishment.  About half the nearly 3,000 inmates held in such units are in solitary confinement.  Inmates have no physical contact with visitors and are allowed only limited reading materials and communications with the outside world.

The settlement will limit how long inmates can spend in isolation, while creating restrictive custody units for inmates who refuse to participate in rehabilitation programs or keep breaking prison rules....  Lobel said the new units, by giving high-security inmates more personal contact and privileges, should be an example to other states to move away from isolation policies that he said have proven counterproductive in California....

Nichol Gomez, a spokeswoman for the union representing most prison guards, said it was disappointing that "the people that actually have to do the work" weren't involved in the negotiations, so she couldn't immediately comment.

Beard said he will work to ease the unions' previously expressed concerns that guards could face additional danger. He said the settlement expands on recent changes that have reduced the number of segregated inmates statewide from 4,153 in January 2012 to 2,858 currently.

Until recently, gang members could serve unlimited time in isolation.  Under the settlement, they and other inmates can be segregated for up to five years for crimes committed in prison, though gang members can receive another two years in segregation.

September 1, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Lots of notable new sentencing-related content at Crime & Consequences

I make Crime and Consequences a daily read for lots of reasons, and here is just a sample of some new content in a number of recent posts that sentencing fans should be sure to check out:


September 1, 2015 in Recommended reading, Who Sentences? | Permalink | Comments (2)

Previewing the latest (and most important) bipartisan federal statutory sentencing reform effort in Congress

ImagesAs regular readers know, September is the month that a (long-forecast) important new federal sentencing reform bill has become likely to emerge from the US Senate.  This new Daily Signal article, headlined "Bipartisan Group of Senators Set to Announce Deal to Reduce Prison Population," which reports that this bill is going to be unveiled a week from today, provides an account of what we can expect to see in this bill.  Here are excerpts:

Soon after lawmakers return to Washington, D.C., on Sept. 8, a bipartisan group of members on the Senate Judiciary Committee is expected to announce a deal meant to relieve the overcrowded federal prison population.

The bill, which is still being written and near completion — according to Beth Levine, a spokeswoman for Judiciary Committee Chairman Chuck Grassley — would give judges more discretion in sentencing offenders of certain nonviolent drug crimes and let well-behaved inmates earn time off their prison terms.

“They want to announce a deal as soon as they get back, but they just aren’t quite there yet,” says Conn Carroll, the communications director for Sen. Mike Lee, a committee member and leading reform advocate. “Let’s just say it’s first and goal on the one, everyone thinks we’ll score, we just don’t know when,” Carroll continued.

The legislation, the result of months of negotiations, will likely incorporate policies from previously introduced legislation in both houses of Congress.

The judiciary committee’s compromise bill is not expected to include reductions to mandatory minimums that are blamed for mass incarceration. Mandatory minimums require binding prison terms of a particular length and prevent judges from using their discretion to apply punishment. But the legislation is expected to give judges some leeway in sentencing drug offenders....

A new Pew study, using data from the Federal Bureau of Prisons, reveals that there are more than 207,000 inmates in federal prisons, and 95,000 of those inmates are incarcerated for drug-related offenses — up from fewer than 5,000 in 1980.

The jump in the number of inmates has cost a lot of money. From 1980 to 2013, federal prison spending increased 595 percent, from $970 million to more than $6.7 billion. According to the study, prison spending now represents one of every four dollars spent by the U.S. Justice Department. The report says growth of the prison population, and the longer drug sentences, can be pinned on a tough-on-crime mentality that dominated the 1980s.

Reform advocates say these policies — such as laws passed by Congress enacting mandatory minimum sentences of five, 10, or 20 years for drug offenders, and abolishing parole for federal offenders — have outlived their usefulness and need to be revised.

“The question really boils down to, has Sen. Grassley come to recognize mandatory minimums are a policy failure?” says Alison Holcomb, the director of the ACLU’s Campaign for Smart Justice. “Whether the bill is worth all the time and effort of the negotiations depends on a large part to the answer to that question.”

Grassley, as the judiciary committee chair, is the gatekeeper of the talks. Experts such as Holcomb say Grassley is opposed to across-the-board repeal of mandatory minimum sentences. “The real question of this bill is, how far can Grassley go?” says Molly Gill, the government affairs counsel for Families Against Mandatory Minimums, a nonprofit. “There’s a lot of pressure to do something significant. Is Grassley’s definition of significant close to everyone else’s? There becomes a certain point where you ask, is this real reform?”

Though Grassley’s office won’t share the exact details, the bill is expected to address a “safety valve” law that’s supposed to keep people from receiving unfair sentences.

Under the law, a federal drug offender can avoid a mandatory minimum sentence if he passes a five-part “safety valve” test. A convicted felon can be sentenced below a mandatory minimum if he was not a drug leader or “king pin,” he did not use or possess a gun during the offense, the offense is nonviolent, he was truthful with the government, and he has little or no other criminal activity on his record.

Reform advocates argue that even the most minor criminal history, such as being convicted for possessing a small amount of marijuana as a juvenile, can make an offender ineligible for the safety valve exception. The Senate Judiciary Committee bill may make the criminal record aspect of the safety valve more forgiving. It may also create a new loophole to get around mandatory minimums.

In addition, the legislation will include elements of a separate bill, the Corrections Act, authored by two senators of the judiciary committee: John Cornyn, R-Texas, and Sheldon Whitehouse, D-R.I.

That bill would allow certain well-behaved prisoners to earn time off their sentences by participating in recidivism reduction programs such as drug counseling and vocational training. The judiciary committee bill won’t be as comprehensive as the House’s SAFE Justice Act, sponsored by Reps. Jim Sensenbrenner, R-Wis., and Bobby Scott, D-Va., which would narrow the range of offenders that mandatory minimums apply to. Some members, like Grassley, think that reform plan is too far-reaching.

“Although there is clearly bipartisan support for a number of these proposals, [this] is a difficult issue,” says John Malcolm, the director of The Heritage Foundation’s Meese Center for Legal and Judicial Studies. “Some believe our current sentencing regime is unfair and the pendulum has swung too far in terms of imposing harsh sentences,” Malcolm continued. “Others believe increased incarceration and harsh sentences have taken some very dangerous people off of the streets. I remain cautiously optimistic there is some ‘sweet spot’ where both sides can compromise.”

Whatever the final product looks like, all sides are optimistic that Congress will give Obama a criminal justice reform bill to sign this year — because too many people are waiting. “The American criminal justice system has gotten has so far out of whack, with far too many people behind bars for too high a price,” Holcomb said. “The cold hard fact that people across the aisle can agree on is that America is better than this.”

I am pleased that some key details of the sentencing reform bill most likely to get to Prez Obama's desk are emerging, and I am not surprised that Senator Grassley is more interested in pursuing expanded exceptions to current federal mandatory minimums rather than across the board cuts to any current mandatory minimum. At the same time, I am concerned (but again not suprised) that advocates of federal sentencing reform are worried that this latest bill which has Senator Grassley's blessing is not going to be as far-reaching or impactful as other bills that have been making the rounds.

As a general matter, I favor a federal sentencing world without any crude and strict mandatory minimums terms for any non-violent crimes. But, especially now that we have had two-plus years of talk about statutory sentencing reform and nothing at all that has made it through Congress, I am hopeful all reform advocates will get on-board with whatever comes out of the Senate later this month. Especially with growing talk about violent crime increases in some cities and with sound-bite presidential campaigns now dominating the broader political conversation, I think the window for any meaningful federal sentencing reforms emerging from Congress is already starting to close. If visions of the "best" or even the "really good" prompt criticisms of any bill that has a real chance of passage, we could well end up with no bill making it through Congress at all.

Some prior related posts:

September 1, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

"Skin Color and the Criminal Justice System: Beyond Black‐White Disparities in Sentencing"

The title of this post is the title of this intriguing new article discussing empirical research on sentencing outcomes in Georgia authored by Traci Burch. Here is the abstract:

This article analyzes sentencing outcomes for black and white men in Georgia. The analysis uses sentencing data collected by the Georgia Department of Corrections (GDC). Among first‐time offenders, both the race‐only models and race and skin color models estimate that, on average, blacks receive sentences that are 4.25 percent higher than those of whites even after controlling for legally‐relevant factors such as the type of crime.

However, the skin color model also shows us that this figure hides important intraracial differences in sentence length: while medium‐ and dark‐skinned blacks receive sentences that are about 4.8 percent higher than those of whites, lighter‐skinned blacks receive sentences that are not statistically significantly different from those of whites.  After controlling for socioeconomic status in the race‐only and race and skin color models the remaining difference between whites and dark‐ and medium‐skinned blacks increases slightly, to 5.5 percent.  These findings are discussed with respect to the implications for public policy and for racial hierarchy in the United States.

September 1, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

"Charging on the Margin"

The title of this post is the title of this notable new paper discussing prosecutorial practices and collteral consequences autored by Paul Crane now available via SSRN. Here is the abstract:

The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions.  In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses — penalties such as being required to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation.  While there is a wealth of scholarship studying the effect this development has had on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives.  This Article starts to remedy that gap by exploring the influence collateral consequences exert on initial charging decisions in low-level prosecutions.

Critically, the ability to impose certain collateral consequences through a misdemeanor conviction unlocks an array of additional charging options for prosecutors.  As a result, prosecutors are now more likely to engage in a practice I term “strategic undercharging.” A prosecutor engages in strategic undercharging when she charges a lesser offense than she otherwise could, but does so for reasons that advance her own aims — and not as an act of prosecutorial grace or leniency.  In other words, prosecutors can sometimes gain more by charging less.  By explaining why (and when) prosecutors are likely to engage in strategic undercharging, this Article complicates the conventional wisdom that prosecutors reflexively file the most severe charges available.

This Article also proposes that collateral consequences be factored into the determination of what procedural safeguards are afforded a criminal defendant.  Under existing law, collateral consequences are generally deemed irrelevant to that inquiry; the degree of procedural protection provided in a given case turns exclusively on the threatened term of incarceration.  Changing this approach could have several salutary effects on the administration of collateral consequences.  At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.

September 1, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, August 31, 2015

SCOTUS lets convicted former Virginia Gov to remain free pending cert decision

As reported in this local article, headlined "U.S. Supreme Court lets McDonnell stay free for now," a high-profile white-collar federal defendant has gotten a kind of prison sentence reprieve while continuing to pursue his appeals. Here are the basics:

In a surprise to many observers Monday, the U.S. Supreme Court allowed former Gov. Bob McDonnell to remain free while the justices decide whether to take up his appeal....

Should the justices not take the case, the stay ordered this afternoon will end automatically. If the court takes the case the stay will continue, the court ordered.

"Wow," said Randall Eliason, former chief of the Public Corruption/Government Fraud Section at the U.S. Attorney's Office in Washington. "It suggests there is some level of interest at the Supreme Court in reviewing the case, even though not a single appellate judge in the 4th Circuit agreed with his arguments.”

Henry Asbill, one of McDonnell’s lawyers, said “We’re very grateful for this order and we’re gratified that the justices recognize that this case raises substantial and important legal questions and we look forward to a full merits briefing."

McDonnell’s lawyers made the request to Chief Justice John G. Roberts Jr., who referred the matter to the full court. McDonnell needed a majority vote for the stay - it is unclear if the full court voted - but only needs four votes for the court to agree to take up his appeal.

"I am surprised," said Carl Tobias, a professor at the University of Richmond School of law. "There's no explanation" provided by the justices, "so it's really hard to know what the vote might have been. But I think it may be a hopeful sign for McDonnell," he said.

"It certainly buys some time," perhaps four months or more while the court considers taking the case, he said. "I think it shows there is some interest on the court in this case," but not necessarily the ultimate outcome. "There's still a lot of steps to go," he said.

The government opposed continued bond for McDonnell and argued that he should begin serving his two-year term. A spokeswoman for the U.S. attorney had no comment on the order. McDonnell and his wife, Maureen, were convicted of corruption charges stemming from $177,000 in gifts and loans from Jonnie R. Williams Sr., the former CEO of Star Scientific, in exchange for helping with the promotion of a product.

I am a bit disinclined to assert that the former Gov is getting the benefit of celebrity justice, especially because there is good reason to believe McDonnell would have possibly served the majority of his two-year prison sentence before SCOTUS would be able to decide the case on the merits if it ultimately chooses to take up his appeal.  Still, many white-collar defendants (despite presumably not being a risk to public safet) do not often get the opportunity to remain free on bail pending an appeal of right to a circuit court, let alone a cert appeal to SCOTUS. 

Prior related posts:

August 31, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (0)