Monday, April 23, 2018

SCOTUS grants cert on yet another set of ACCA cases, this time to explore when burglary qualifies as "burglary"

Though I am always excited when the Supreme Court takes up sentencing issues, I must admit growing somewhat annoyed that issues related to the application of the Armed Career Criminal Act continued to be the focal point of so much SCOTUS activity. That patterns continues today via this new SCOTUS order list in which cert was granted in these two cases (which were consolidated for one hour of argument):

United States v. Stitt, 17-765 (from the Sixth Circuit)

Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

United States v. Sims, 17-766 (from the Eighth Circuit)

Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

Because the government was seeking cert on these cases after losing in big Circuit rulings and because there is a split in the circuits, I am not at all surprised by these grants. But I remain troubled that so many other issues that are so very consequential to so many more cases — e.g., the functioning of reasonableness review or the proper application of Graham and Miller — have been unable to get the Justices' attention while nearly a dozen ACCA cases have been taken up by SCOUS in the last decade.

April 23, 2018 in Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Sunday, April 22, 2018

"Addicted to Incarceration: A Federal Judge Reveals Shocking Truths About Federal Sentencing and Fleeting Hopes for Reform"

The title of this post is the title of this notable new article authored by Mark W. Bennett just posted to SSRN.  Here is its abstract:

A federal district judge who has sentenced more than 4,000 offenders in multiple districts shares his experience and criticisms of current federal sentencing.  The article begins with a history of federal sentencing, then focuses on problems related to mandatory minimum sentencing and application of 21 U.S.C. § 851 prior conviction enhancements in federal drug cases. The next section exposes the myth of empirical federal sentencing guidelines.  The final section offers eight specific suggestions for federal sentencing reform.

April 22, 2018 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

Saturday, April 21, 2018

India government moving forward with the death penalty for child rape

This new Bloomberg piece, headlined "India Approves Death Penalty for Child Rapists After Outcry," provides a useful reminder that the United States is not the only nation inclined to respond with punitive new laws in the wake of a high-profile horrible crime.  Here are the basics:

Prime Minister Narendra Modi’s cabinet cleared an ordinance that imposes the death penalty on convicted child rapists.

The amendment to the nation’s criminal law, which allows the death sentence in cases of rape of girls under age 12, was approved on Saturday, an official told reporters in New Delhi after the cabinet meeting. Once the president signs the ordinance, it will become a law.

The government acted after the recent failure of India’s ruling party to act on the growing outrage over two brutal rapes risked eroding Modi’s support ahead of state and national elections. United Nations Secretary General Antonio Guterres had urged authorities to act, according to the Times of India newspaper.

The cabinet also raised the minimum sentence in cases of rape of a woman to 10 years from the current seven, and in the rape of a girl under 16 years of age to 20 years from 10. In a crime that shocked India, an 8-year-old Muslim girl in Jammu and Kashmir was kidnapped in January, drugged, held for several days in Kathua, was raped multiple times then murdered, local police said. In Uttar Pradesh, a state lawmaker from Modi’s Bharatiya Janata Party is accused in a June 2017 rape case in Unnao.

Of course, this particular punitive reaction to an awful child rape is no longer possible in the US: the Supreme Court ruled a decade ago in Kennedy v. Louisiana that the use of the death penalty as punishment for child rape is unconstitutionally severe and thus barred by the Eighth Amendment.

Interestingly, just the other day I was doing a little research on the death penalty for non-capital crimes and I came across one especially notable reaction to the Kennedy ruling.  Here is the quote, and readers are welcome to guess who said it before clicking through to the link:

"I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes," [this prominent federal politician] said at a news conference.  "I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution." 

April 21, 2018 in Death Penalty Reforms, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

"Most people will flip if the Government lets them out of trouble, even if.... ....it means lying or making up stories"

The quote in the title of this post is a sentence that could (and likely has been) articulated in some variation by many defendants and defense lawyers.  And it reflects one reason (of many) that mandatory minimum sentences and other severe sentencing can be so worrisome: by threatening mandatory and severe sentences, the government can place even more pressure on people to flip through "lying or making up stories" to try to get "out of trouble."

The particular articulation of these concerns in this post title comes from a pair of tweets authored by President Donald J. Trump on the morning of April 21, 2018.  I am not at all optimistic that President Trump will carry his (self-serving) concerns about persons "lying or making up stories" over to his policy positions on federal criminal justice reform or to his consideration of clemency petitions.  But I am still hopeful that tweets like these may lead some of President Trump's most ardent supporters to become ever more skeptical of all forms of government, including the tools of law enforcement that are so regularly used (and sometimes abused) in the federal criminal justice system. 

And, in related news reported by the Washington Post, it appears AG Jeff Sessions has suggested that he would not stay on as Attorney Genera if his Deputy AG were let go by Prez Trump:

Attorney General Jeff Sessions recently told the White House he might have to leave his job if President Trump fired his deputy, Rod J. Rosenstein, who oversees the investigation into Russian interference in the 2016 election, according to people familiar with the exchange.

Sessions made his position known in a phone call to White House counsel Donald McGahn last weekend, as Trump’s fury at Rosenstein peaked after the deputy attorney general approved the FBI’s raid April 9 on the president’s personal attorney Michael Cohen.

April 21, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Friday, April 20, 2018

Interesting new survey on crime and punishments from Vera Institute with a focus on rural Americans

This new Vera Institute blog posting by Jasmine Heiss and Jack Norton reports on an interesting new poll. The posting it titled "United Toward Justice: Urban and Rural Communities Share Concerns about Incarceration, Fairness of the Justice System, and Public Spending Priorities," and here are excerpts (with links from the original):

New polling conducted for Vera by Greenberg Quinlan Rosner Research (GQR) shows that a 67 percent majority overall agree that “building more jails and prisons to keep more people in jail does not reduce crime,” including 61 percent of rural Americans.  What’s more, neither people in rural nor urban areas across America consider crime a major problem: only 27 percent of people living in rural areas cite it as a major problem in their communities, as compared to 26 percent overall.  And people in communities of all sizes appear disinterested in spending limited taxpayer resources on prisons and jails.  Building prisons and jails ranks a distant last (35 percent) as a strategy to improve quality of life — trailing behind measures such as providing more jobs and job training (91 percent); investing more in schools and youth programs (88 percent); providing more community-based mental health treatment (86 percent) and drug and alcohol treatment (83 percent); and emphasizing community-based violence reduction programs (78 percent). (See GQR’s memo for complete details.)

Vera’s In Our Backyards research adds a human dimension to these results and anchors them in the lived experiences of communities.  In Pueblo County in Southern Colorado, for example, voters have twice rejected jail expansion.  There are competing narratives about the beliefs underlying the rejection of jail expansion.  The criminal justice stakeholders who were proponents of expansion saw the “no” vote as a reflection of most voters’ general apathy about conditions endured by the people incarcerated and working in the county jail.  But many citizens who voted against expansion saw their votes as a choice about the conditions of the community writ large. As one person who voted against expansion put it: “They need a new treatment center, not a jail. This is a poor place; there’s a drug problem like all these poor places across the country. We don’t need a new jail.”...

Residents not only disapprove of investing in newer or bigger jails and prisons — they’re also concerned about the rate at which their friends and neighbors are being locked up.  A 40 percent plurality believes that the level of incarceration in their communities is too high, as opposed to just nine percent of people who believe that it is too low.  Moreover, 66 percent of people confirmed that they would be concerned if they learned that their community had a higher rate of incarceration than similar communities in their state; 55 percent of whom would be very concerned.  In rural counties, those numbers dip only slightly to a 60 percent majority of residents who would be concerned about outsize rates of incarceration; 45 percent of whom would be very concerned.             

Misgivings about the justice system’s ability to deliver on the promise of equal justice also became clear: 55 percent of respondents agreed that the nation’s justice system discriminates against poor people.  This was affirmed by 76 percent of people who described themselves as “lower class,” and 84 percent of black Americans.

Furthermore, when asked specifically about their perceptions of judges — among the most visible actors in the local justice system — a 47 percent plurality disagreed with the statement “Local judges are fair to all people, regardless of background,” including 63 percent of black Americans.  These perceptions might be understood in tandem with the overrepresentation of black and poor Americans in the nation’s jails: despite a narrowing racial gap, black people are still 3.6 times more likely to be jailed than white people. What’s more, an estimated 80 percent of people in jail are indigent....

As the movement to reverse mass incarceration and elect reform-minded candidates continues to gain momentum, it’s clear that the same energy that has propelled America’s biggest cities toward reform is infusing small-town America.  And while the nation’s smallest communities are often overlooked, they are poised to be a force for change.

April 20, 2018 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Thursday, April 19, 2018

Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review?

The question in the title of this post is prompted in part by my work, recently and in prior years, on amicus briefs in which I have noted to the US Supreme Court that many judges and many commentators have suggested that the appellate review of sentences — and all of federal sentencing under advisory Guidelines — would benefit significantly from the Court's further guidance on the contours of reasonableness review.   

A little more that a decade ago, the jurisprudential troika of Rita, Gall and Kimbrough provided an initial SCOTUS accounting of reasonableness review.  But it is now pretty easy to provide a string cite of commentary noting the mess that reasonableness review has become in the circuits.  See, e.g.,  Carrie Leonetti, De Facto Mandatory: A Quantitative Assessment Of Reasonableness Review After Booker, 66 DePaul L. Rev. 51 (2016) (lamenting disparate circuit approaches to reasonableness review creating a “patchwork of guideline sentencing in which defendants’ sentences are dictated more by the happenstance of geography than by the Supreme Court’s jurisprudence”); Note, More Than a Formality: The Case for Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951 (2014) (discussing a “number of notable circuit splits” concerning reasonableness review); D. Michael Fisher, Still in Balance? Federal District Court Discretion and Appellate Review Six Years After Booker, 49 Duq. L. Rev. 641, 649-61 (2011) (noting that “the courts of appeals have differed over how to apply the [reasonableness] standard” and “have split on several important legal questions”).

My decision to gripe on this front today is also prompted by this pending cert petition in Ford-Bey v. US recently brought to my attention.  Here is the question presented to the Supreme Court in this petition:

In Rita v. United States, 551 U.S. 338 (2007), the Court held that an appellate court could presume that a procedurally reasonable within-Guidelines sentence is also substantively reasonable. But the Court stressed that the presumption was rebuttable, reflecting only that a sentence is more likely to be substantively reasonable where the district judge and the Sentencing Commission agree.

A decade later, the majority of Circuits have never found Rita’s presumption rebutted. In that time, fewer than ten defendants nationwide have succeeded in rebutting Rita’s presumption.  Here, the Fourth Circuit issued a routine per curiam affirmance, despite petitioner’s extraordinary post-sentencing rehabilitation — and despite the Commission’s 2012 decision to withdraw all guidance on post-sentencing rehabilitation.

Has Rita’s non-binding presumption of reasonableness become effectively binding?

April 19, 2018 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Lots of notable reporting and commentary as federal prison reform tries to move forward

As reported here last week, there was talk of a federal prison reform bill moving forward in the House of Representatives this week.  This article from The Hill, headlined "Prison reforms groups battle over strategy," highlights that folks on the left may be gumming up the works:

Progressive groups fighting for criminal justice reform are divided over legislation that would allow prisoners to finish their sentences in a halfway house, home confinement or under community supervision if they complete education, job training, drug treatment and other programs while behind bars.  The Leadership Conference for Civil Rights, American Civil Liberties Union and NAACP are among the groups saying that legislation that fails to reduce mandatory minimum sentences isn’t worth their support....

But #cut50, a criminal justice reform advocacy group led by Van Jones, the CNN host and former adviser to President Obama, sees the bill sponsored by Reps. Doug Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.) that’s supported by the White House as an opportunity for positive change, even if it’s incremental. “It’s a bill that’s moving that we decided as a group we’ll hop in and try to make stronger because I think this is going to move with or without us,” said Jessica Sloan Jackson, the national director and co-founder of #cut50.

Instead of shooting it down, the group said it’s lobbying to make the Prison Reform and Redemption Act stronger.  Sloan Jackson acknowledged #cut50 would rather have the Collins–Jeffries bill include language that reduces mandatory minimum sentences, but recognized the criminal justice reform movement has shifted under Trump. She said #cut50 would like to at least win some changes to help people in prison.  “At this point in the process, I think it’s stupid not to even engage in conversations with folks on the right and in the White House just because you aren’t getting everything you want,” she said.

To supporters of broader reforms, however, the bill is a significant step down from legislation that nearly won approval in the last Congress.  That bill, sponsored by Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.), has been reintroduced and would eliminate certain mandatory minimum sentences for nonviolent drug offenses. It would also give judges more discretion in sentencing.

The Collins–Jeffries bill authorizes $50 million to be appropriated each year from 2018 to 2022 for the Bureau of Prisons to offer education, work training and other programming, but opponents say that’s not enough.  It also lists 48 different categories of crimes that make prisoners ineligible to earn time in pre-release custody for taking these programs, a provision groups backing broader reforms say excludes too many prisoners who are at a high risk of reoffending and need prison programming the most.  “By cutting out or limiting so many people to get incentives to programming you are missing the point,” said Kevin Ring, the president of Families Against Mandatory Minimums.

In a letter to members of the House Judiciary Committee on Friday, dozens of groups opposed to the bill said it would do little good if it does not reduce mandatory minimum sentences.  “Only front-end reforms have the power to significantly stem the tide of incarceration, reduce the exorbitant cost of the prison system, and give redress to those inside who are serving sentences that are disproportionate to the severity of the offense,” the groups wrote.

The Collins–Jeffries bill has won support from groups on the right that have backed minimum sentencing reforms. “We’re big advocates for commonsense sentencing reform as well and we hope that happens, but we want to get the ball rolling and we think prison reform is a great place to start,” said Mark Holden, Koch Industries’s general counsel and senior vice president....

Advocates say Jeffries and Collins have been negotiating possible changes to their bill, and a markup that had been expected this week was pushed back to provide time for their work.  In a joint statement to The Hill, Jeffries and Collins said their bill will reunite families and help thousands of Americans get back on their feet.

Similar report on these debates and developments are in this Politico article, headlined "Kushner’s prison-reform push hits bipartisan resistance: The son-in-law of President Donald Trump is pressing for a criminal justice bill that’s narrower than a bipartisan one that has stalled in Congress."  And Van Jones has this new CNN commentary that highlights his work and his support for a prison-reform-only bill under the headlined "Prison reform is possible even in the Trump era."

As long-time readers likely know, I am a strong believer that the best should not be the enemy of the good.  In this setting, I am especially eager to urge federal criminal justice reform advocates to secure ASAP any and whatever improvements they can.  I still can recall, though it is now nearly five years ago, when commentators were asserting that "momentum for sentencing reform could be unstoppable."  But from 2013 through 2016, despite a President, Attorneys General and many members of both parties advocating all sorts of federal sentencing reforms, not a single statutory change could make it through Congress to the desk of the President.   Meanwhile, hundreds of thousands of defendants have been (often over) sentenced to federal prison since 2013.  And while there, as Craig DeRoche highlights in a letter in the New York Times, these prisoners are stuck within a prison system that "offers drastically less opportunity for prisoners to transition to community corrections before the end of their sentence compared with almost all states."

Advocates are right to complain that a compromise bill with only prison reform is insufficient, but the fact that broader bills have been pushed and stalled for half-a-decade leads me to be more than ready to settle for half a loaf.  I have grow so tired of the reform talk that produces no result, though I am sure I am not as exhausted and frustrated as hundreds of thousands of federal prisoners, defendants and their families who have been clinging on to still empty promises of reform potential for year after year after year after year.  Van Jones has a couple of lines in his commentary that capture well my feelings here, as well as my desire to preserve some hope for this process:

My big heartache -- on this topic and so many others -- is how much common ground there is when you get people talking -- and yet how little we actually do about it.  Taking a small but meaningful step together now could allow us to take more steps together later.

April 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

Another Booker, this one in Florida, prevails on a notable Sixth Amendment Blakely claim

I came across a Florida intermediate appellate court opinion today finding Sixth Amendment problems in a Florida statute, but I likely would not have blogged about were it not for the surname of the defendant: Booker!  The name Booker (Freddie J.) will be forever connected to the transformation of the federal sentencing system.  Another Booker (Reginald Lee) seems unlikely to have quite the same impact on Florida sentencing, but his case is still interesting for hard-core Apprendi/Blakely fans.  Here are excerpts from Booker v. Florida, No. 1D15-3558 (Fla. 1st Dist. April 18, 2018)(available here):

The Florida Legislature, faced with budgetary challenges in 2009, sought to reduce the burden of prison expense on the Department of Corrections by mandating that specified, nonviolent offenders, who score under twenty-two points on their criminal scoresheet, be sentenced to nonstate sanctions — thereby shifting incarceration of these offenders to county jails for a maximum of up to one year.  [But it also provided] "if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility."  [This provision], which was used to enhance Booker’s sentence to a state prison sanction, is the focus of the Sixth Amendment claim at issue....

Given the momentous role of the jury in our country’s legal history, and the clarity of the stated principle in Apprendi and Blakely that judicial fact-finding is no substitute for jury factfinding if used for sentencing beyond a relevant statutory maximum, we conclude that the last sentence of subsection (10) violates this principle as applied to Booker.  It empowered precisely what Apprendi and Blakely condemn: giving a trial judge the power to make factual findings independent of the jury (here, about future public dangerousness) that are used to increase an offender’s sentence beyond the maximum allowable by the “facts reflected in the jury verdict alone.” Blakely, 542 U.S. at 303.  As applied to Booker, the result is that, rather than be subject to a maximum of up to a year in a county jail, he is sent to state prison for four years — based solely on factual findings as to his potential for future dangerousness upon which only a judge, not a jury, has passed....

Put simply, section 775.082(10)’s enactment shifted the sentencing paradigm markedly, and in the process eliminated the ability of a jury verdict alone to impose a state prison sanction.  Protection of the jury trial right does not hamstring the Legislature’s ability to achieve its policy goals, however.  For example, if section 775.082(10) required a jury — rather than a judge — to make factual findings about an offender’s potential for future dangerousness, the check on personal liberty that the Sixth Amendment’s right to a jury trial provides would be retained.  A simple legislative fix might be to amend subsection (10) to say: “. . . if the court a jury makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.”  Courts, except by rewriting a clearly-worded statute, cannot achieve this policy result.

Notably, this opinion concludes by noting conflicts with other Florida appellate rulings and then certifying the issue as of "great public importance" for the Florida Supreme Court. So maybe we have not heard the last of the name Booker in Florida.

April 19, 2018 in Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

NY Gov Cuomo restores voting rights to parolees via executive order

Restoring_Voting_Rights_to_NYers_on_ParoleAs reported in this local article, New York's "Gov. Cuomo on Wednesday signed an executive order granting parolees the right to vote in New York." Here is more:

Cuomo announced the signing at the annual convention of Rev. Al Sharpton's National Action Network. He decried the state's current law blocking those who have been released from prison but are still on parole from voting, saying it didn't square with the goals of parole and re-entry.  "At the same time, we're saying we want you a part of society, we want you to get back into the community," he said.

Cuomo said he had proposed legislation to grant voting rights to parolees, but it was shot down by the State Senate — leading him to argue the state needs a new Legislature. But Cuomo said he wouldn't wait that long.  "I'm unwilling to take no for an answer," he said.  "I'm going to make it law by executive order and I announce that here today."

Cuomo signed the executive order later Wednesday afternoon.  There are about 35,000 New Yorkers on parole who could not vote, the governor’s office said.  The executive order will restore the right to vote upon release from incarceration, his office said, citing a disproportionate impact of disenfranchisement on communities of color and links between civic engagement and reduced recidivism.

Fourteen other states and the District of Columbia restore voting rights upon release....

Cuomo’s office pointed to other criminal justice reforms he’s enacted, including raising the age of criminal responsibility and naming the attorney general as a special prosecutor for police-related deaths, arguing he’s long cared about the issue.

Republicans, meanwhile, ripped the order. A "dumbfounded" Senate Majority Leader John Flanagan (R-Suffolk County) blasted it as “illegal and horrific public policy.”... Flanagan said that those on parole, including murderers and rapists, are still serving out their sentences and should not be entitled to their voting rights. He said he would not be surprised if a lawsuit is filed seeking to block the order and accused Cuomo of trying to "expand the universe of people who are eligible to vote."

Dutchess County Executive Marcus Molinaro, the front-runner for the GOP gubernatorial nomination, ... accused Cuomo of being a dictator. "Just months before an election, with the stroke of his pen, Andrew Cuomo, plans to restore the voting rights for cop killer Herman Bell and Palm Sunday killer Chris Thomas and calls it 'justice',” he said. “But if the dictator of a third world nation threw open it's prison doors and granted voting rights to the criminals right before a reelection, we all would be appalled.”...

The New York Civil Liberties Union praised the executive order, but also said Albany should push forward with legislation on same-day voter registration and early voting.

Gov. Cuomo's office issued this press release yesterday with this link to his executive order.  The press releases stressed additional points in support of Gov. Cuomo's decision:

Parole voting restrictions have a disproportionate impact on New Yorkers of color, with African Americans and Hispanic New Yorkers comprising 71 percent of the population so disenfranchised. Civic engagement is linked to reduced recidivism and this action will promote access to the democratic process and improve public safety for all New Yorkers. The executive order is available here. "I am issuing an executive order giving parolees the right to vote. It is unconscionable to deny voting rights to New Yorkers who have paid their debt and have re-entered society," Governor Cuomo said. "This reform will reduce disenfranchisement and will help restore justice and fairness to our democratic process. Withholding or delaying voting rights diminishes our democracy."

This executive action will reverse New York's current disenfranchisement of individuals released from prison who are under post-release community supervision. New York joins fourteen other states and the District of Columbia that restore the right to vote upon release from incarceration. There are roughly 35,000 individuals currently on parole in New York who cannot vote. These individuals are participants in society at large, despite the limitations placed on them by parole conditions. They work, pay taxes, and support their families, and they should be permitted to express their opinions about the choices facing their communities through their votes, just as all citizens do.

Additionally, the current law keeping people on parole supervision from voting is internally inconsistent with New York's approach to voting for people serving sentences of probation. People on probation never lose the right to vote, but many county election officials are unclear about the distinction between those on parole and those on probation, often resulting in illegal disenfranchisement. A 2006 Brennan Center study reported that one-third of all New York counties incorrectly barred people on probation from registering to vote, while another third of all counties illegally made individuals show proof of their voter eligibility status.

April 19, 2018 in Clemency and Pardons, Collateral consequences, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

Ohio Supreme Court unanimously rejects Sixth Amendment challenge to state's capital sentencing procedures

A couple of states have had their death penalty systems chewed up by the "post-Hurst hydra," the term I have used to describe the aftermath litigation in various courts in various states as judges apply the Supreme Court Sixth Amendment ruling in Hurst v. Florida. But yesterday in Ohio v. Mason, 2018-Ohio-1462 (Ohio April 18, 2018) (available here), the Ohio Supreme Court explained why Ohio's capital sentencing procedures are constitutionally sound. Here is how the opinion starts and some key passages:

At issue in this case is whether Ohio’s death-penalty scheme violates the right to a trial by jury as guaranteed by the Sixth Amendment to the United States Constitution. The Marion County Court of Common Pleas found that it does, but the Third District Court of Appeals reversed the trial court’s judgment. Because the Ohio scheme satisfies the Sixth Amendment, we affirm....

When an Ohio capital defendant elects to be tried by jury, the jury decides whether the offender is guilty beyond a reasonable doubt of aggravated murder and — unlike the juries in Ring and Hurst — the aggravating-circumstance specifications for which the offender was indicted. R.C. 2929.03(B).  Then the jury — again unlike in Ring and Hurst — must “unanimously find[], by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors.”  R.C. 2929.03(D)(2).  An Ohio jury recommends a death sentence only after it makes this finding. Id.  And without that recommendation by the jury, the trial court may not impose the death sentence.

Ohio law requires the critical jury findings that were not required by the laws at issue in Ring and HurstSee R.C. 2929.03(C)(2). Ohio’s death-penalty scheme, therefore, does not violate the Sixth Amendment.  Mason’s various arguments to the contrary misapprehend both what the Sixth Amendment requires and what it prohibits....

While we uphold our conclusion in Belton that weighing is not a fact-finding process subject to the Sixth Amendment, we further conclude that even if the weighing process were to involve fact-finding under the Sixth Amendment, Ohio adequately affords the right to trial by jury during the penalty phase.  Mason contends that it does not, because the process permits a jury only to recommend a death sentence.  See R.C. 2929.03(D)(2).  Here, he emphasizes the statement in Hurst that “[a] jury’s mere recommendation is not enough.” Hurst, ___ U.S. at ___, 136 S.Ct. at 619, 193 L.Ed.2d 504.  But he fails to appreciate the material difference between the process by which an Ohio jury reaches its death recommendation and the Florida process at issue in Hurst.

April 19, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, April 18, 2018

"Why Public Defenders Matter More Than Ever in a Time of Reform"

The title of this post is the title of this interesting new commentary authored by John Pfaff for In Justice Today.  The extended piece is not readily summarized, so go read the whole thing.  Here are its closing paragraphs:

As criminal justice reform becomes more politically tenable, however, there is room for public defender offices to take on a lobbying role as well. They are well-positioned to tell legislators the stories about the costs of excessive and counterproductive harshness, to help put a human face on the costs of punitiveness — and, as lawyers, to suggest how to change specific statutes and rules to minimize those harms. But this too requires funding.

It’s worth pointing out that the proposals here would only work in counties or states with centralized public defender offices, as opposed to those that contract indigent defense to otherwise private lawyers.  But that could just mean that fulfilling Gideon’s more-meaningful promise also means pushing jurisdictions that don’t have public defender offices to adopt them.

Historically, public defenders have played primarily procedural roles  —  profoundly important, constitutional roles to be sure, and ones that should be far better funded than they are, even if you ignore all the arguments I’ve made here.  But mass incarceration and mass punishment are not really the products of procedural failings at the trial stage.  They are far more the result of discretionary choices by police and prosecutors, as well as judges and legislators.  Yet in this reformist moment, as voters demand smarter policies from still-opaque prosecutor offices, and as legislators seem more open to less-punitive approaches to social problems, public defenders are well positioned to play a critical role — which makes the role of Gideon all the more important.

April 18, 2018 in Who Sentences? | Permalink | Comments (4)

SCOTUS examining reach of restitution awards under MVRA in Lagos v. United States 

A somewhat non-traditional sentencing issue is the subject of Supreme Court oral argument this morning.  SCOTUSblog has this argument preview authored by Cortney Lollar which started and ends this way:

Next week, the Supreme Court has another opportunity to consider the scope of criminal restitution. Lagos v. United States raises the question of whether private investigation costs and a victim’s attorney’s fees are considered compensable losses under 18 U.S.C. §3663A, the Mandatory Victim Restitution Act....

In recent years, both Congress and the Supreme Court have taken an increasingly expansive approach toward criminal restitution.  Although the MVRA’s language is undoubtedly distinct from that in other restitution statutes, the court may yet again take this opportunity to interpret the language capaciously, requiring a defendant to reimburse increasingly attenuated costs through restitution.

April 18, 2018 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

How many federal prisoners may have Dimaya claims and how many procedural challenges will they face raising them?

The big Supreme Court vagueness ruling in Sessions v. Dimaya, No. 15-1498 (S. Ct. April 17, 2018) (available here), is properly being discussed as a significant immigration ruling: the Justice were considering (and struck down as vague) how Congress defined an offense of violence in 18 U.S.C. § 16(b) in a case involving a alien subject to deportation for committing a certain kind of crime.

But, critically, the now-unconstitutional definition of a "crime of violence" in § 16(b) is referenced throughout the federal criminal code within various criminal offenses and sentence enhancements.  And, notably, definitional language identical to § 16(b) appears in 18 U.S.C. § 924(c)(3)(B), which is part of a statute that adds significant amounts of prison time for any possession or use of a gun in connection with a crime of violence.  In other words, as the title of this post suggests, there are certainly some number of persons serving federal prison time based on a definition of a  "crime of violence" deemed unconstitutionally vague in Dimaya.

But, as my post title suggests, it is hard to know how many federal prisoners have viable Dimaya claims, while it is easy to know that all prisoners will face an array of possible procedural headaches when trying now to raise Dimaya claims.  Helpfully, Leah Litman thoroughly covers, in this lengthy new Harvard Law Review blog posting, the array of procedural hurdles that Dimaya defendants are likely to face.  Here is how her extended piece starts and ends:

The Supreme Court decided Sessions v. Dimaya and struck down the federal definition of “crime of violence” as unconstitutionally vague. The statute, section 16(b) (along with its very analogous cousin, section 924(c)), has meaningfully contributed to mass incarceration, racial disparities in sentencing, and excessive sentencing at the federal level. Dimaya recognized that section 16(b) did so in part through sprawling, amorphous phrasing that could be interpreted and applied in capricious and largely unbounded ways to expand the category of “crime of violence.”  The impact of the Dimaya decision is potentially enormous, both for deportations (the case before the Court) and for criminal sentences....

Whether Dimaya rights wrongful convictions will depend on how courts interpret a slew of procedural restrictions on federal resentencing and federal post-conviction review....

Dimaya spoke of “lesson[s] so hard learned” from Johnson and the ACCA debacle that Johnson corrected.  But another lesson that was hard learned from Johnson is that Johnson, or in this case Dimaya, will just be the beginning.  Whether those decisions will ultimately benefit the individuals who are currently wrongly incarcerated will depend on what comes next, and specifically on how courts interpret the many draconian restrictions on post-conviction review.

April 18, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

Tuesday, April 17, 2018

"Will the Supreme Court Rein in Civil Forfeiture?"

The title of this post is the title of this new piece by Matt Ford at The Atlantic, and the question it poses strikes me as particularly timely in light of the notable discussion of civil sanctions by Justice Gorsuch in a concurring opinion this morning in Dimaya.  Here is part of the piece:

The state of Indiana really wants to take Tyson Timbs’s Land Rover, as punishment for dealing just a few hundred dollars’ worth of drugs. He’s now asking the U.S. Supreme Court to let him keep it.

Stories about civil forfeiture injustices are unfortunately common. What sets Timbs’s case apart is his legal argument: that the Eighth Amendment’s ban on excessive fines should shield his property from confiscation at the state level. If the Supreme Court takes up the case and agrees, the justices could impose some much-needed barriers on state and local governments’ voracious appetites for fees, fines, and forfeitures....

Undercover officers solicited from Timbs, buying just under four grams of heroin for less than $400. He was arrested and charged with dealing a controlled substance and conspiracy to commit theft. Timbs pleaded guilty and received a six-year sentence to be served outside prison walls. The state also tried to seize his Land Rover, kicking off the legal battle that ultimately brought him to the Supreme Court.

The trial court refused to authorize the seizure. Indiana law only allowed a $10,000 fine for Timbs’s sentence, and the court concluded that seizing a vehicle worth four times as much as that threshold would be “grossly disproportionate” relative to Timbs’s crime. The Indiana Court of Appeals upheld the decision after their own review of the circumstances. But the Indiana Supreme Court intervened and approved the seizure.

The judges’ unanimous opinion rested on a precedent, or lack thereof: The U.S. Supreme Court has never applied the Eighth Amendment’s Excessive Fines Clause to the states. Other lower courts have chosen to do so without waiting for the top justices, but Indiana’s Supreme Court was uninterested in following that path for Timbs’s benefit. “Indiana is a sovereign state within our federal system, and we elect not to impose federal obligations on the State that the federal government itself has not mandated,” the court declared. Timbs, with his petition in January, is now asking the U.S. Supreme Court to overturn that ruling.... But the Excessive Fines Clause is ripe for consideration in the age of mass incarceration. Impoverished Americans often lack the resources to pay off the fines and fees that can come from even a casual brush with the criminal-justice system. In a cruel twist, the inability to pay these costs can result in jail time itself. Keeping oneself out of trouble is also no guarantee of immunity: A 2014 Washington Post investigation, for example, found that police in multiple states use “highway interdiction” to target thousands of motorists for seizures of cash and property....

Civil-asset forfeiture, though still common, has come under increasing scrutiny across the political spectrum. Attorney General Jeff Sessions’s push last year to revive the practice at the federal level drew harsh rebukes from the ACLU and congressional Republicans alike. Justice Clarence Thomas set off a signal flare of sorts last April suggesting he had doubts about the practice’s constitutionality.

The Indiana case revolves around different legal questions that the ones Thomas was asking last year, but the underlying injustices are the same. Taking up the issue would give the justices a chance to set new limits on excessive fines and forfeitures for cash-hungry counties and cities. For Timbs and thousands of other Americans, that intervention would be a welcome relief.

April 17, 2018 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Is Justice Gorsuch ready, willing, and eager to blow up the civil/criminal divide?

Justice Neil Gorsuch served as the swing vote and issued quite an interesting concurring opinion this morning in Sessions v. Dimaya, No. 15-1498 (S. Ct. April 17, 2018) (available here).  Various aspects of Judge Gorsuch's opinion may merit commentary, but the question in the title of this post was my reaction to his various comments about civil sanctions and criminal punishments.    Though many constitutional doctrines make critical and consequential distinctions between civil sanctions and criminal punishments, Justice Gorsuch seemingly does not think there is much "there there."  Here are the passages that I found especially striking in this regard:

[I]f the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments.  Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely.  Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes — and often harsher than the punishment for felonies....

My colleagues suggest the law before us should be assessed under the fair notice standard because of the special gravity of its civil deportation penalty.  But, grave as that penalty may be, I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly severe sanctions.  Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home?  I can think of no good answer.

I find heartening Justice Gorsuch's obvious disaffinity for watered-down procedural rights (too) often applied to severe "civil" sanctions, and I think litigators challenging these kinds of sanctions can and should be sure to cite this concurring opinion along the way.

April 17, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15)

Two notable opinions from SCOTUS on vagueness and habeas review

The US Supreme Court handed down two big opinions this morning that criminal justice fans will want to check out. Here are the basics with links from How Appealing:

Justice Elena Kagan announced the judgment of the Court and delivered the opinion of the Court in large measure in Sessions v. Dimaya, No. 15-1498. Justice Neil M. Gorsuch issued an opinion concurring in part and concurring in the judgment. Chief Justice John G. Roberts, Jr. issued a dissenting opinion, in which Justices Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito, Jr. joined. And Justice Thomas issued a dissenting opinion, in which Justices Kennedy and Alito joined in part.

Justice Stephen G. Breyer delivered the opinion of the Court in Wilson v. Sellers, No. 16-6855.  Justice Gorsuch issued a dissenting opinion, in which Justices Thomas and Alito joined. 

The Dimaya opinion, which runs nearly 100 pages in total, starts this way:

Three Terms ago, in Johnson v. United States, this Court held that part of a federal law’s definition of “violent felony” was impermissibly vague. See 576 U. S. ___ (2015). The question in this case is whether a similarly worded clause in a statute’s definition of “crime of violence” suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does.

The Wilson opinion is much shorter, but its start is much longer:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a prisoner who challenges (in a federal habeas court) a matter “adjudicated on the merits in State court” to show that the relevant state-court “decision” (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254(d).  Deciding whether a state court’s decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact requires the federal habeas court to “train its attention on the particular reasons — both legal and factual — why state courts rejected a state prisoner’s federal claims,” Hittson v. Chatman, 576 U.S. ___, ___ (2015) (GINSBURG, J., concurring in denial of certiorari) (slip op., at 1), and to give appropriate deference to that decision, Harrington v. Richter, 562 U.S. 86, 101–102 (2011).

This is a straightforward inquiry when the last state court to decide a prisoner’s federal claim explains its decision on the merits in a reasoned opinion. In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable. We have affirmed this approach time and again. See, e.g., Porter v. McCollum, 558 U.S. 30, 39–44 (2009) (per curiam); Rompilla v. Beard, 545 U. S. 374, 388–392 (2005); Wiggins v. Smith, 539 U. S. 510, 523–538 (2003).

The issue before us, however, is more difficult.  It concerns how a federal habeas court is to find the state court’s reasons when the relevant state-court decision on the merits, say, a state supreme court decision, does not come accompanied with those reasons.  For instance, the decision may consist of a one-word order, such as “affirmed” or “denied.” What then is the federal habeas court to do?  We hold that the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale.  It should then presume that the unexplained decision adopted the same reasoning.  But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.

April 17, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

"The Consensus Myth in Criminal Justice Reform"

The title of this post is the title of this new paper now available via SSRN authored by Benjamin Levin.  Here is its abstract:

It has become popular to identify a “bipartisan consensus” on criminal justice reform, but how deep is that consensus, actually?  This Article argues that the purported consensus is largely illusory. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions.  The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article offers a typology of the two prevailing, but fundamentally distinct, critiques of the system:

(1) the quantitative approach (what I call the “over” frame); and

(2) the qualitative approach (what I call the “mass” frame).

The “over” frame grows from a belief that criminal law has an important and legitimate function, but that the law’s operations have exceeded that function.  This critique assumes that there are optimal rates of incarceration and criminalization, but the current criminal system is sub-optimal in that it has criminalized too much and incarcerated too many. In contrast, the “mass” frame focuses on the criminal system as a socio-cultural phenomenon.  This reformist frame indicates that the issue is not a mere miscalculation; rather, reforms should address how the system marginalizes populations and exacerbates both power imbalances and distributional inequities.

To show how these frames differ, this Article applies the “over” and the “mass” critique, in turn, to the maligned phenomena of mass incarceration and overcriminalization.  The existing literature on mass incarceration and overcriminalization displays an elision between these two frames. Some scholars and reformers have adopted one frame exclusively, while others use the two interchangeably.  No matter how much scholars and critics bemoan the troubles of mass incarceration and overcriminalization, it is hard to believe that they can achieve meaningful reform if they are talking about fundamentally different problems.

While many reformers may adopt an “over” frame in an effort to attract a broader range of support or appeal to politicians, “over” policy proposals do not reach deeper “mass” concerns.  Ultimately, then, this Article argues that a pragmatic turn to the “over” frame may have significant costs in legitimating deeper structural flaws and failing to address distributional issues of race, class, and power at the heart of the “mass” critique.

April 17, 2018 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Monday, April 16, 2018

"Marijuana legalization can’t fix mass incarceration" ... but it should help a bit

German Lopez has this short piece on Vox, which carries the headline appearing in quotes in this post title and this subtitle: "A Republican and Democrat pointed to marijuana prohibition to explain mass incarceration. They’re both wrong." Here are key excerpts:

Over the past week, prominent political figures from both sides of the aisle have suggested that the prohibition of marijuana is to blame for mass incarceration.

Former House Speaker John Boehner, a Republican from Ohio, claimed, “When you look at the number of people in our state and federal penitentiaries, who are there for possession of small amounts of cannabis, you begin to really scratch your head.  We have literally filled up our jails with people who are nonviolent and frankly do not belong there.”  Sen. Brian Schatz, a Democrat from Hawaii, tweeted, “More than 2 million in jail, mostly black and brown, many for holding a small amount of marijuana.”

The suggestion, however, is wrong. It is true that a lot of people are arrested each year for marijuana. In 2016, nearly 600,000 people were arrested for simple marijuana possession. These arrests on their own can create huge problems — leading to criminal records that can make it harder to get a job, housing, or financial aid for college.

But these arrests are only a small part of America’s mass incarceration problem. First, most people in jail or prison are not in for drug charges at all. According to the Prison Policy Initiative, around 21 percent of people in jail or prison are in there for a drug crime, including marijuana possession....

How many of the 21 percent of drug offenders are in for marijuana possession? Unfortunately, we don’t have good data for jails, where people are held before they’re convicted of a crime and for shorter sentences. We also don’t have good data for state prisons, where more than 87 percent of US prison inmates are held, based on federal data. But we do know that a minority of state prisoners are in for drugs: In 2015, 3.4 percent of all state prisoners were in for drug possession and 11.7 percent were in for other drug-related crimes. So only a fraction of prisoners are locked up due to drug prohibition in general, much less marijuana prohibition in particular.

We do have some good data for the federal system. According to the US Sentencing Commission, 92 of nearly 20,000 people — fewer than half a percent — sentenced for drug offenses during fiscal year 2017 were locked up due to simple possession of marijuana.

I am glad to see efforts to correct (all-too-common) claims that much of mass incarceration can be attributed to marijuana prohibition, and it is especially galling to see Boehner and Schatz suggest that a significant portion of persons are imprisoned for mere possession of small quantities of marijuana. That is not the reality now, nor has it ever been.

That said, as the arrest data highlight, a whole lot of people get entangled with the criminal justice system because of marijuana prohibition. And trafficking in marijuana (which becomes legal with marijuana legalization) has landed tens of thousands of people in US prison in recent decades. The latest data from the US Sentencing Commission, interestingly, shows that the number of persons federally prosecuted for marijuana trafficking dropped from 6792 in Fiscal Year 2012 to only 3381 in Fiscal Year 2016.  These data suggest to me that the era of marijuana legalization in the states has had a real impact on marijuana prosecutions (and imprisonment) at the federal level.

So while marijuana legalization (nor any other single reform) will alone fix mass incarceration, there is a basis to believe it could help a bit.  (Also, I must add that if former House Speaker John Boehner was sincerely concerned about the number of people in our state and federal penitentiaries, there is a lot more he should be doing besides now advising a marijuana company.)

April 16, 2018 in Marijuana Legalization in the States, Pot Prohibition Issues, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Two notable recent sentencing commentaries on work ahead for Congress

Thehill-logo-bigIn recent months I have noticed lots of notable sentencing commentary in the publication The Hill.  And Friday The Hill published two sentencing commentaries of note. They are linked below with their first few paragraphs:

"Congress must act to fix our broken criminal justice system" by Reps. Cedric Richmond (D-LA.) & Mark Walker (R-N.C.):

Our criminal justice system is crumbling.  Over the last 40 years, our domestic incarceration rate has quadrupled, creating a crisis of more than 2 million people behind bars in the United States today.  Simultaneously, recidivism rates have grown or remained high across almost every identifiable demographic or cross section.  And yet, crime rates have steadily fallen.

This paradox exposes a simple fact: our criminal justice system is in desperate need of reform.  What’s more, almost everyone in Congress knows it. Passing significant reforms to our criminal justice system could bring relief to families and communities in every state, district and territory.

Over the past few weeks, at our respective retreats, members of Congress from both parties discussed our priorities.  We believe criminal justice reform needs to be on the top of that list.

Since arriving in Congress, we have seen increasing awareness, education, energy and interest in criminal justice reform, but, to date, we have not been able to enact necessary changes.  Senators have formed working groups.  The House Judiciary Committee passed strong, bipartisan legislation out of committee last year. But no tangible results.  That has to change.

"Reviving the war on drugs is exactly the wrong response to the opioid crisis" by Ames Grawert & James Cullen:

This week on Capitol Hill, lawmakers met to discuss a bill that would impose draconian mandatory minimum sentences on even minor crimes involving the synthetic opioid fentanyl.  The hearing follows news that the Trump administration will seek the death penalty for drug dealers, part of his overall “war on opioids.”

“You just can’t pass a law increasing punishment and expect the opioid crisis to go away,” Sen. Lindsey Graham (R-S.C.) appeared to acknowledge at the outset.  “But it’s a pretty good place to start.”

It’s not.  It’s a bad place to start.  This is the logic of mass incarceration, the instinct to always demand the harshest punishment possible. It animates the Trump administration and its Congressional allies on everything from drug policy to immigration.  And it doesn’t work.  Reform advocates can’t be lulled by the false promise of reform.  We need to fight back before we repeat the mistakes of the 1970s.

April 16, 2018 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Sunday, April 15, 2018

"The Role of Age in Plea Bargain Decision Making"

The title of this post is the title of this intriguing paper recently posted to SSRN authored by Anton Gollwitzer.  Here is its abstract:

Research has elucidated that defendants in criminal cases behave differently depending on their age.  How age specifically affects plea bargain behavior, however, has only been sparsely investigated.  In four studies, we observed that age influences whether lay individuals’ plea bargain decision making is concordant (i.e., accept plea bargains if guilty and opt for trial if innocent) or discordant (i.e., accept a plea bargain if innocent and opt for a trial if guilty) in ‘mock’ criminal scenarios.

In line with emerging adults’ (18-28 years old) increased just-world beliefs and illusions of transparency, Study 1 provided indirect evidence that emerging adults’ plea bargain decision making is more concordant than mature adults (29-40).  Study 2, however, found that this effect is dependent on the defendant’s likelihood of conviction.  Studies 3 and 4 emulated Studies 1 and 2, however, they examined how parents of differently aged children advise their children regarding plea bargains decision making.  Parents of younger children (8-11 years old) advised their child similarly to how they themselves would act.  Parents of adolescents (12-18), on the other hand, adopted an entirely concordant approach, advising their adolescent child to behave according to their child’s culpability.  Overall, we find that individuals’ approach to plea bargain decision making depends on their age group (or the age group of their children), culpability, and probability of conviction.

April 15, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Interesting intricate ruling from Wyoming Supreme Court about limits on extreme aggregate sentences for juve murderers

For whatever reason, the last few months have brought a number of big notable opinions from an array of courts concerning the reach and application of the Supreme Court's Eighth Amendment jurisprudence limiting severe sentences for juvenile offenders. See examples here and here and here and here from the Third Circuit, the District of Connecticut, and the Iowa Supreme Court and the Georgia Supreme Court. 

The latest (and perhaps longest) such opinion was handed down on Friday by the Wyoming Supreme Court in Davis v. Wyoming, 2018 WY 40 (April 13, 2018) (available here).  The majority opinion in Davis covers an array of substantive and procedural issues, and it start and ending provide a flavor of its work:

In 1982, when Donald Clyde Davis was seventeen years old, he and a friend picked up a hitchhiker, robbed, and then murdered him.  Mr. Davis pled guilty to first degree murder, felony murder, and aggravated robbery. He was sentenced to life imprisonment with a consecutive twenty-to-fifty-year sentence for aggravated robbery.  Following the decisions of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Montgomery v. Louisiana, U.S. , 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), Bear Cloud v. State, 2013 WY 18, 294 P.3d 36 (Wyo. 2013) (Bear Cloud II), and the Wyoming Legislature’s amendment to Wyo. Stat. Ann. § 6-10-301(c), after serving over thirty-three years, Mr. Davis was granted parole from his life sentence, began serving his consecutive twenty-to-fifty-year sentence, and received a new individualized sentencing hearing.  After the hearing, the district court declined to modify his original sentence.  Mr. Davis appeals and raises a number of issues regarding his sentence. We will reverse and remand with instructions to conduct a new individualized sentencing hearing....

We find that the district court abused its discretion by weighing Mr. Davis’ youth as an aggravating instead of mitigating factor; considering the nature of the crime to only a limited extent and failing to consider the participation and potential peer pressure of Mr. Davis’ codefendant; placing undue significance on dated psychological evaluations; concluding that he was not capable of rehabilitation without the benefit of expert testimony concerning Mr. Davis’s potential for rehabilitation, and by considering Mr. Davis’ disciplinary record in prison without taking into account the fact that for the majority of his incarceration he had no hope of release, and without weighing his accomplishments and personal growth while in the penitentiary.  The district court’s failure to consider Mr. Davis’ family and home environment and whether he might have been convicted of a lesser offense but for incompetencies associated with youth, without providing an explanation for omitting analysis of those factors, also constituted an abuse of discretion. Finally, the district court abused its discretion by failing to make a finding of permanent incorrigibility based upon its analysis of all the Miller factors.  When the Miller factors are not properly considered and weighed and when there is no finding of permanent incorrigibility, or when a finding of permanent incorrigibility is not supported by the Miller factors, the resulting sentence violates the Eighth Amendment.

Accordingly, we reverse.  At the time of the hearing and the district court’s decision, the parties and the district court did not have the advantage of our rulings concerning the procedure, burdens, and potentially relevant evidence for a Miller determination, contained here.  Consequently, remand for an additional sentencing hearing and resentencing is appropriate.  On remand, the sentencing court should approach the case with the understanding that, more likely than not, life without parole is a disproportionate sentence for Mr. Davis, and it should consider the Miller factors and decide whether he is the truly rare individual mentioned in Miller who is incapable of reform.

The dissent opinion in Davis likewise covers lots of group, but its start spotlights an issue that I suspect will be setting US Supreme Court attention relatively soon:

As I observed in Sam v. State, 2017 WY 98, ¶ 88, 401 P.3d 834, 862 (Wyo. 2017), reh’g denied, and Sen v. State, 2017 WY 30, ¶¶ 36-37, 390 P.3d, 769, 779 (Wyo. 2017) (Sen III), the United States Supreme Court has not prohibited consecutive sentences for juveniles who commit multiple crimes including murder.  The U.S. Supreme Court never found such sentences to be “the functional equivalent of life without parole.”  I continue to disagree with the concept of “de facto life without parole” arising from consecutive sentences for separate crimes.  In my opinion, the U.S. Supreme Court established a process to assure that a juvenile offender’s age, immaturity and potential for improvement are considered in sentencing.  Unfortunately, some courts, including this one, have focused on the result of the sentencing, rather than on the process.

I recognize some states have concluded that Miller, Graham and Montgomery point to a conclusion that lengthy consecutive sentences for juveniles, when aggregated, are the same as a single sentence of life without parole.  Other states have not done so.  I find the better logic supports those states who have not expanded the holdings in Miller, Graham and Montgomery.  Within the past year, Missouri, Colorado and Pennsylvania have all determined that Miller and Montgomery do not apply to the aggregation of consecutive term of years sentences for multiple crimes committed by a defendant under the age of 18.

April 15, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Friday, April 13, 2018

"President Trump has promised a top Senate Republican that he will support congressional efforts to protect states that have legalized marijuana"

The title of this post is the lead sentence of this new Washington Post article headlined "Trump, Gardner strike deal on legalized marijuana, ending standoff over Justice nominees." Here is more from the article:

In January, the Colorado Republican said he would block all DOJ nominations after Attorney General Jeff Sessions issued a memo that heightened the prospect of a federal marijuana crackdown in states that had legalized the substance. Gardner’s home state made recreational marijuana legal in 2014.

In a phone call late Wednesday, Trump told Gardner that despite the DOJ memo, the marijuana industry in Colorado will not be targeted, the senator said in a statement Friday. Satisfied, the first-term senator is now backing down from his nominee blockade.

“Since the campaign, President Trump has consistently supported states’ rights to decide for themselves how best to approach marijuana,” Gardner said Friday. “Late Wednesday, I received a commitment from the President that the Department of Justice’s rescission of the Cole memo will not impact Colorado’s legal marijuana industry.”

He added: “Furthermore, President Trump has assured me that he will support a federalism-based legislative solution to fix this states’ rights issue once and for all. Because of these commitments, I have informed the Administration that I will be lifting my remaining holds on Department of Justice nominees.”...

Trump “does respect Colorado’s right to decide for themselves how to best approach this issue,” White House legislative affairs director Marc Short said in an interview Friday....

A bill has not been finalized, but Gardner has been talking quietly with other senators about a legislative fix that would, in effect, make clear the federal government cannot interfere with states that have voted to legalize marijuana. “My colleagues and I are continuing to work diligently on a bipartisan legislative solution that can pass Congress and head to the President’s desk to deliver on his campaign position,” Gardner said.

In addition to Gardner’s holds, DOJ has faced notable bipartisan pushback from Capitol Hill when it comes to marijuana. Sens. Orrin G. Hatch (R-Utah) and Kamala D. Harris (D-Calif.) wrote to Sessions this week, urging him to back off efforts to curtail medical marijuana research at the Drug Enforcement Administration. The Washington Post reported in August that Sessions’s DOJ was effectively hamstringing the agency’s research efforts by making it harder to grow marijuana.

Separately, former House Speaker John A. Boehner (R-Ohio) announced this week he is joining the board of directors for a cannabis company and engaged in efforts to allow veterans to access marijuana for medicinal use. He has opposed decriminalizing the substance as an elected official.

A few recent related posts from Marijuana Law, Policy and Reform:

April 13, 2018 in Criminal justice in the Trump Administration, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (6)

Prez Donald Trump officially pardons Scooter Libby

Today the White House issued this "Statement from the Press Secretary Regarding the Pardon of I. “Scooter” Lewis Libby." Here is what it says:

Today, President Donald J. Trump issued an Executive Grant of Clemency (Full Pardon) to I. “Scooter” Lewis Libby, former Chief of Staff to Vice President Richard Cheney, for convictions stemming from a 2007 trial. President George W. Bush commuted Mr. Libby’s sentence shortly after his conviction. Mr. Libby, nevertheless, paid a $250,000 fine, performed 400 hours of community service, and served two years of probation.

In 2015, one of the key witnesses against Mr. Libby recanted her testimony, stating publicly that she believes the prosecutor withheld relevant information from her during interviews that would have altered significantly what she said. The next year, the District of Columbia Court of Appeals unanimously reinstated Mr. Libby to the bar, reauthorizing him to practice law. The Court agreed with the District of Columbia Disciplinary Counsel, who stated that Mr. Libby had presented “credible evidence” in support of his innocence, including evidence that a key prosecution witness had “changed her recollection of the events in question.”

Before his conviction, Mr. Libby had rendered more than a decade of honorable service to the Nation as a public servant at the Department of State, the Department of Defense, and the White House. His record since his conviction is similarly unblemished, and he continues to be held in high regard by his colleagues and peers.

In light of these facts, the President believes Mr. Libby is fully worthy of this pardon. “I don’t know Mr. Libby,” said President Trump, “but for years I have heard that he has been treated unfairly.  Hopefully, this full pardon will help rectify a very sad portion of his life.”

I sure hope that Prez Trump might think to use his pardon powers for lots of other persons that he doesn't know that he may "have heard [were] treated unfairly" by our federal criminal justice system. So far, only a quite unrepresentative sample of four men have gotten clemency relief from this President.

April 13, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

US District Judge explains why he believes "the scales of justice tip in favor of rejecting plea bargains"

A helpful reader made sure I saw a remarkable new opinion from US District Judge Joseph Goodwin of the US District Court for the Southern District of West Virginia in US v. Stevenson, No. 2:17-cr-00047 (S.D. W. Va. April 12, 2018) (available here). The starts of the 19-page opinion should readily reveal why criminal justice fans why this opinion is today's must-read:

On June 26, 2017, I rejected the proffered plea agreement in United States v. Charles York Walker, Jr. after determining that it was not in the public interest.  On October 10, 2017, I rejected the proffered plea agreement in United States v. Antoine Dericus Wilmore after determining that it also was not in the public interest.  In both opinions, I stated that it is the court’s function to prevent the transfer of criminal adjudications from the public arena to the prosecutor’s office for the purpose of expediency at the price of confidence in and effectiveness of the criminal justice system.

I have further reflected upon the near-total substitution of plea bargaining for the system of justice created by our nation’s Founders, and I FIND that I should give great weight to the people’s interest in participating in their criminal justice system when considering whether to accept or reject a proffered plea bargain in a particular case.  I FIND that the scales of justice tip in favor of rejecting plea bargains unless I am presented with a counterbalance of case-specific factors sufficiently compelling to overcome the people’s interest in participating in the criminal justice system.

Therefore, in each case, I will consider the case-specific factors presented to me and weigh those competing factors against the people’s participatory interest and then determine whether to accept or reject the plea bargain. Because I FIND that the presented justifications for the bargain in this case are insufficient to balance the people’s interest in participating in the criminal justice system, I REJECT the proffered plea agreement.

Wowsa! #morejurytrials?

April 13, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (16)

Prez Trump reportedly to pardon Scooter Libby

According to this ABC News piece, "President Donald Trump is poised to pardon Scooter J. Libby, the former chief of staff to Vice President Dick Cheney, according to sources familiar with the president’s thinking." Here is more:

The president has already signed off on the pardon, which is something he has been considering for several months, sources told ABC News.

The move would mark another controversial pardon for Trump and could raise questions as an increasing number of the president’s political allies have landed themselves in legal jeopardy. The White House has repeatedly said that no pardons are currently on the table for people caught up in the Russia investigation....

Libby was convicted in 2007 of lying to the FBI and obstruction of justice in the investigation into the leak of the identity of Valerie Plame, a former covert CIA operative. Then-President George Bush commuted Libby's 30-month sentence, sparing him prison time, but didn't pardon him.

After Libby claimed that he couldn't have been the source of the leak, multiple people came forward to testify that they learned of Plame's identity from Libby prior to when Libby said he had first received the information. At trial, Libby claimed to have simply forgotten he actually learned about the identity from Cheney a month before he said he had.

Since the conviction, Libby has since had his law license restored and former Virginia Gov. Bob McDonnell restored his voting rights in 2013. Many conservatives have been urging a pardon for Libby, including attorneys Joe diGenova and his wife, Victoria Toensing.

I am sincerely not sure what to say about this news, other than that I am tempted to go back and read some of the article I helped assemble for this October 2007 issue of the Federal Sentencing Reporter titled "Learning from Libby." I suppose I should be excited by the efforts of Prez Trump to make old issues of FSR great again.

April 13, 2018 in Clemency and Pardons, White-collar sentencing, Who Sentences? | Permalink | Comments (8)

Thursday, April 12, 2018

US Sentencing Commission adopts (mostly minor?) 2018 guideline amendments

As reported in this official press release, "The United States Sentencing Commission unanimously voted on a slate of new amendments to the Guidelines Manual. Among other actions, the Commissioners voted to update the federal sentencing guidelines to address evolving challenges related to the distribution of synthetic drugs. The amendments reflect a collaborative, detailed, and data-driven approach to federal sentencing policy." Here are the substantive details:

At the meeting, the Commissioners approved a multi-part synthetic drugs amendment. The amendment draws upon public comment, expert testimony, and data analysis gathered during a multi-year study of synthetic drugs. Before today’s actions, many new synthetic drugs were not referenced in the federal sentencing guidelines. As a result, courts have faced expensive and resource-intensive hearings. The Commission’s actions reflect the evolving nature of these new drugs and will simplify and promote uniformity in sentencing these offenders.

Among today’s actions, the Commissioners voted to adopt a new guideline definition of the term “fentanyl analogue.” The change effectively raises the guideline penalties for fentanyl analogues to a level more consistent with the current statutory penalty structure. To address the severe dangers posed by fentanyl, the Commissioners also voted to adopt a four-level sentencing enhancement for knowingly misrepresenting or knowingly marketing fentanyl or fentanyl analogues as another substance (which equates to an approximate 50 percent increase in sentence).

The new amendment also establishes drug ratios and minimum offense levels for two new classes of synthetics drugs: synthetic cathinones (often referred to as “bath salts”) and synthetic cannabinoids (including, but not limited to, “K2” or “spice”). Following a multi-year study and series of public hearings with experts, the Commission found that synthetic cathinones possess a common chemical structure that is sufficiently similar to treat as a single class of synthetic drugs. The Commission also found that, while synthetic cannabinoids differ in chemical structure, the drugs induce similar biological responses and share similar pharmacological effects. In setting the new drug ratios, the Commission considered among other factors, the severity of the medical harms to the user, the current ratios applied in similar cases, known trafficking behaviors, and concerns for public safety. In recognition that potencies vary, the Commission also adopted departure language for drugs in a class that are more or less potent.

The Commission also voted to adopt a new application note providing that judges should consider alternative sentencing options for “nonviolent first offenders” whose applicable guideline range falls within Zones A or B. Eligible defendants must not have any prior convictions and must not have used violence, credible threats of violence, or possessed a firearm or other dangerous weapon in the offense. This narrowly-tailored amendment is consistent with the directive to the Commission in 28 U.S.C. § 994(j)....

At the meeting, the Commission also increased offense levels for certain Social Security fraud offenses to incorporate statutory changes resulting from the Bipartisan Budget Act of 2015. The Commission received valuable comment from the U.S. Senate Committee on Finance, the U.S. House of Representatives Ways and Means Committee, and the U.S. House of Representatives Judiciary Committee as well as the Social Security Administration. Today’s amendment provides for an enhancement and a minimum offense level for individuals who violate certain positions of trust (e.g., health care providers, claims representatives, and others) in a manner that addresses the seriousness and sophistication of these fraudulent schemes.

The Commission also voted to adopt the recommendations made by the Tribal Issues Advisory Group in its May 2016 report. The amendment provides a non-exhaustive list of factors that courts may consider in determining whether a prior tribal court conviction warrants an upward departure from the recommended sentencing range. The amendment also adds a definition for "court protection order” for purposes of applying an enhancement under the aggravated assault, harassment, and domestic violence guidelines. Other technical and miscellaneous amendments were also adopted at today’s public meeting.

As the press release also explains, these amendments "will be transmitted to Congress by May 1, 2018 [and if] Congress does not act to disapprove the amendments, they will go into effect on November 1, 2018." A reader-friendly version of the amendments are available at this link.

As the title of this post suggest, I think most of the amendments here can and should be described as fairly minor, save for the reworking of of the treatment of synthetic drugs. But I would welcome input from those more informed on the particular about anything here that might be especially blogworthy.

April 12, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Federal prison reform bill reportedly moving forward in House of Representatives

This article in the Hill, headlined "Prison reform bill set for House markup next week," reports that there is some movement in Congress on the federal criminal justice reform bill that would seem to have a reasonable chance of passage this year.  Here are the details:

The House Judiciary Committee is expected next week to mark up a Republican proposal that aims to reduce prison recidivism rates, according to a senior Republican staffer who has been briefed on the plans.

Rep. Doug Collins’s (R-Ga.) Prison Reform and Redemption Act would allow prisoners to serve the final days of their sentences in a halfway house or home confinement if they complete evidence-based programs that have been shown to reduce recidivism rates. Prison programming could include everything from job and vocational skills training to education and drug treatment.

The White House announced in February it was throwing its support behind prison reform measures such as Collins's bill instead of measures to reduce mandatory minimum prison sentences. The announcement marked a major setback for Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who has been working to move his criminal justice reform bill through Congress after it stalled last session....

The senior Republican staffer said they feel confident Collins's bill will pass through the House Judiciary Committee. A committee spokesperson said only that the committee is working toward a markup as soon as possible.

Senate Majority Whip John Cornyn (R-Texas) and Sen. Sheldon Whitehouse (D-R.I.) have a bill in the Senate that mirrors Collins's proposal.

The full text of the Prison Reform and Redemption Act (PRRA) is available at this link, and its text is so dense I find it difficult to effectively summarize its provisions or assess its impact.  Helpfully, FAMM has this detailed summary of the PRRA that runs a full eight pages.  I am hopeful that this news that the PRRA is moving forward in the legislative process could lead more folks to focus more attention on what this bill would and would not do and how many offenders it could impact.

April 12, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (1)

Wednesday, April 11, 2018

Could former House Speaker John Boehner become the first big drug dealer capitally charged by AG Jeff Sessions?

Boehner-gopThe question in the title of this post is my (tongue-in-cheek?) reaction to this news that former Speaker of the United States House of Representatives John Boehner and former Governor of the State of Massachusetts Bill Weld have joined the Board of Advisors of Acreage Holdings.  This company in this press release calls itself "one of the nation’s largest, multi-state actively-managed cannabis corporations" and on this webpage states that it has "cultivation, processing and dispensing operations across 11 states with plans to expand." 

What this really means, legally speaking, is astutely explained in this tweet by LawProf Alex Kreit: "Oh look, here’s the former speaker of the house publicly announcing that he’s joined a conspiracy to manufacture and distribute a schedule I controlled substance and commit federal drug crimes on an ongoing basis."  But, critically, Boehner is not merely announcing that his is not part of a massive drug conspiracy, he is also perhaps putting himself in position to be subject to the new push by Attorney General Jeff Sessions, discussed here, to "strongly encourage federal prosecutors to use" a federal statute that allows for pursuing the death penalty under 18 U.S.C. § 3591(b)(1) for persons guilty of "dealing in extremely large quantities of drugs." 

Of course, as Christopher Ingraham explained in this Washington Post piece a few weeks ago, a whole lot of marijuana is required to make one eligible for the death penalty under federal law: "there is a federal capital punishment on the books for large quantities of marijuana — a substance with no known lethal dose that is legal for recreational use in nine states plus the District. The threshold is huge — 60,000 kilograms, or 60,000 plants, enough to fill several shipping containers."  But, for a company — or should I say major drug conspiracy — like Acreage Holdings, this amount of marijuana may well be a regular part of regular business operations: 

The quantity-based capital punishment provision is of particular concern to state-legal marijuana businesses.  The plant remains illegal under federal law, regardless of what state laws say.  Aaron Smith, executive director of the National Cannabis Industry Association, a trade group, said in an email that “there are many state-licensed cannabis businesses cultivating 60,000 plants or more.”

Needless to say, I am not expecting John Boehner or Bill Weld to be charged with a federal capital crime or any crime anytime soon.  But I am expecting folks who read this post to better understand why existing federal marijuana prohibition laws garner so little respect and why I think anyone seriously committed to the rule of law ought to be advocating for at least some kind of federal reforms regardless of their particular policy views on particular state marijuana reforms.

April 11, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4)

"Victims of crime and reformers should work together on criminal justice reform"

The title of this post is the headline of this Washington Examiner commentary authored by Jordan Richardson, Laurie Garduque, and Mai Fernandez.  Here are excerpts:

Recent criminal justice reforms, such as the creation of alternatives to incarceration and the tearing down of barriers to reentry from prison, have resulted in significant changes around the country.  Nonetheless, there’s one thing that has remained the same: policymakers are failing to consult crime victims prior to the development and deployment of these reforms.

This National Crime Victims’ Rights Week, we urge jurisdictions across the country to bring victims to the table and ask them what they think about criminal justice reform and how they can create a criminal justice system that better takes into account how to make victims whole.  Their suggestions may be surprising, and they will help ensure that the changes policymakers create will serve everyone affected by the justice system....

Too often, reformers avoid considering victims’ views because they assume the victims’ highest priority is punishment.  But this is far from the truth.  Recent polling published in 2017 by the Alliance for Safety and Justice found that only 4 percent of crime victims believe that “too few people in prison” contributes to crime in their community.  In fact, 86 percent of victims believe that programs providing rehabilitation and drug and mental health treatment for people already in the justice system should receive more funding.

In order to encourage more crime victims to participate in improving our criminal justice system, The National Center for Victims of Crime has solicited feedback from victims and their advocates around the country. They found that victims seek reliable, sufficient, and accessible services, and they want justice system transparency and trauma-informed responses to their experiences. Crime victims also believe the justice system should be dedicated in part to making victims whole again, beginning with providing notification and protection for victims when formerly incarcerated individuals reenter the community.

Furthermore, victims think that if people are enrolled in diversion programs such as mental health courts or ordered to participate in drug treatment as part of their probation, these services should be affordable, effective, and adequately supervised.  Lack of participant accountability causes victims to distrust and not want to engage with the justice system.

Crime victim survivors deserve a voice at the policy reform table. Many are strong supporters of the exact types of reforms criminal justice experts are advocating. They want their experiences to be acknowledged, and they want our justice system to be sensitive and respectful of their needs....

Ensuring that people coming out of prison have a chance to succeed should be a top concern, and victims can play a key role in informing policymakers about how to achieve public safety while respecting the human dignity of everyone involved.

Reformers must be willing to recognize that victims have been affected by unfair justice system policies and practices. They must also respond with adequate funding, research efforts, and resources. The question is, “How can we develop and transform our criminal justice system to improve services for everyone involved?”  We cannot afford to leave victims out of criminal justice reform.

April 11, 2018 in Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0)

Can and will New Mexico carry out two executions even after its repeal of the death penalty?

The question in the title of this post is prompted by this local report on oral arguments before the New Mexico Supreme Court yesterday.  Here are some details:

Even before abolishing the death penalty, New Mexico had executed only one inmate in nearly 50 years. And that person, child-killer Terry Clark, had waived his right to further appeals, clearing the way for his death by lethal injection in 2001.

The rarity of the death penalty in New Mexico emerged as a key point in oral arguments Tuesday as the state Supreme Court wrestled with whether to allow the execution of the state’s only two inmates remaining on death row. Their crimes came before the 2009 repeal, making them still eligible for execution.

Much of Tuesday’s debate was technical, focusing on “proportionality” — whether death for these two inmates would be out of line with the sentences for similar defendants who’d committed similar crimes.

Justice Charles Daniels zeroed in on the question this way: New Mexico, he said, executed 27 people in the first 47 years of statehood, and then only one in a 57-year period after that. And there were certainly people who committed “horrible murders” but escaped the death penalty, he said.

That raises a question, he suggested, about whether the state was “evenhanded” in deciding which people to execute. “Can we really look in the mirror and say we’ve walked the talk and imposed the death penalty consistently in New Mexico?” Daniels asked at one point.

Hanging in the balance are the lives of Robert Fry and Timothy Allen — both convicted of murder, in separate cases. Allen faces a death sentence for strangling a 17-year-old girl, Sandra Phillips, in 1994. He also was convicted of kidnapping and attempted rape. Fry was sentenced to die for the killing of Betty Lee, a mother of five, in 2000. She was hit with a sledgehammer and stabbed.

Their attorneys asked the state Supreme Court on Tuesday to revisit how New Mexico handled death cases from that era, in light of the 2009 repeal.

A 1983 decision by the court outlined how the judiciary should go about determining whether an inmate’s death sentence is disproportionate to the penalties imposed on similar defendants. The justices that year established a narrow view of which cases are similar — requiring that the defendants being compared had been convicted under the same aggravating circumstances.

But the attorneys for Fry and Allen argued for a broader pool of cases for comparison, in which defendants receive life sentences. You could argue that the “universe of cases” ought to include any case where the death penalty could have been sought, but wasn’t, they argued. Furthermore, they said, New Mexico hasn’t properly tracked the handling and circumstances of cases to provide a meaningful way to search for comparable crimes, making the 1983 decision impractical to carry out....

Assistant Attorney General Victoria Wilson urged the Supreme Court to stick with its 1983 decision on comparable cases. State law doesn’t require the kind of data collection the inmates’ attorneys say is necessary, she said. The question before the court, Wilson said, was simply whether the death sentence had been imposed arbitrarily.

April 11, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Tuesday, April 10, 2018

Looking into the modern state of the private prison industry in the states

The New York Times has this new extended article on the private prison industry as it operates in the states under the headline "Escapes, Riots and Beatings. But States Can’t Seem to Ditch Private Prisons." Here are excerpts:

In Arizona in 2015, a riot broke out in a private prison where previously three inmates had escaped and murdered a vacationing couple. After order was restored, the state revoked the contract of Management & Training Corporation and hired another private prison firm, the GEO Group.

Three years earlier, the GEO Group had surrendered its contract to run a Mississippi prison after a federal judge ruled that the inmates had not been protected from gang violence. The replacement: Management & Training Corporation.

The staying power of the two companies shows how private prisons maintain their hold on the nation’s criminal justice system despite large-scale failures.  The field is dominated by a handful of companies who have swallowed the competition and entrenched their positions through aggressive lawyering, intricate financial arrangements and in some cases, according to lawsuits by the Mississippi attorney general, bribery and kickbacks....

Private prison companies can be found at every level of government, housing 9 percent of the nation’s prisoners.  They emerged in the 1980s, when the number of inmates was quickly outstripping capacity, and they have an outsize influence in certain states, including Arizona, Florida, Hawaii, Mississippi and New Mexico.

Despite hundreds of lawsuits, findings that private prisons save taxpayers little to no money, and evidence of repeated constitutional violations, the number of privately housed inmates has risen faster since 2000 than the overall number of prisoners.  In 2016, the number rose by about 1.5 percent, according to Justice Department figures....

Even states that have sworn off private prisons, or tried to cut back on their use, have found it difficult to extricate themselves.  After the prisoners escaped in Arizona, the state tried to reduce the number of inmates held in that prison. But MTC claimed the state was violating its contract, which guaranteed a certain number of beds would be filled. Arizona had to pay the company $3 million. MTC still operates a facility in the state.

States that use private prisons can find themselves limited to a few big players. The largest are GEO Group, based in Florida; CoreCivic (formerly Corrections Corporation of America), based in Tennessee; and MTC, based in Utah. Two of the past four directors of the Federal Bureau of Prisons were later hired by CoreCivic.... The companies employ a variety of strategies, including hiring former corrections officials in high-level positions and giving what are sometimes enormous campaign contributions. GEO Group and CoreCivic gave close to half a million dollars to support Mr. Trump’s candidacy and inauguration. After he was elected, their stock prices soared.

Industry officials say they provide cost-effective ways to house inmates, and that they continue to expand into rehabilitation programs as more states seek alternatives to prison. CoreCivic says about 10,000 people in its facilities have obtained high school equivalency diplomas in the past five years, reflecting the company’s efforts to improve the ability of inmates to re-enter society.  But some lawmakers say the claims of cost savings and other benefits do not check out. “There is no convincing argument of why we should have private prisons,” said Mike Fasano, a former Republican state senator from Pasco County, Fla., who voted against a 2012 measure to privatize much of Florida’s prison system....

Much of the industry’s power, critics say, is linked to campaign donations. GEO Group and CoreCivic have given nearly $9 million over the past fifteen years to state candidates and parties across the United States, with the overwhelming majority to Republicans, according to the National Institute on Money in State Politics.  The two companies have also spent between $3 million and $4 million annually on lobbying, according to data from the institute and from the nonprofit Center for Responsive Politics.  Steve Owen, a CoreCivic spokesman, said the magnitude of lobbying and campaign contributions was not unusual for an industry of its size.

The industry also promises savings.  But such claims have been disputed, partly because many contracts allow the private prisons to cherry-pick the healthiest inmates while leaving those who need more care to publicly run facilities, making private prisons appear to be cheaper to run, critics say.  The Justice Department’s inspector general concluded in 2016 that it could not accurately compare costs, partly because of “the different nature of the inmate populations and programs offered in those facilities.”

The department ordered a phasing-out of private facilities that year, saying they “compare poorly” with government prisons and citing a lack of substantial cost savings. One month after Mr. Trump’s inauguration, the department rescinded the decision....

In some communities, private prisons have become such large taxpayers and employers that backers have forecast economic doom in arguing against their closing. Perhaps no town is now as dependent as Eloy, Ariz., where four private prisons pay $2 million of the town’s $12.5 million annual operating budget, according to the city manager, Harvey Krauss.

Last week the NY Times had this other article looking at private prison realities under the headline "Inside a Private Prison: Blood, Suicide and Poorly Paid Guards."

April 10, 2018 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Monday, April 09, 2018

Two notable new accounts of Jared Kushner's push for criminal justice reforms inside Trump Administration

This weekend brought two notable new articles focused on Jared Kushner's efforts to help move forward criminal justice reform from within the Trump Administration.  Here are links to the articles and their starts:

"Inside Jared Kushner's personal crusade to reform America's prisons":

Amid the daily turmoil and intrigue of President Donald Trump’s West Wing, senior adviser Jared Kushner has been quietly pursuing a personal passion: seeking to improve the lives of roughly 6.7 million people in jail, prison, on parole or probation in the United States and sharply reducing the chances ex-convicts return behind bars.

Over the past 14 months, the president’s son-in-law has met with dozens of members of Congress, 11 governors and convened nine listening sessions, with experts and advocates developing initiatives to reduce the nation’s recidivism rate, an administration official said.

Kushner’s mission has so far been largely below-the-radar in a White House that’s branded itself as tough on crime, but sources familiar with the effort say he has persisted in elevating it as a legislative priority – even winning the president’s ear. His approach is somewhat novel — taking the reins on an issue that traditionally has not been at the forefront of the Republican platform.

Along the way, Kushner’s had to carve an acceptable path for reform within the Republican party and with an attorney general, Jeff Sessions, who has long held tough on crime views. Kushner's "come in and provided a very good ‘let’s get it done’" attitude, said Republican Rep. Doug Collins of Georgia, a leading advocate on prison reform in the U.S. House.

President Trump has even come to see the effort as a way to help the “forgotten men and women” whose voices he vowed to represent with his historic 2016 campaign, according to several people close to the effort. One senior administration official went so far as to characterize the White House view of what they called unacceptable conditions of America’s prisons as being like warehouses for storing human trash.

“The Administration wants to assist long-time prison reform advocates with their initiative to create a prison system that will rehabilitate citizens who have made mistakes, paid the price and are deserving of a second chance — which will ultimately reduce crime and save taxpayer dollars,” Kushner told ABC News of the effort.

"For Trump son-in-law Jared Kushner, prison reform is personal":

President Donald Trump wants to help federal inmates “who have served their time get a second chance.” That’s what he said in his 2018 State of the Union address. Thank Trump’s senior aide and son-in-law Jared Kushner, not his attorney general. For Kushner, prison reform is personal. In 2005, his real estate mogul father was sentenced to two years in prison after pleading guilty to tax evasion, witness tampering and making illegal campaign donations.

“Like me, Jared understands because of dealing with the BOP (Bureau of Prisons) and his father,” observed Pat Nolan, director of the American Conservative Union Foundation’s Center for Criminal Justice Reform and a former California GOP state lawmaker who served 29 months in federal prison on a racketeering conviction.

Nolan has been at the forefront of a bipartisan movement to overhaul the federal criminal justice system spurred by the left’s aversion to big spending on prisons and the right’s support for smaller, less invasive government. The conservative side of the initiative calls itself “Right on Crime.” He lauded Kushner for quickly learning “what’s important to do and what we can’t do.”

April 9, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (2)

Saturday, April 07, 2018

"Capital Punishment Decisions in Pennsylvania: 2000-2010: Implications for Racial, Ethnic and Other Disparate Impacts"

The title of this post is the title of this notable empirical paper recently posted to SSRN and authored by John Kramer, Jeffery Todd Ulmer and Gary Zajac. Here is its abstract:

A study of disparity in the administration of the death penalty in Pennsylvania by Kramer, Ulmer, and Zajac (2017) was recently completed for the Pennsylvania Interbranch Commission on Gender, Racial, and Ethnic Fairness.  This study collected basic statistical data on 4,274 cases charged with homicide in Pennsylvania from 2000 to 2010, and then collected highly detailed data from courts and prosecutors’ offices on a subset of 880 first degree murder convictions in 18 counties accounting for more than 87% of all 2000-2010 first degree murder convictions.  Utilizing propensity score methods in analyses of these first degree murder convictions, the study examined whether defendants’ and victims’ race/ethnicity (separately and in combination), predicted: 1) prosecutors’ decisions to seek the death penalty, 2) prosecutors’ decisions to retract a motion to seek the death penalty once it is filed, and 3) court decisions to sentence defendants to death or life without parole.

Key findings were: 1) No pattern of disparity was found to the disadvantage of Black or Hispanic defendants in prosecutors’ decisions to seek and, if sought, to retract the death penalty.  2) Black and Hispanic defendants were not disadvantaged in death penalty sentence decisions relative to White defendants. 3) Cases with White victims, regardless of race of defendant, were 8% more likely to receive the death penalty, while Black victim cases were 6% less likely to receive the death penalty. 4) Prosecutors filed to seek the death penalty in 36% of first degree convictions; but later retracted that filing in 46% of those cases.  Moreover, a predominant pattern emerged in which a death penalty filing strongly predicted a guilty plea in these murder cases, and pleading guilty strongly predicted the retraction of the death penalty filing. 5) There were very large differences between counties in the likelihood of prosecutors filing to seek the death penalty, the likelihood of their retracting that filing, and in courts imposing the death penalty.  In fact, the biggest extra-legal influence on whether defendants faced or received the death penalty was where their cases were handled.  6) Public defenders were less likely than private or court appointed attorneys to have the death penalty filed in cases they represented.  However, public defender cases were more likely to receive the death penalty, and defendants represented by private attorneys were especially unlikely to receive the death penalty.  These defense attorney differences also, in turn, varied greatly between counties.

April 7, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Friday, April 06, 2018

AG Sessions announces new "zero-tolerance policy" for immigration offenses ... which could mean ... (a lot or no) more fast-track sentencing?

This new Department of Justice press release reports on a notable new announcement from the Attorney General. Here is the substantive heart of the release:

Attorney General Jeff Sessions today notified all U.S. Attorney’s Offices along the Southwest Border of a new “zero-tolerance policy” for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien. The implementation of the Attorney General’s zero-tolerance policy comes as the Department of Homeland Security reported a 203 percent increase in illegal border crossings from March 2017 to March 2018, and a 37 percent increase from February 2018 to March 2018 — the largest month-to-month increase since 2011.

“The situation at our Southwest Border is unacceptable. Congress has failed to pass effective legislation that serves the national interest — that closes dangerous loopholes and fully funds a wall along our southern border. As a result, a crisis has erupted at our Southwest Border that necessitates an escalated effort to prosecute those who choose to illegally cross our border,” said Attorney General Jeff Sessions. “To those who wish to challenge the Trump Administration’s commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice. To the Department’s prosecutors, I urge you: promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. You play a critical part in fulfilling these goals, and I thank you for your continued efforts in seeing to it that our laws — and as a result, our nation — are respected.”...

Today’s zero-tolerance policy further directs each U.S. Attorney’s Office along the Southwest Border (i.e., Southern District of California, District of Arizona, District of New Mexico, Western District of Texas, and the Southern District of Texas) to adopt a policy to prosecute all Department of Homeland Security referrals of section 1325(a) violations, to the extent practicable.

The one-page memo sent from AG Sessions to all federal prosecutors along the Southwest border is available at this link, and the title of this post flags the big follow-up question that I have.

As federal sentencing fans know, the large number of immigration cases historically prosecuted in border districts led to the creation of a special kind of sentencing adjustment (known as a "fast-track" departure) in order to speed case-processing through sentence reductions. If, as this AG Sessions memo suggests, prosecutors on the border are now going to be bringing even more immigration prosecutions, I would expect to see even more "fast-track" departures. But the memo above speaks of bringing the "full prosecutorial powers of the Department of Justice" to those "illegally entering this country." That language would arguably suggest that federal prosecutors ought not anymore be agreeing to lower sentences for offenses under 8 U.S.C. § 1325(a) now that we are to have a "zero-tolerance policy."

April 6, 2018 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Making the case for making the best of federal sentencing changes in the form of prison reform

Lars Trautman has this notable new Hill commentary, headlined "Incentivized early release the right path to sentencing reform under Trump-Sessions," making the argument that advocates ought to pursue even limited prison reform if that is the only form of politically viable federal sentencing reform. Here are excerpts:

The heated “tough-on-crime” rhetoric of the president and many in his administration has greatly complicated criminal justice reform efforts and left Congress scrambling to figure out how to make sentencing reform palatable to the White House.  The problem has become particularly acute after the attorney general summarily dismissed one of the Senate’s leading proposals and the White House sent Congress a set of criminal justice priorities that pointedly ignored front-end sentencing reforms.

So how can Congress possibly move the needle on something as controversial as federal sentencing reform under this administration?

By passing sentencing reform that doesn’t look like sentencing reform.  Plans that reduce the potential penalties for certain offenses or provide other sentencing safety valves have struggled because they focus on the crime committed, essentially forcing proponents to argue that an individual deserves less punishment for a given offense. This is a fundamentally moral issue that has no easy answer.  It’s particularly susceptible to emotional appeals that couple a shared sense of outrage at criminal behavior with a fear of emboldening criminals.

As long as the focus remains on the wrong perpetrated, opponents are able to falsely claim that it’s impossible to be in favor of both victims and criminals, and then portray themselves as defenders of the former....  As worthy and necessary as this kind of front-end reform may be, demanding its inclusion is much more likely to frustrate than achieve any criminal justice reform.

So, if traditional sentencing reform is dead in the water, what’s left?  Reentry programs that offer prisoners the opportunity to shorten their sentences on the back-end would be a good place to begin.  Rather than trimming sentences from the start, these programs allow prisoners to earn credits toward early release by participating in programs intended to help reintegrate them into society and reduce their propensity to reoffend.  Although they face some of the same political resistance as front-end sentencing reductions, it is significantly easier to overcome.

These programs avoid many of the usual pitfalls that sentencing reform legislation encounters because they shift the narrative from one of retribution to redemption, from past wrong to future promise.  Instead of getting bogged down on issues like whom to punish and for how long, politicians are able to talk about what comes next.  Leaving the nominal sentence unchanged insulates these reforms from charges that they don’t adequately reflect the egregiousness of a given crime or that they will negatively impact deterrence.  Public safety and prison budgets are both improved as prisoners are given the tools to leave prison and never return.

Reentry programs also represent a more targeted approach to early release that is eminently easier to defend. This further moves the debate to more favorable terrain by limiting discussion only to those prisoners who have taken the initiative and successfully completed programs to reduce their risk of reoffending. Instead of having to defend the early release of all offenders, including those who may be unrepentant or otherwise incorrigible, proponents need only support those who have actively taken steps to better reintegrate themselves into society....

With opportunities for movement on criminal justice reform likely few and far between under this administration, reformers need to pick their fights more wisely. Demanding upfront sentencing reductions may feel righteous, but in the face of our current political intransigence it will likely do little to help those serving unnecessarily long sentences. Such energies are better spent working to expand the use of incentivized early release and ensure that it actually results in the conclusion of a sentence in legislation such as Rep. Doug Collins' (R-Ga.) Prison Reform and Redemption Act.

While there is much more that can and should be done on sentencing reform, for now at least, Congress should focus on progress that might actually garner a presidential signature.

April 6, 2018 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

Tuesday, April 03, 2018

After plea to lying to special counsel, attorney gets 30 days (within-guideline) federal sentence

As reported here via Politico, "Special counsel Robert Mueller obtained the first sentence in his high-profile investigation Tuesday, as a Dutch attorney who admitted to lying to investigators was ordered into federal custody for 30 days." Here is more with an emphasis on sentencing details:

Former Skadden Arps lawyer Alex van der Zwaan, 33, pleaded guilty in February to lying to FBI agents about his contacts with former Trump campaign official Rick Gates and Konstantin Kilimnik, a suspected Russian intelligence operative who worked closely with Gates and former Trump campaign chairman Paul Manafort.

Attorneys for van der Zwaan pleaded with U.S. District Court Judge Amy Berman Jackson to forgo any prison time, give him a fine and let him return to his London home by August, when his wife is due to give birth. However, the judge said some time in jail was appropriate given van der Zwaan's offense and the fact that he is a lawyer.

“We're not talking about a traffic ticket,” she said. “This was lying to a federal officer in the course of a criminal investigation...This was more than a mistake. This was more than a lapse or a misguided moment."

In addition to the 30-day sentence, Jackson also imposed a $20,000 fine and two months of probation, but she said she would permit van der Zwaan to reclaim his passport and leave the country as soon as his month in custody is completed. It's not immediately clear where or in what type of facility he will serve the 30 days....

Van der Zwaan's defense asked that he be permitted to serve at a Bureau of Prisons center in Allenwood, Pennsylvania. The judge said Tuesday that she would recommend that, but federal policies usually dictate that a sentence of less than six months be served at a halfway house or at the D.C. jail.

One of van der Zwaan's defense attorneys, William Schwartz, argued that leniency was appropriate given the impact of the episode on the Dutch lawyer's family and on his legal career.  He is likely to lose his license as a solicitor in the United Kingdom, Schwartz said.

But Jackson was largely unmoved by those arguments, noting that van der Zwaan came from an upbringing of privilege and lacked any hardship that could have mitigated his actions. Van der Zwaan is married to the daughter of a Ukrainian-Russian energy mogul, German Khan, whom Forbes ranks 138th on its list of billionaires, with a net worth of $9.3 billion.

"This glass was dropped on a very thick carpet, which has cushioned him," the judge said of the defendant. She credited him for supporting himself and his wife in recent years, although she noted that van der Zwaan's father-in-law has provided funds to the couple since the attorney was fired from his job....

The fact that prosecutors are not requiring future cooperation from van der Zwaan suggests that they don't see him as a crucial player in the Trump-Russia saga. Prosecutor Andrew Weissmann said the defendant's reason for lying remains murky. "To be candid, we don't know what was motivating the defendant," Weissmann said. "We count on people to tell us the truth. We count on people to turn over documents that are responsive."

Defense attorneys said he lied to Mueller's team because he feared being fired if Skadden found out he had recorded work-related conversations without permission, including at least one with former Obama White House Counsel Greg Craig, a Skadden partner who oversaw the Tymoshenko report. Van der Zwaan was ultimately fired by the firm late last year, after his inaccurate statements to the Mueller team.

Weissmann said that concern about the consequences at Skadden could have been part of the explanation, but there was "reason to doubt that is simply the sole motive." Mueller's team offered no specific recommendation to Jackson on an appropriate sentence in the case. Weissmann said that was the special counsel office's policy, which he also followed as a federal prosecutor in Brooklyn.

Van der Zwaan spoke to the court only briefly during the sentencing hearing at the federal courthouse near Capitol Hill. "Your honor, what I did was wrong and I apologize to the court for my conduct," he said. He also apologized to his family for his actions.

Later in the hearing, Jackson said she did not detect great remorse. "The expressions of remorse, even those made on his behalf, were somewhat muted to say the least," the judge declared shortly before she imposed the sentence.

Jackson also rebuffed Schwartz's argument that van der Zwaan's freedom was curtailed in recent months as he spent his days at a "residential hotel" awaiting legal proceedings. "I'm not really moved by the complaint that he is in his hotel room with nothing to do," the judge said, saying he was not in custody and could have been doing community service to keep busy.

"This glass was dropped on a very thick carpet" is a quote I am going to have to remember.  And though not mentioned in this article, I am pretty sure the calculated guideline range in this matter was 0 to 6 months, so perhaps we ought also remember that the first sentence imposed in this matter emerging from the special counsel was a within-guideline (and not-bottom-of-the-range) sentence.

April 3, 2018 in Booker in district courts, Celebrity sentencings, White-collar sentencing, Who Sentences? | Permalink | Comments (8)

Monday, April 02, 2018

"Racial Equity in Algorithmic Criminal Justice"

The title of this post is the title of this notable new paper now available via SSRN authored by Aziz Huq. Here is its abstract:

Algorithmic tools for predicting violence and criminality are increasingly used in policing, bail, and sentencing contexts.  Although some attention has been given to their procedural due process implications, how these instruments interact with the enduring and complex racial legacies of the criminal justice system is presently not well understood.

This Article analyzes the questions of racial equity raised by these new predictive instruments using two lenses: constitutional doctrine and emerging technical standards of “algorithmic fairness.”  I demonstrate that constitutional doctrine is poorly adapted to addressing the range of racial issues that potentially arise with algorithmic criminal justice.  Instead, I demonstrate that the difficult questions of racial equity in this domain are best framed and evaluated though certain, but not all, emerging technical standards of algorithmic fairness.

April 2, 2018 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

SCOTUS grants cert on yet another ACCA case(!) while Justice Sotomayor is in fine dissenting form on other criminal justice matters

Before taking another two week break from oral arguments, the US Supreme Court this morning issued this order list which included a cert grant on yet another case interpreting the application of the Armed Career Criminal Act. As it does so well, SCOTUSblog already has this case page for the new ACCA case providing this basic accounting:

Stokeling v. United States

Docket No. 17-5554 (opinion below from 11th Circuit)

Issue: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

Today's order list is also noteworthy for two lengthy dissents authored by Justice Sotomayor that together take up more than half of the entire order list.  The long one, which has Justice Ginsburg also on board, complains about the Court summarily reversing a Ninth Circuit ruling concerning a police officer's liability for shooting a suspect.  The shorter dissent has her complaining solo about the Court's denial of cert in a Florida capital case.  The closing substantive paragraph and footnote of this dissent struck me as blogworthy:

Therefore, the Florida Supreme Court has (again)[FN4] failed to address an important and substantial Eighth Amendment challenge to capital defendants’ sentences post-Hurst. Nothing in its pre-Hurst precedent, nor in its opinions in Truehill and Oliver, addresses or resolves these substantial Caldwell-based challenges.  This Court can and should intervene in the face of this troubling situation.

[FN4] “Toutes choses sont dites déjà; mais comme personne n’écoute, il faut toujours recommencer.” Gide, Le Traité du Narcisse 8 (1892), in Le Traité du Narcisse 104 (R. Robidoux ed. 1978) (“Everything has been said already; but as no one listens, we must always begin again”).

April 2, 2018 in Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Sunday, April 01, 2018

Is criminal justice reform really likely to be "a winning issue in 2018"?

The question in the title of this post is prompted by this recent Salon article headlined "Beyond 'law and order': Criminal justice reform looks like a winning issue in 2018: Voters don’t want Trump-style demagoguery about crime. They’re ready for real work to reduce mass incarceration." Here are excerpts:

During his speech at the 2016 Republican National Convention, Donald Trump painted a terrifying picture of the United States as a crime-ridden wasteland where people cower in fear in their homes, declaring, "I am the law-and-order candidate."...  Despite this, criminal justice reform activists and experts believe that a more positive message on crime and law enforcement is a winner: We can lower incarceration rates in the U.S. without sacrificing public safety.

Inimai Chettiar, director of the Brennan Center's Justice Program, told Salon that she sees an "awakening of America to the problem of mass incarceration."  She believes there's an "increasing consensus that we do need to reduce our prison population" and that the tough-on-crime posturing from Trump or Attorney General Jeff Sessions is "out of step with this current consensus."...

A 2017 poll from the Charles Koch Institute "reveals that 81 percent of Trump voters consider criminal justice reform important," the report explains.  "Another, from Republican pollster Robert Blizzard, finds that 87 percent of Americans agree that nonviolent offenders should be sanctioned with alternatives to incarceration.  And according to a 2017 ACLU poll, 71 percent of Americans support reducing the prison population — including 50 percent of Trump voters."

The [new Brennan Center] report outlines a number of critical policies lawmakers can enact to reduce prison rates, such as passing sentencing reform laws, decriminalizing marijuana and diverting people to mental health services instead of jail.  Importantly, the report focuses on federal, state and local policy ideas.  Most people are incarcerated in state and local facilities, and the only way to truly reduce the prison population is for reform efforts to be focused on every level of government.

This is no doubt why there's been increased attention to the role local prosecutors play in creating the mass incarceration problem — and the role they can play in fixing it. There's been significant media coverage, for instance, of Larry Krasner, Philadelphia's new district attorney, who was elected after promising significant reforms to the prosecutor's office aimed at reducing incarceration rates.  Now Krasner is making good on those promises, fighting the railroading of defendants and encouraging his attorneys not to seek maximum penalties for nonviolent or low-level offenses.

This is in direct contrast with how most prosecutors do things, Chettiar said, noting that "prosecutors are officially and unofficially rewarded . . . based on conviction rates, length of sentences and how zealously they enforce and punish defendants," a situation that developed in direct reaction to the "tough on crime" frenzy of the '80s and '90s.

While the Brennan Center report has some ideas for prosecutors and mentions the election of Krasner — as well as progressive prosecutors in Chicago, Dallas, Denver, Tampa and St. Louis — Chettiar cautioned that it's not enough to elect prosecutors who run on reform platforms.  “I worry that the election of these progressive prosecutors could potentially distract from the obligation of state legislators and congress and governors to act to change laws," she said.  “It is equally important, if not more so, that our criminal laws and sentencing laws are changed." 

April 1, 2018 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (10)

"The Intersection between Young Adult Sentencing and Mass Incarceration"

The title of this post is the title of this notable new article authored by Josh Gupta-Kagan available on SSRN. Here is its abstract:

This Article connects two growing categories of academic literature and policy reform: arguments for treating young adults in the criminal justice system more leniently than older adults because of evidence showing brain development and maturation continue until the mid-twenties; and arguments calling for reducing mass incarceration and identifying various mechanisms to do so. These categories overlap, but research has not previously built in depth connections between the two.

Connecting the two bodies of literature helps identify and strengthen arguments for reform. First, changing charging, detention, and sentencing practices for young adults is one important tool to reduce mass incarceration. Young adults commit a disproportionate number of crimes. Because so many offenders are young adults, treating young adults less severely could have significant impacts on the number of individuals incarcerated.

Second, focusing on young adults responds to retributive arguments in defense of existing sentencing policies, especially for violent offenses. The mass incarceration literature shows that sentences for violent offenses explain much, if not most, of recent decades’ prison growth. Young adult violent offenders deserve punishment, but their youth mitigates their culpability and thus offers a response to retributive calls for long sentences.

Third, considering mass incarceration can add both urgency and new ideas to the growing debate about reforming sentencing of young adults. Such reforms have thus far been tentative, following well-grounded desires to test different alternative interventions for young adults. The mass incarceration literature adds an important consideration – the status quo demands prompt and far-reaching reform – and new ideas, such as prosecutorial charging guidelines that encompass defendants’ age.

April 1, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Saturday, March 31, 2018

Prez Trump declares April 2018 to be "Second Chance Month"

As reported in this official White House statement, President Donald Trump yesterday proclaimed April 2018 as "Second Chance Month." Here is the heart of the statement with a few lines stressed here that will become the basis for some commentary in a future post:

During Second Chance Month, our Nation emphasizes the need to prevent crime on our streets, to respect the rule of law by prosecuting individuals who break the law, and to provide opportunities for people with criminal records to earn an honest second chance. Affording those who have been held accountable for their crimes an opportunity to become contributing members of society is a critical element of criminal justice that can reduce our crime rates and prison populations, decrease burdens to the American taxpayer, and make America safer.

According to the Bureau of Justice Statistics, each year, approximately 650,000 individuals complete prison sentences and rejoin society. Unfortunately, two-thirds of these individuals are re-arrested within 3 years of their release.  We must do more ‑‑ and use all the tools at our disposal ‑‑ to break this vicious cycle of crime and diminish the rate of recidivism.

For the millions of American citizens with criminal records, the keys to successful re-entry are becoming employable and securing employment. Beyond the income earned from a steady paycheck, gainful employment teaches responsibility and commitment and affirms human dignity. As a Nation, we are stronger when more individuals have stable jobs that allow them to provide for both themselves and their loved ones.

I am committed to advancing reform efforts to prevent crime, improve reentry, and reduce recidivism. I expressed this commitment in my 2018 State of the Union Address and reinforced it by signing an Executive Order to reinvigorate the “Federal Interagency Council on Crime Prevention and Improving Reentry.”  In the spirit of these efforts, I call on Federal, State, and local prison systems to implement evidence-based programs that will provide prisoners with the skills and preparation they need to succeed in society. This includes programs focused on mentorship and treatment for drug addiction and mental health issues, in addition to job training.

This month, we celebrate those who have exited the prison system and successfully reentered society.  We encourage expanded opportunities for those who have worked to overcome bad decisions earlier in life and emphasize our belief in second chances for all who are willing to work hard to turn their lives around.

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2018 as Second Chance Month.  I call on all Americans to commemorate this month with events and activities that raise public awareness about preventing crime and providing those who have completed their sentences an opportunity for an honest second chance.

A few prior recent related posts:

March 31, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Friday, March 30, 2018

US District Judge concludes Miller applies to 18-year-old murderer to find his mandatory LWOP sentence violates the Eighth Amendment

I just saw this fascinating federal ruling handed down yesterday by US District Judge Janet C. Hall, the Chief Judge of the US District Court for the District of Connecticut, in Cruz v. US, No. 11-CV-787 (D. Conn. March 29, 2018) (available here). The ruling runs 50+ pages, so I will need to read it carefully before opining about it at length. But these excerpts from the start art end of the opinion should reveal why it is worth attention:

Cruz turned 18 on December 25, 1993. On May 14, 1994, when Cruz was 18 years and 20 weeks old, Cruz and another member of the Latin Kings, Alexis Antuna, were given a mission by gang leader Richard Morales. See United States v. Diaz, 176 F.3d 52, 84 (2d Cir. 1999). The mission was to kill Arosmo “Rara” Diaz. See id. Carrying out that mission, Cruz and Antuna shot and killed Diaz and his friend, Tyler White, who happened to be with Diaz at the time. See id. Cruz testified at the hearing before this court that he now admits to committing both murders. See Cruz Tr. at 27. He further testified that Antuna informed him at the time that the leaders of the Latin Kings were debating what would happen to him as a result of his attempt to leave the gang. See id. at 19. According to his testimony, Cruz believed that, if he did not carry out the mission, he himself would be killed. See id....

[W]hen the Roper Court drew the line at age 18 in 2005, the Court did not have before it the record of scientific evidence about late adolescence that is now before this court.

Thus, relying on both the scientific evidence and the societal evidence of national consensus, the court concludes that the hallmark characteristics of juveniles that make them less culpable also apply to 18-year-olds.  As such, the penological rationales for imposing mandatory life imprisonment without the possibility of parole cannot be used as justification when applied to an 18-year-old.

The court therefore holds that Miller applies to 18-year-olds and thus that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole” for offenders who were 18 years old at the time of their crimes.  See Miller, 567 U.S. at 479.  As applied to 18-year-olds as well as to juveniles, “[b]y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” See id.  As with Miller, this Ruling does not foreclose a court’s ability to sentence an 18-year-old to life imprisonment without parole, but requires the sentencer to take into account how adolescents, including late adolescents, “are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” See id. at 480.

I think it a near certainty that the feds will appeal this consequential ruling to the Second Circuit and it will be interesting to watch how that court approaches this issue. And, in all likelihood, whatever the outcome in the Second Circuit, a cert petition would follow. So, stay tuned.

March 30, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Thursday, March 29, 2018

Some more perspective on the crime-and-punishment thinking of AG Jeff Sessions

UntitledTime magazine has this new lengthy cover story on Attorney General Jeff Sessions. The whole piece is an interesting read, and here are some excerpts sentencing fans are likely to find of interest:

Sessions believes today’s low crime rates are a direct result of “proactive policing” and harsh sentences, and that dialing them back is causing crime to rise.  According to the FBI, the violent crime rate rose 7% between 2014 and 2016, and the murder rate rose 20%, following years of decline.

Sessions has moved swiftly to unwind the Obama Justice Department’s policies.  He canceled the “smart on crime” initiative and replaced it with a directive to pursue maximal charging and sentencing.  He pulled out of the consent decrees and rescinded Holder’s hands-off marijuana-enforcement policy.  He announced the end of DACA, stepped up deportation orders and sued California over sanctuary cities. 

He has embraced Trump’s call to impose the death penalty on some drug dealers, which some legal scholars consider unconstitutional.  Emphasizing treatment for drug addicts isn’t just ineffective, according to Sessions -- it’s dangerous. “The extraordinary surge in addiction and drug death is a product of a popular misunderstanding of the dangers of drugs,” he told me. “Because all too often, all we get in the media is how anybody who’s against drugs is goofy, and we just ought to chill out.”

In February, Sessions sent a letter warning the Senate that a bill to reduce federal sentences risked “putting the very worst criminals back into our communities.” (An outraged Chuck Grassley, the Republican Senator from Iowa, told reporters that if Sessions wanted to keep making laws, he should go back to elected office.)  Sessions believes his erstwhile colleagues have been misled. “This whole mentality that there’s another solution other than incarceration,” he told me, “all I will say to you is, people today don’t know that every one of these things has been tried over the last 40 years.”

Sessions seemed exasperated when I asked him to address the disproportionate impact of harsh policing and incarceration on black families and communities.  He cited the work of Heather Mac Donald, the controversial conservative scholar who argues that racial bias in the criminal-justice system is a myth and that the real problem is a “war on cops.”  Mac Donald popularized the concept of the “Ferguson effect,” an unproven theory that crime rises when police feel hamstrung by political oversight. Sessions embraces this notion.  In cities like Baltimore and Chicago, he told me, politicians “spend all that time attacking the police department instead of the criminals.”...

Sessions contends that the policies he champions help minority communities by cleaning up their neighborhoods.  “If you do the map of your city and you’ve got five times the murders in a minority neighborhood, do you just go away?” he asked me, eyes narrowed.  “Or do you prosecute the criminals who are committing the murders?  That’s the fundamental answer.  And the other thing is, you think the mothers who’ve got children, the older people who are afraid to walk to the grocery store -- shouldn’t they be free just like they are in the elite part of town?”

Sessions leaned over the plastic airplane table.  “Whose side are you on?” he asked. “I’m on the victims’ side, and overwhelmingly the victims are minorities.  The prosecution of certain minorities for murder, the victim is overwhelmingly another African American or Hispanic.  It occurs within their own communities.” (Law-enforcement statistics show white criminals also tend to target white victims.)

His eyes gleamed as he sat back. “We are protecting minority citizens,” he concluded. “The fundamental question is, Who rules the streets? The government, or the outlaws?”

March 29, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (9)

Judge Jed Rakoff sentences rapper DMX to one year in federal prison for tax fraud

US District Court Judge Jed Rakoff has long been a vocal advocate against mass incarceration and other problems he seeing is the operation of the federal criminal justice system. But that view did not preclude him from thinking he needed to send a notable white-collar criminal to federal prison yesterday as reported in this local article (which provides a nice short review of the parties' sentencing arguments):

Embattled rapper DMX was sentenced Wednesday to one year in prison for tax fraud — but insisted he wasn’t “like a criminal in a comic book” trying to scheme against the government.  DMX, real name Earl Simmons, admitted in November to evading $1.7 million in taxes. He was also given three years of supervised release.

The 47-year-old performer, whose top songs include “Party Up (Up in Here),” stood accused of hiding money from the IRS from 2010 to 2016 — largely by maintaining a “cash lifestyle.” “I knew that taxes needed to be paid,” Simmons said shortly before Manhattan Federal Judge Jed Rakoff handed down his sentence. “I hired people but I didn’t follow up. I guess I really didn’t put too much concern into it.

“I never went to the level of tax evasion where I’d sit down and plot . . . like a criminal in a comic book,” said Simmons, who grew teary at points during the proceeding.

Prosecutors had pushed for Rakoff to hit Simmons with a sentence ranging from four years and nine months up to five years in prison. In their sentencing papers, prosecutors urged Rakoff to "use this sentencing to send the message to this defendant and others that star power does not entitle someone to a free pass, and individuals cannot shirk the duty to pay their fair share of taxes."

Simmons' lawyers, Murray and Stacey Richman, asked Rakoff for a sentence of in-patient rehab. With treatment — and strict supervision — Simmons could keep performing, allowing him to repay his whopping tax debt, they insisted. They also floated the idea Rakoff could appoint a trustee who would oversee Simmons' business dealings — making sure the tax man got paid. They maintained that Simmons' traumatic and impoverished upbringing led him astray as an adult, including toward addiction and bad financial decisions — but that he has a talent to "make beauty out of ugliness."

The Richmans played the music video for Simmons' 1998 song "Slippin'", claiming lyrics such as "If I'm strong enough I'll live long enough to see my kids/Doing something more constructive with their time than bids" indicate his search for redemption through art. "He is the American dream, and sometimes the American dream takes you to court," Stacey Richman said. "He has been able to raise himself from the ghetto."

Rakoff sympathized with Simmons, saying he was another example of how "the sins of the parents are visited upon their children" — but felt prison was necessary to deter would-be tax fraudsters....

Other performers have done time for tax raps.

Former Fugees singer Lauryn Hill got a three-month sentence in federal lockup for not paying taxes on $1.5 million in income from 2005 to 2007.

Fat Joe, whose legal name is Joseph Antonio Cartagena, got four months in federal prison after he didn't file tax returns on more than $3 million in income.

Ja Rule, who is legally named Jeffrey Atkins, received a 28-month sentence for not filing tax returns that ran concurrently with a two-year weapons sentence, according to reports.

March 29, 2018 in Booker in district courts, Celebrity sentencings, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, March 28, 2018

"What If Prosecutors Wanted to Keep People Out of Prison?"

The question in the title of this post is the headline of this lengthy New York Magazine article, which is primarily focused on Scott Colom, a 35-year-old district attorney in northeast Mississippi.  But the article also covers how Colom is part of a new focus on prosecutors within efforts to reform criminal justice systems.  Here are excerpts from a long article:

By mid-October, with the [2016] election a few weeks away, Colom knew he was gaining traction. Then a colleague sent him a text message complimenting his new TV commercial. “I was like, What are you talking about?” Television hadn’t fit into his budget. Later in the week, his aunt managed to record the ad on her DVR, and he watched it at her house. A voice at the end said it was paid for by a group called Mississippi Safety & Justice.

He looked it up online and discovered it was a PAC funded by liberal hedge-fund billionaire George Soros, who lives in Westchester County, New York. Bemused, Colom sought advice from consultants in Washington, D.C., who’d been helping him with marketing. They advised Colom to post photos and videos on his website for the PAC to borrow for future ads but warned him not to reach out to the group. Campaign-finance laws forbid direct contact between candidates and independent funders. Colom followed the advice, then went back to knocking on doors....

In the end, Mississippi Safety & Justice had spent $716,000 on the election, dwarfing both the $49,000 Allgood had raised and the $150,000 Colom collected himself. Allgood groused that the money had created an uneven playing field, and Colom himself is defensive about it, even now. But whatever the donation’s impact on the race, it put Colom at the center of a national experiment to remake the criminal-justice system.

For almost three decades, Soros has been quietly funding efforts to end the drug war and reduce the inmate population. Throughout the ’90s and 2000s, he was behind almost every state ballot initiative to legalize marijuana and has given millions in grants for liberal legal scholarship. It was Colom’s luck that in 2015 he’d adopted a new strategy: backing progressives in local elections, specifically DAs, who every day make decisions about whom to charge, with how serious of a crime; whether to engage in plea negotiations; how much prison time, if any, to recommend. In other words, unlike legislators, government lawyers have the power to push down incarceration rates with the stroke of a pen, or a word to a judge. Colom was one of his first test cases....

By the end of his first year in office, Colom had doubled, to 218, the number of defendants in the alternative sentencing program, where if you stay clean and get a job or go to school your charges will eventually be cleared. The scope of the program’s services has expanded too; the administrator, a former social worker, helps participants get into rehab, GED programs, and vocational training, and even arranges rides when necessary, since the area has no bus system.

While alternative sentencing isn’t revolutionary — there are similar programs across the country — it’s a scale model of what Colom has in mind when he dreams of a system built on different incentives. “What we’ve got to do is deal with the addiction that causes people to use drugs,” he says, musing that maybe prisons should be scored on how effectively they rehabilitate people, the way public schools are scored on student achievement. More immediately, Colom is strategizing with Tucker Carrington, a law professor who runs the University of Mississippi’s innocence project, to establish a conviction-review unit, as DAs in Brooklyn, Chicago, Dallas, and other metropolises have done.

March 28, 2018 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Latest update on battles over criminal justice reform inside the Trump Administration

The New York Times has this lengthy new article under the headline "Sessions and Kushner Square Off, and Prisoners Hang in the Balance." It covers ground that will largely be familiar to regular readers, and here are a few excerpts:

In the final months of the Obama administration, the Justice Department announced a new approach to preparing prisoners for life beyond their cells. Officials created a prison school system, pledged money for technology training and promised to help prevent former inmates from returning to prison.

Almost immediately after taking office, Trump administration officials began undoing their work. Budgets were slashed, the school system was scrapped and studies were shelved as Attorney General Jeff Sessions brought to bear his tough-on-crime philosophy and deep skepticism of Obama-era crime-fighting policies.

Now, nearly a year and a half later, the White House has declared that reducing recidivism and improving prisoner education is a top priority — echoing some of the very policies it helped dismantle.

This whiplash approach to federal prison policy reflects the tension between Jared Kushner, the president’s reform-minded son-in-law and senior adviser, and Mr. Sessions, a hard-liner whose views on criminal justice were forged at the height of the drug war. It has left both Democratic and Republican lawmakers confused and has contributed to skepticism that the Trump administration is serious about its own proposals....

Mr. Kushner, administration officials say, supports such sweeping change. Mr. Sessions is adamantly opposed. The two men reached a compromise in recent months: Mr. Kushner could push for the prison changes, but Mr. Sessions would position the administration strongly against a broader overhaul.

“I do believe that Jared Kushner is earnest in his desire for criminal justice reform,” said Inimai M. Chettiar, of the liberal-leaning Brennan Center for Justice. “But Jeff Sessions is still stuck in 1980. He hasn’t moved along with everyone else, including top prosecutors and police chiefs, who realize that tough-on-crime doesn’t work.” Ms. Chettiar said she was not convinced that Mr. Kushner’s support was enough to get the administration behind real change — even in the narrow area of prisons.

The Justice Department said Mr. Sessions fully supported the White House principles and was committed to helping inmates develop the skills needed to return to society. But Mr. Sessions is not rushing to promote those efforts: Over two weeks, the Justice Department refused to make anyone available to discuss them and would not identify which prison education programs have been cut and which remain.  “They’re not going to talk to you about this,” said Joe Rojas, a teacher at the federal prison complex in Coleman, Fla.  He said the Justice Department could not answer those questions without acknowledging that the Trump administration had cut more than 6,000 prison jobs. Staffing is so short that teachers around the country are regularly reassigned to cover routine guard duties, he said.

One of the White House priorities is to offer incentives to encourage inmates to enroll in programs to prepare them for life outside prison.  Mr. Rojas and others are quick to note that incentives are not the problem: Educational programs are so popular that more than 15,000 federal inmates are on waiting lists for high school equivalency diploma and literacy programs, according to a 2016 Justice Department report. “It sounds pretty on paper,” said Mr. Rojas, who is the president of his American Federation of Government Employees union local. “But when you cut staff, you can’t do anything.”

Mr. Grassley said that he while appreciated Mr. Kushner’s desire to get something done, he did not support any effort to try to address prisons without fixing what he saw as fundamental unfairness in sentencing laws. And he believes Mr. Kushner shares his views.  “But he sees a chance of getting half a loaf, and he’s willing to settle for a half a loaf,” Mr. Grassley said. “I’m not going to.”

The White House argues that Mr. Grassley’s argument is moot because the Senate majority leader, Mitch McConnell of Kentucky, will not allow a vote on a broad criminal justice bill that divides Republicans. Mr. Grassley sees that as an excuse.  “If the president would start tweeting about it every other day like he tweets about everything else, McConnell would come along,” he said.

Mr. Kushner believes that the White House can forge consensus around prison reform. He wants the federal government to look to states for proven ideas to reduce recidivism. The White House recently hired Brooke Rollins, a conservative lawyer who advocated such changes in Texas, a state that is often held up by both conservatives and liberals as a leader in reducing recidivism.

Amy Lopez, a former teacher in the Texas prison system, agreed that the federal government could learn from states. More data exists than ever before, she said, and it shows that education reduces the chance that a former inmate will be arrested again.

The Justice Department hired Ms. Lopez in 2016 to replace the patchwork prison education system with a centralized school district that offered diplomas, technology training and vocational education. “It was interesting to have this focus at the federal level on education,” she said. “That was new.”

Within months, she was fired, the school system axed. She took a job overseeing education in Washington’s city corrections system. Trump administration officials say that, as part of the new focus on prisons, if the school idea turns out to have been a good one, they can always reconsider it.

March 28, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (1)

Tuesday, March 27, 2018

SCOTUS day for considering rules for prison sentence modification based on changed guidelines

The US Supreme Court this morning hears oral argument in two cases involving application of 18 U.S.C. §3582(c)(2), which allows a federal judge to modify a federal prison term for a "defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission."  Here are links to the SCOTUSblog case pages and previews for both cases (the second preview I authored):

Hughes v. United States

Koons v. United States

Hundreds, perhaps thousands, of current federal prisoners might have their sentences directly impacted by these cases. Table 8 of the US Sentencing Commission's latest report on retroactive application of the reduction of the drug guidelines suggests that over 750 defendants may have been denied a reduced sentence based on the issue to be considered in Hughes and that nearly 3000 defendants may have been denied a reduced sentence based on the issue to be considered in Koons.  And, as always with criminal justice cases these days, I am especially interested to see if and how the new guy, Justice Gorsuch, approaches and frame the issue under consideration. 

March 27, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, March 26, 2018

Ohio Gov. Kasich commutes yet another death sentence

As reported in this FoxNews piece, the Governor of Ohio commuted yet another death sentence today.  Here are some details explaining why (with an emphasis on a final fact in the article):

Ohio Gov. John Kasich Monday spared a condemned killer who was set to die April 11 for fatally shooting a woman more than three decades ago during a robbery after questions were raised about discrepancies in the case and the fairness of the trial.

The Republican governor's release said his decision followed the report and recommendation of the Ohio Parole Board, which voted 6-4 on March 16 in favor of clemency for death row inmate William Montgomery. Kasich had no additional comment, his spokesman Jon Keeling said.

Montgomery was sentenced to die for the 1986 shooting of Debra Ogle during a robbery in the Toledo area. In its ruling, the parole board concluded that commuting Montgomery's sentence to life without the possibility of parole was warranted, which is what Kasich did....

The board majority noted that two jurors said after the trial they had difficulty understanding the law, and one juror was permitted to remain on the jury despite exhibiting "troubling behavior and verbalizations" that raised questions over fitness. The majority also cited concerns that a police report in which witnesses said they saw Ogle alive four days after Montgomery is alleged to have killed her was never presented to the defense.

A federal judge and a panel of the 6th U.S. Circuit Court of Appeals ruled Montgomery deserved a new trial based in part on the missing report. But the full 6th Circuit rejected that argument. The witnesses later said they mistook Ogle's sister for the missing woman.

"The failure to disclose that report coupled with the issues described above relative to Montgomery's jurors raise a substantial question as to whether Montgomery's death sentence was imposed through the kind of just and credible process that a punishment of this magnitude requires," the parole board said on March 16....

Since taking office, Kasich has allowed 13 executions to proceed and has now spared six inmates.

The 21-page Ohio Parole Board recommendation for clemency is available at this link.

This capital commutation, as noted in the article, is the sixth granted by Gov Kasich.  That now exceeds the number of capital commutations by his predecessor, Ted Strickland, though Gov Strickland's did five capital clemency grants in a single term while Gov Kasich has needed two terms to get best Strickland's number.  And I believe Ohio Gov Richard Celeste still hold the state's modern record as he commuted eight death sentences as he was leaving office in 1991.

March 26, 2018 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

High-profile New Jersey case highlights many challenges of sentencing drunk drivers who kill (and appellate review of sentences)

1360879220_amy-locane-bovenizer-lgThis local article, headlined "Former 'Melrose Place' actress to be re-sentenced -- again -- in fatal drunken crash," reports on yet another notable sentencing opinion from a high-profile state sentencing case. Here are the basics from the article, with the full opinion and follow-up thereafter:

Former "Melrose Place" actress Amy Locane who was convicted of killing a 60-year-old woman in a drunken 2010 crash will be re-sentenced -- for the second time. An appellate court ruling issued Friday lambasts the judge's lenient three-year sentence for Locane, calling it "striking."

"We expect our colleagues will agree that the sentence in this case, a hair's breath away from illegal, shocks the conscience," the appellate ruling states.

In August 2016, the state's Appellate Division ruled that the leniency granted by state Superior Court Judge Robert B. Reed in sentencing Locane in the Montgomery Township crash that killed Helene Seeman lacked enough explanation. Locane returned to court for resentencing on Jan. 17, 2017. Reed did not give her any additional jail time, angering the victim's family and leaving prosecutors bewildered.

It appears a three-judge appellate court panel is just as confused. "(Locane) went unpunished for the injuries inflicted upon Seeman, despite the fact she could have easily made alternative arrangements the night of the accident and could have easily avoided driving, was extremely intoxicated, and was engaging in risky maneuvers before the crash," the appellate ruling states. "That is an error we cannot correct."

Locane, who was driving with a blood-alcohol level three times the legal limit during the June 27, 2010, crash, was cleared of the manslaughter charge but found guilty of vehicular homicide and assault by auto.

Locane faced up to 15 years in prison. Reed imposed a sentence that was about a fifth of what she faced under the maximum penalty. He cited the former actress' two small children, including one with Crohn's disease, as a reason for the lenient sentence. Locane was out of prison in two-and-a-half years.

In a sit-down interview with NJ Advance Media in November, Locane said she hadn't touched alcohol since the crash. "I know Judge Reed went out on the limb for me and I'm not going to let him down," she said. "When someone sees the good in you like that and gives you a second chance, you don't want to disappoint them."

But Locane's fate this time around won't be up to Reed. "We are thus compelled to remand this matter for re-sentencing before a different judge," the appellate ruling says.

Locane's attorney, James Wronko, said the comments made by the appellate division about Reed "were simply unwarranted."

"Judge Reed is an excellent judge," he said. "We intend to file with the New Jersey Supreme Court to have them review the matter and then we'll proceed from there." Ironically, Wronko said, Locane was in Steinert High School in Hamilton speaking to students about the dangers of drinking and driving as the appellate court issued its ruling Friday morning.

Hard-core sentencing fans should take some time to check out the full opinion of the New Jersey Superior Court Appellate Division in NJ v. Locane, which runs 43 pages and is available at this link. Though a bit dense with Jersey-specific cites, this Locane opinion remarkably covers in various ways so many intricate issues of modern sentencing policy and practice.

Most fundamentally, this case highlights the challenging balance between offense and offender factors in sentencing, as the appellate court is concluding the trial court wrongfully downgraded the severity of the offense by being unduly moved my the defendant's remorse and rehabilitation. But is also, obviously, raises issue about the discretion of sentencing courts and review of that discretion on appeal. In addition, Sixth Amendment and double jeopardy issues arise in the Locane opinion. So too does the role of concurrent and consecutive sentencing, as well as punishment theory as it relates to sentencing drunk drivers (with a little hint to concerns about race, gender and class).  And the opinion's final paragraph highlights still other matters the opinion engages:

In the beginning of this opinion, we referred to the statements made by the victims during the State's presentation, pursuant to the Crime Victim's Bill of Rights, N.J.S.A. 52:4B36[n]. Their comments dovetailed the sentencing goals embodied in the Code, which in this case were not met. In Liepe, the defendant was sentenced to, in real time, life. In this case, defendant was sentenced to a NERA term of three years. The lack of uniformity is striking and in derogation of the Code.

Put slightly differently, anyone teaching a sentencing class might readily build a number of real interesting exam questions around this case and opinion.

March 26, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Friday, March 23, 2018

New spending bill includes a lot more money for Justice Department to fight drug war even harder

A helpful reader made sure that I did not miss the important criminal justice story within this week's budget drama.  Specifically, the new spending bill signed today, as detailed here, includes lots more money for the Department of Justice to hire a lot more agents and prosecutors to, presumably, bring a lot more federal drug cases:

TITLE II

DEPARTMENT OF JUSTICE

GENERAL ADMINISTRATION

SALARIES AND EXPENSES

This Act includes $114,000,000 for General Administration, Salaries and Expenses.

Opioid and heroin epidemic. -- The Act includes significant increases in law enforcement and grant resources for the Department of Justice (DOJ) to combat the rising threat to public health and safety from opioid, heroin and other drug trafficking and abuse. This includes a total of$446,500,000, an increase of $299,500,000 more than fiscal year 2017, in DOJ grant funding to help State and local communities respond to the opioid crisis.

Federal Law Enforcement and Prosecutors. -- The Act includes significant increases for DOJ Federal law enforcement and prosecution agencies which will help DOJ investigate and prosecute high priority cases, including those involving opioids, heroin, and other drug trafficking amongst other law enforcement priorities that were agreed upon by the Committees in this explanatory statement. The overall increase is $717,691,000 more than fiscal year 201 7 which includes: $101,750,000 for U.S. Attorneys; $62,452,000 for U.S. Marshals Service operations; $36,912,000 for the Drug Enforcement Administration (DEA) diversion control program and $87,350,000 for DEA operations; $25,850,000 for the Organized Crime and Drug Enforcement Task Forces; $263,001,000 for Federal Bureau oflnvestigation (FBI) operations; $35,176,000 for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); and $105,200,000 for the Bureau of Prisons (BOP) operations.

My sense is that these "significant increases" in resources for federal agents and prosecutors could and likely will impact the federal prison population a lot more than any number of higher-profile developments like a memo encouraging pursuit of the death penalty or changes in marijuana policies. one can never repeat the mantra too much: "Follow the money."

March 23, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (5)