Monday, May 11, 2015

Notable Ohio county prosecutor calls pot prohibition a "disastrous waste of public funds"

Images (9)As reported in this Cincinnati Enquirer article, headlined "Prosecutor Deters OK with legalizing pot," a high-profile prosecutor in Ohio is now publicly getting involved with efforts to reform the state's marijuana laws. Here are the details:

The campaign to legalize marijuana in Ohio found an unlikely friend Monday in Hamilton County Prosecutor Joe Deters.

Deters, a life-long Republican and law-and-order prosecutor, said he agreed to lead a task force on the potential impact of legalization in part because he's been unhappy for years with the state's marijuana laws. He said they waste taxpayer dollars and target people who typically are not much of a threat to society.

"I think they're outdated and ludicrous," Deters said of marijuana laws. "I don't use marijuana, but I know people who do use marijuana, and I'd rather deal with someone who smoked a joint than someone who drank a bottle of vodka any day of the week."

When asked if he favors legalization, Deters told The Enquirer: "I don't have any problem with it at all."

ResponsibleOhio, the group of wealthy investors campaigning for legalization, asked Deters to lead the task force. Deters said he's not being paid for his work on the task force and agreed to do it because he's interested in the issue and the potential impact on law enforcement.

He said finding an affordable and efficient way to test drivers who are suspected of being impaired by marijuana use is one of his concerns. "There is a public safety element to this," Deters said. His goal is to produce a report on the impact of legalization within a few months....

Deters said he doesn't buy the argument that prisons are filled with low-level drug offenders, but he does think the time and money devoted to marijuana enforcement could be better spent elsewhere. "It's been a disastrous waste of public funds," Deters said....

Deters said he's not taking a position on ResponsibleOhio's proposed business model, but he said it makes sense for the state to regulate and tax marijuana. "You can walk outside your building and buy marijuana in 10 minutes," Deters said. "The question is, do we want schools and local governments getting the money or the bad guys?"

He said it's also wise for the state to prepare for legalization, whether or not ResponsibleOhio succeeds, because voters seem more willing to support it and other states are adopting similar measures. "The days of 'reefer madness' are gone, because that's not the reality," Deters said, referring to the 1950s-era movies that vilified marijuana and those who used it.

He said he's reaching out now to academics, elected officials and law enforcement to participate in the task force.

I have long known and respected the work of Joe Deters, even though we have sometimes disagreed on various professional matters through our work on the Ohio Death Penalty Task Force and in other settings.  I had heard from various folks involved with the ResponsibleOhio campaign that they were seeking to have a prominent, knowledgeable person running a task force to examine these important marijuana reform topics, and I am especially pleased to see that Joe Deters is now officially and publicly at the helm.

Cross-posted at Marijuana Law, Policy and Reform

May 11, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Will and should famed abolitionist nun, Sister Helen Prejean, be allowed to testify at Boston bombing sentencing trial?

Images (4)The question in the title of this post is the interesting legal question to be resolved this week in federal court in Boston as the defense team finalizes its mitigation case on behalf of Boston Bomber Dzhokhar Tsarnaev.  This Boston Globe piece, headlined "Will judge allow nun to testify for Tsarnaev defense?," provides some context:  

While everybody in and around Boston is celebrating Mother’s Day and spring sunshine, George O’Toole has something weighing on him. O’Toole is a judge and has presided over the trial of convicted Boston Marathon bomber Dzhokhar Tsarnaev with his typical geniality. But even genial judges have to make tough decisions.

The trial, which began with jury selection in the first week of January, and testimony in the first week of March, is winding down. If all goes to plan, and it seldom does in trials, the jury could be sent away by the end of this week, ready to contemplate sentencing Tsarnaev to death or life in prison without the possibility of parole.

But before any of that happens, George O’Toole has to decide whether a 76-year-old Roman Catholic nun can testify as part of the effort to save a 21-year-old Islamic extremist from death. The nun in question is Helen Prejean, a Sister of St. Joseph, and if you ask what that means, you never had nuns.

Sister Helen Prejean is an icon of the antideath penalty movement, something of a celebrity. “Everybody knows Sister Helen,” said David Hoose, a Northampton defense attorney who has worked on death penalty cases. And it’s true, a lot of Americans do know her, at least vicariously. They know her as Susan Sarandon, the actress who won an Oscar for her portrayal of Sister Helen in the 1995 film “Dead Man Walking.”

Twenty years after Sister Helen became the face of the antideath penalty movement in America, she is here in Boston, poised, if O’Toole allows it, to be the last witness for the defense in the trial of Dzhokhar Tsarnaev.

No one saw this coming. As prominent as the New Orleans-based Sister Helen is in the antideath penalty movement, she is not known for testifying in death penalty cases. But she wanted to get involved in this case, somehow. Inevitably, she found herself in the defense camp....

[A]s someone who has counseled death row inmates, Sister Helen can impart [the] message ... that a death sentence hardly guarantees death.

Since 1988, when the federal government got back in the business of executing people, the government has sought the death penalty in nearly 500 cases. In 232 of those cases, there was a guilty verdict where jurors had to decide between life and death, and in 79 cases they chose death. Of those 79, only three have been executed. It’s possible that Dzhokhar Tsarnaev would be No. 4 if the jury sentences him to death, but the odds are against it.

In the meantime, Judge O’Toole has to decide on the government’s motion to exclude Sister Helen’s testimony. In death penalty cases, the defense is given a wide berth in calling witnesses as they present mitigating evidence.  Even if O’Toole is on the fence about the relevance of Sister Helen’s testimony, and is inclined to tightly limit the scope of what she can speak to, he might not want to risk a reversal of the whole trial over one final witness.

The defense may only want Sister Helen to repeat one of her stock lines: “People are more than the worst thing they have ever done in their lives.” That has been the underlying message of the defense all along. That Dzhokhar Tsarnaev, as a human being, is more than the unspeakable, unforgivable things he did one week in April 2013.

In this post at Crime & Consequences, Kent Scheidegger reasonably asks "What does Helen Prejean know that is relevant to the Tsarnaev case?".  I think Kent (and others in the comments) make sound points that could provide a legal justification for the district judge here precluding Prejean from being able to testify at the sentencing hearing on behalf of the Boston bomber.  But I also think, as the article above hints, judges are generally disinclined to preclude completely any offered defense testimony at the sentencing-phase of a capital trial.  I thus predict that the district judge here will allow Prejean to testify in some limited way if the defense presses aggressively for her to be a witness.

A few prior related posts:

UPDATE: Apparently Prejean started to testify not long after I wrote this post. This new USA Today article, headlined "Sister Helen Prejean: Tsarnaev 'genuinely sorry for what he did'," starts with this account of what transpired:

Sister Helen Prejean, the Catholic nun and anti-death penalty activist whose story came to fame with the 1995 film Dead Man Walking, took the stand on Monday in the penalty phase of convicted Boston Marathon bomber Dzhokhar Tsarnaev's trial. She said he is "genuinely sorry for what he did," and told her how he felt about the suffering he caused to the bombing's victims.

"He said it emphatically," Prejean said. "He said no one deserves to suffer like they did." She added, "I had every reason to think he was taking it in and he was genuinely sorry for what he did."

Prejean said she had met with Tsarnaev five times since early March and that he "kind of lowered his eyes" when he spoke about the victims. His "face registered" what he was saying. She interpreted his remorseful sentiment "as absolutely sincere," she said.

Prejean said she talked with Tsarnaev about both their faiths: his Islam and her Catholicism. "I talked about how in the Catholic Church we have become more and more opposed to the death penalty," she said, quickly drawing an objection from the prosecution.

Defense attorney Miriam Conrad, questioning Prejean, interjected, "Stop you right there." Conrad asked Prejean what she heard in Tsarnaev's voice she he spoke about the victims' suffering. "It had pain in it," she said.

May 11, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

You be the judge: what federal sentence for latest CIA media leaker?

As explained via this Washington Post article, headlined "Judge faces choices in sentencing CIA leaker," a federal judge in Washington DC has a tough sentencing call to make this afternoon:

The way prosecutors see it, ex-CIA officer Jeffrey Sterling is a devious malcontent who spread classified half-truths to a New York Times reporter, seriously harming national security.  By defense attorneys’ telling, Sterling is a compassionate, hardworking man whose misdeeds have been greatly exaggerated.

Which account U.S. District Judge Leonie M. Brinkema believes will ultimately shape the sentence she imposes Monday on the 47-year-old Missouri man, who was convicted in January of giving away sensitive information about an operation to thwart Iran’s nuclear ambitions.  The range of options she has to consider is broad.

Defense attorneys are arguing for a sentence in line with other convicted leakers — including former CIA director and retired general David Petraeus, who was sentenced last month to two years of probation and a $100,000 fine for leaking classified information to his mistress and biographer.  Prosecutors are advocating a “severe” penalty, and they have noted that federal sentencing guidelines call for 19 years and seven months at the low end and 24 years and five months at the high end.

Neither side has offered a specific recommendation on prison time.  Experts say a sentence approaching two decades is unlikely: The sentencing guidelines, they say, seem to be intended for spies nefariously helping foreign governments — a characterization that does not fit Sterling’s case.

Prosecutors have argued such spies are charged under a different statute, and they have noted the U.S. Sentencing Commission “has not seen fit to carve out any exception or departure for disclosing national defense information to the media or the public.”

But experts say Brinkema is likely to impose a penalty well below what the sentencing guidelines call for. “Frankly, I can’t imagine her not departing downward here,” said Dan Schwager, a former federal prosecutor now in private practice at Martin & Gitner.

But Sterling, experts say, should probably expect a tougher sentence than Petraeus, even though his defense attorneys assert that the two men are not all that different.  “It’s hard to put something like that completely out of your mind. It’s hanging out there,” former federal prosecutor Randall Eliason, who teaches law at George Washington University Law School, said of Petraeus’s recent sentence.  “At the same time, at the risk of sounding cliche, every case is different, and there are some significant differences — at least to me — between the cases.”

Sterling was convicted of nine criminal counts for providing New York Times reporter James Risen with classified information about the CIA operation, which involved giving faulty nuclear blueprints to Iran. Prosecutors argued Sterling was a disgruntled employee with a vendetta against the CIA because of employment grievances, and he fed Risen a misleading story with some accurate, classified details to paint the agency as inept. As as result, prosecutors argued, the United States was forced to abandon one of its few mechanisms to keep Iran’s nuclear ambitions in check.

Experts say Brinkema is likely to weigh two key factors as she assesses prosecutors’ request for a harsh sentence: Sterling’s motive, and the harm his illegal disclosures caused. Eliason said those factors might separate Sterling from Petraeus, who did not seem to have any malevolence and whose leaks never wound up in any published material. “There’s kind of this spectrum of possible conduct, and I think someone like Sterling falls somewhere in the middle,” Eliason said.

Prosecutors themselves asserted in a recent filing that Sterling’s case stood apart from other recently convicted leakers, including Petraeus; former CIA officer John Kiriakou, who revealed the name of a covert officer and was sentenced to 30 months in prison; and former State Department arms expert Stephen Jin-Woo Kim, who leaked classified information to a Fox News reporter and was sentenced to 13 months in prison....

Brinkema, though, might disagree with the government’s assessments, experts said. Schwager said that, not unlike other recent leak cases, “ego” seemed to play a key role in motivating Sterling. And the damage Sterling’s disclosures caused, Schwager said, was hard to point to explicitly — a fact that would not be lost on the judge. “She knows the difference between specific harm and speculative harm,” Schwager said.

Prior related posts:

May 11, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, May 10, 2015

Florida prosecutor says he will not seek 15-year prison terms for sex-on-beach convictions

Images (2)As noted in this recent post, "Imprisonment for 15 years for sex on the beach?!?! Really?!?!," at least one member of an indecent couple in Florida seemed to be facing an indecent prison sentence for some shoreline dirty dancing. But this local article, headlined "State attorney won't seek 15-year prison sentences for Bradenton Beach sex-on-the-beach couple," now suggests that prosecutors are going to be seeking a much less extreme sanction for these miscreants. Here are the latest details:

State Attorney Ed Brodsky said Thursday he will not seek the maximum possible punishment — 15 years in prison — for the couple convicted of having sex in public on Bradenton Beach.

Brodsky, elected state attorney for the 12th Judicial District, said his office never intended to seek the maximum 15-year sentence against Jose Caballero, 40, or Elissa Alvarez, 20, for having sex on Cortez Beach in July.

The couple was found guilty Monday on charges of lewd and lascivious exhibition after a video played in court showed Alvarez moving on Caballero in a sexual manner. Witnesses testified a 3-year-old girl had seen the couple.

The charge carries a maximum sentence of 15 years in prison, and requires both to register as sex offenders. "It was never our intention to seek 15 years for either of them," Brodsky said. "That's not a reasonable sentence."

Defense attorney Ronald Kurpiers said because Caballero served a previous prison sentence for cocaine trafficking within the past three years and the prosecution had filed prison release reoffender paperwork, Caballero would be sentenced to the maximum sentence of 15 years under Florida's prisoner release reoffender law.

Kurpiers said if Brodsky was saying they weren't seeking 15 years, it meant they had withdrawn the PRR. "I've never experienced that before in all my years in law," Kurpiers said. "I'm honestly emotional about it. That was a huge hurdle."

Brodsky said he wasn't willing to discuss what kind of sentences they will seek and a sentencing hearing hasn't been scheduled. Kurpiers said the judge would now have some discretion instead of an automatic sentence for Caballero. Kurpiers said he would try to have the sentence lowered. "I need to get out my knee pads so I can get down and beg," Kurpiers said.

Brodsky refuted the claim he would be seeking the maximum punishment after Families Against Mandatory Minimums, a Washington, D.C.-based interest group that fights mandatory minimum prison sentences, said they called his office Thursday to urge prosecutors not seek 15 years in prison for Caballero.

"As outrageous as Mr. Caballero's behavior was, it would be even more outrageous for the state to make him spend 15 years in prison," said Julie Stewart, president and founder of the organization, in a release. "As a parent, I would not want my children to see people having sex on a public beach in the middle of the day. But as a taxpayer, I would be even more offended to waste hundreds of thousands of dollars to punish Mr. Caballero's irresponsible behavior."...

A campaign was also launched Thursday on Causes.com titled: "Free couple facing 15 years in prison for sex on the beach." Led by Vitor Ribeiro, whose Facebook account lists Portugal as home, the campaign received more than 500 signatures by early Thursday evening. "Having sex on the beach is not a crime worthy of such a barbaric sentence," reads the campaign's subtitle.

Stewart said the state plea offer to Caballero for two and a half years in prison prior to the trial was evidence it didn't believe he deserved 15 years for the crime. Brodsky confirmed they had made the plea offer, and Caballero chose to reject it to go to trial. Kurpiers said he "strongly recommended" his clients take the plea deal, but ultimately it was their choice to refuse....

Alvarez and Caballero are in the Manatee County jail awaiting sentencing.

Beyond its prurient elements, this case provides a notable case-study in the import and impact of mandatory minimum sentencing schemes and the sentencing power mandatory minimums necessarily place in the hands of prosecutors.

For starters, I doubt the defense attorney would have "strongly recommended" that one defendant accept a 2.5-year prison sentence for merely having sex on the beach absent the threat of a 15-year mandatory prison term if the defendant exercised his right to go to trial.  How could and would a defense attorney reasonably tell a client that a long prison term is a reasonable offer for this behavior and giving up all rights to challenge the state's case absent the threat of a much more extreme mandatory prison term if convicted after a trial?

Next, as I understand Florida law in this setting, the only reason now that defendant Caballero will not get 15 years in state prison is because the prosecutor now has decided to, in essence, nullify the Florida "prison release reoffender" (PRR) law by taking back the paperwork needed to invoke its mandatory sentencing consequences.  Absent the media scrutiny that this case has come to generate, would the prosecutor likely have been so quick to say he never sought an extreme 15-year PRR sentence for Caballero?.

Critically, if the prosecutor never thought this was a proper PRR case, why did the prosecutor initially file the PRR paperwork in the first instance against Caballero?   Is there likely any reason other than to to try to force a plea deal through the threat of an extreme mandatory prison sentence — a threat which would essentially require the defense attorney to "strongly recommended" that defendant Caballero accept the 2.5-year prison sentence offered by the prosecutor?

Finally, only when the defendants exercised their right to trial — and thereafter likely only because this case started to garner attention — do we now here the prosecutor say on the record that a 15-year term was never sought and would not be reasonable.  In other words,  only once the media saw the prosecutor with his hand in the extreme mandatory-sentencing cookie jar did he pull his hand out and say he never really wanted that 15-year prison term for Caballero.

It is reassuring to see that media attention can and will sometimes prompt a prosecutor in an individual case to exercise his power and discretion to take an extreme mandatory sentence of the table after a trial conviction.  But these problems only arise because of the existence of extreme and broad mandatory minimums, and that is why I generally believe such laws make for bad public policy because I think our sentencing system should incorporate true checks-and-balances rather than be functionally controlled  by executive branch fiat.

Prior related post:

May 10, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Saturday, May 09, 2015

"Pressure builds on GOP for police, criminal justice reforms"

The title of this post is the title of this recent lengthy Politico article.  Much of the article discusses debate over possible federal involvement in state and local policing reforms.  But, as these passages highlight, federal criminal justice reform is part of the current mix in congressional reform discussions:

Pressure is mounting on Republican congressional leaders to take up criminal justice and police reform legislation — and the calls are increasingly coming from within the GOP.

Republican leaders haven’t yet decided how to proceed on an issue conservatives typically have not treated as a priority. But with outrage over police killings of African-Americans dominating the news, an increasing number of rank-and-file GOP lawmakers say doing nothing is no longer an option. 

Sheriff-turned-Rep. Dave Reichert (R-Wash.) wants Speaker John Boehner (R-Ohio) to set up a new select committee on the issue. Sen. Tim Scott, a black South Carolina senator, is pushing for more body cameras. And Senate Majority Whip John Cornyn (R-Texas) is eyeing a commission to study problem areas in criminal justice....

“We are doing a great disservice to ourselves and to everyone else so clearly frustrated by the status quo if we isolate Baltimore or Ferguson as just individual instances of civic unrest … if we don’t step back and see how they fit into the broader issue of our entire criminal justice system,” Cornyn said on the Senate floor Wednesday.

The Senate’s No. 2 Republican was advocating for a criminal justice overhaul. In addition to the bill to start a national commission, he’s sponsoring bipartisan legislation to allow well-behaved prisoners to earn time off their sentences.

It’s a different take on another proposal floated by President Barack Obama and Republicans alike: reducing mandatory minimum sentences on nonviolent drug related crimes, which are cited as one of the major reasons many black men from urban settings end up behind bars.

Leadership is listening but has not committed to a course of action. Boehner on TV last week, for example, retorted, “Why not?” when asked if the federal government should “chip in” for body cameras. Leaders in both chambers are waiting to see what their top law enforcement legislators say first. Both Judiciary Committees are already discussing what needs to be done and are scheduling hearings for the next few weeks....

For now, most of the work will focus on committees like Grassley’s, which seem to be sticking to areas with more consensus, like mandatory minimums and body cameras. During a recent speech, Grassley also floated a pitch to require states to give those charged with a misdemeanor counsel in court, and to reform a nationwide database that allows potential employers to find out if applicants were ever arrested — and use it against them even if they were released without charges.

Some recent related posts:

May 9, 2015 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, May 08, 2015

"We clearly need criminal-justice reform" says GOP Prez candidate Carly Fiorina

This Des Moines Register article (and video) details some notable new comments on criminal justice reform and drug policy from a notable new GOP Prez candidate.  Here are excerpts: 

The nation should stop overreacting to illegal drug use and stop doling out jail sentences that are way too long, Republican presidential candidate Carly Fiorina said in Iowa on Thursday.

"We know that we don't spend enough money on the treatment of drug use," said Fiorina, former chief executive of Hewlett-Packard. "When you criminalize drug abuse, you're actually not treating it. We had a daughter who died of addictions, so this lands very close to home for me." Fiorina's daughter Lori, a drug and alcohol addict, died in 2009.

The "three strikes and you're out" law doesn't work well, and all the drug laws affect African-Americans more than others, Fiorina told The Des Moines Register's editorial board during an hourlong meeting.

"I don't think that overreacting to illegal drug use is the answer," said Fiorina, who officially entered the 2016 race on Monday and is the only woman in the GOP field. She has never held elected office, but ran unsuccessfully for U.S. senator in California.

Asked whether she favors decriminalizing marijuana, Fiorina answered: "No, I do not think we should legalize marijuana."...

Asked whether, as president, she'd direct the U.S. attorney general to enforce federal drug laws in states such as Colorado, Alaska, Washington and Oregon, Fiorina said she wouldn't. "I believe in states' rights," she said. "They're within their rights to legalize marijuana, and they're conducting an experiment I hope the rest of the nation is looking closely at."

May 8, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

"Have Texans lost their taste for capital punishment?"

The question in the title of this post is the first line in this Dallas Morning News commentary by Steve Blow headlined "Even in tough-on-crime Texas, death penalty convictions decline." Here are excerpts from the start of the piece:

I was struck by recent news accounts of a local murder trial. I remembered the crime well. Jacob Galen Everett, 22, was convicted of entering a Red Wing shoe store in Arlington, directing clerk Randy Pacheco to the back room and shooting him once between the eyes. Robbery was the motive, and the evidence showed that Everett got away with $200.

A few years ago, that would have been a certain death penalty case -- a cold-blooded murder committed in the course of a robbery. Instead, prosecutors sought life without parole and jurors went along.

I’m sure Texas still prides itself as a law-and-order state, but our hang-’em-high reputation may be in jeopardy. “There is no doubt about it. We’re seeing a reduction in the use of the death penalty in Texas,” said Kathryn Kase, executive director of Texas Defender Service. That’s a nonprofit that assists in death penalty defenses and advocates for fair trial policies. “We have a reduction in death penalty cases going to trial, and we have a reduction in death verdicts,” she said.

In 1999, Texas courts sent 39 people to death row. Last year, it was 11. And so far this year, none. “Here it is May, and we have had only two death penalty cases in Texas,” Kase said. “And in both, the jury chose life without parole instead. That strikes me as really significant.”

A decline is also evident in the number of executions being carried out. Yes, Texas still led the nation in executions last year, but it was with an asterisk. For the first time in decades, Texas shared that distinction. We tied with Missouri. Both states executed 10 people. Florida was close behind with eight.

And those numbers reflected a downward trend in executions -- both in Texas and the other 31 states with the death penalty. Executions in Texas peaked at 40 in the year 2000.

May 8, 2015 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

Alabama rolls to join tide of red states enacting significant prison and sentencing reform

Images (1)As reported in this local article, the "Alabama Legislature Thursday gave final approval to a sweeping prison reform bill aimed at addressing the state's prison overcrowding crisis." Here are the basic details and the back-story:

The bill passed the House on a 100 to 5 vote Thursday evening.  The Senate, which approved the bill in March, concurred in the changes just a few minutes later on a 27 to 0 vote.  The legislation now goes to Gov. Robert Bentley, who said in a statement Thursday evening he planned to sign the bill, pending a legal review.

Bentley said in a statement the passage of the bill signaled "a historic day for Alabama as we take a significant step forward to address reform of Alabama's criminal justice system."...

Sen. Cam Ward, R-Alabaster, said Thursday evening the passage of the bill was a first step, not a final solution to the crisis. "No one should think we pass this bill tonight and prisons are solved, because they're not," Ward said.

Prison overcrowding, an issue in Alabama for decades, stood at 186 percent in January, and the crisis has contributed to mounting violence in the state's correctional facilities. The U.S. Department of Justice is investigating the Julia Tutwiler Prison for Women over accounts of sexual violence and harassment.  Six inmates have been killed at the St. Clair Correctional Facility since 2011, and allegations of physical or sexual violence have been leveled at three other prisons, including Elmore County Correctional Facility.

The reform bill aims to address the prison overcrowding crisis with new investments in parole, probation and supervision; the creation of a Class D felony for relatively minor crimes; limits on prison time and mandatory supervision for those convicted of Class C felonies, and changes to punishments for technical violations of parole.  The changes are expected to cost between $23 and $26 million a year, roughly 6.5 percent of the Department of Corrections' current $394.1 million allocation from the General Fund.

On its own, the bill will not resolve the crisis.  However, with additional building funded under a separate piece of legislation, capacity could fall to 138 percent over the next five years, with the overall population falling by about 4,500 inmates.  "That would be the largest reduction of any state in the country to this date," Ward said.

Ward said that may prevent the system from falling into federal receivership, which could lead to significant increases in prison spending; mass release of prisoners, or both. The bill before the House, Ward said, was a targeted way to address the population.  "No one's being released early," he said. "That's what we're trying to avoid, a bunch of violent offenders being released early."

The bill reflects recommendations made by the Council of State Governments and approved by the Alabama Prison Reform Task Force, which Ward chairs.  House Judiciary Committee chairman Mike Jones, R-Andalusia, said at the start of the House debate that the bill was not a matter of ideology.  "This is not about being Democrats, this is not about being Republicans, this is about being responsible for a problem our state faces," he said....

Some members of the Alabama Prison Reform Task Force had pushed for a more sweeping bill that would have made many of the provisions retroactive.  However, Ward and other sponsors of the legislation said the coalition behind the reforms was not likely to have gone that far.

The passage of the legislation received praise from both sides of the ideological divide. Susan Watson, the executive director of ACLU Alabama, applauded the passage of the bill in a statement Thursday evening.  "The passage of this legislation shows that Alabama acknowledges there is a serious over-incarceration problem in our prisons and that it is dedicated to fixing it," the statement said.

Katherine Robinson, vice president of the Alabama Policy Institute, called the move a "significant step" toward addressing the problem.  "This collaborative effort has provided the necessary catalyst of meaningful reform to Alabama's prison system," Robinson said in a statement.

House Speaker Mike Hubbard, R-Auburn, said the accusations at Tutwiler, St. Clair and other facilities served as a "wake-up call" to legislators who may have otherwise been reluctant to address a politically difficult issue.  "Clearly the best course of action for us as a state was to take control of this and fix it ourselves," he said.  "I'm proud of the fact we have taken a leadership role.  It was clear we were running out of time."

May 8, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Senator Grassley's home-state paper tells him to stop blocking federal sentencing reforms

This new editorial from the Des Moines Register, headlined "Grassley should not block sentencing reforms," highlights that some notable folks are frustrated by Senator Charles Grassley's apparent unwillingness to move forward significantly with federal sentencing reforms proposed by his colleagues. Here are excerpts:

Amid hysteria over growing use of illegal drugs 30 years ago, Congress passed tough new criminal laws carrying long mandatory prison sentences. Regardless of whether mandatory sentences had any effect on drug abuse, they have contributed to a 500 percent increase in the federal prison population and a 600 percent increase in federal prison spending.

Besides filling prisons and imprisoning a generation of largely minority males from inner cities, these one-size-fits-all sentences tie the hands of judges who should tailor penalties to the unique circumstances of individual defendants.  And this obsession with criminalizing drug use has diverted resources that instead should be used to help people overcome their addictions.

Something extraordinary has happened recently, however: A consensus has emerged that this nation has put far too many people behind bars, and in the process it has created an unemployable underclass with criminal records.  That consensus includes a remarkable cross-section of politicians from both ends of the political spectrum, along with religious leaders, corporate executives and opinion leaders.

While there is growing bipartisan support in Congress for changing the mandatory-minimum sentencing law, one potential stumbling block remains stubbornly in place: U.S. Sen. Charles Grassley, who as chairman of the Senate Judiciary Committee is in a position to allow federal sentencing reforms to move forward.

Grassley’s rhetoric has not encouraged optimism.  He was dismissive and defensive when a “Smarter Sentencing Act” was introduced in March with the support of senators ranging from Republicans Ted Cruz of Texas and Rand Paul of Kentucky to Democrats Dick Durban of Illinois and Patrick Leahy of Vermont.  He referred to supporters of the sentencing reform bill in a floor speech as the “leniency industrial complex.”

Although he recently seemed to soften his tone, saying he is “ready to address some of these issues,” Grassley has ruled out any across-the-board cut in mandatory minimum sentences.  Three Iowa bishops in a guest opinion published by the Register May 1 called on him to support sentencing reform, but he promptly responded with an opinion piece that amounted to a full-throated defense of mandatory minimum sentences.

The argument in favor of mandatory sentences is that the prospect of spending decades in prison gives prosecutors leverage to get lower-tiered dealers to produce evidence against “drug kingpins.”  But this gives prosecutors enormous power to force defendants to plead guilty, and with no prior involvement of a judge in open court.

Despite the assertion that mandatory sentences are aimed at putting away drug lords, “offenders most often subject to mandatory minimum penalties at the time of sentencing were street-level dealers — many levels down from kingpins and organizers,” according to research by the U.S. Sentencing Commission....

This nation’s war on drugs focused on criminal punishment instead of treatment has been a complete failure.  At long last there is growing support for changing that.  Iowa’s senior senator should not stand in the way.

Some recent related posts:

May 8, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, May 07, 2015

"Mass Incarceration: The Silence of the Judges"

The title of this post is the headline of this lengthy piece authored by Judge Jed Rakoff appearing in The New York Review of Books.  Here is how it starts and ends:

For too long, too many judges have been too quiet about an evil of which we are a part: the mass incarceration of people in the United States today.  It is time that more of us spoke out. 

The basic facts are not in dispute.  More than 2.2 million people are currently incarcerated in US jails and prisons, a 500 percent increase over the past forty years.  Although the United States accounts for about 5 percent of the world’s population, it houses nearly 25 percent of the world’s prison population.  The per capita incarceration rate in the US is about one and a half times that of second-place Rwanda and third-place Russia, and more than six times the rate of neighboring Canada.  Another 4.75 million Americans are subject to the state supervision imposed by probation or parole.

Most of the increase in imprisonment has been for nonviolent offenses, such as drug possession.  And even though crime rates in the United States have declined consistently for twenty-four years, the number of incarcerated persons has continued to rise over most of that period, both because more people are being sent to prison for offenses that once were punished with other measures and because the sentences are longer.  For example, even though the number of violent crimes has steadily decreased over the past two decades, the number of prisoners serving life sentences has steadily increased, so that one in nine persons in prison is now serving a life sentence.

And whom are we locking up? Mostly young men of color.  Over 840,000, or nearly 40 percent, of the 2.2 million US prisoners are African-American males.  Put another way, about one in nine African-American males between the ages of twenty and thirty-four is now in prison, and if current rates hold, one third of all black men will be imprisoned at some point in their lifetimes.  Approximately 440,000, or 20 percent, of the 2.2 million US prisoners are Hispanic males....

In many respects, the people of the United States can be proud of the progress we have made over the past half-century in promoting racial equality.  More haltingly, we have also made some progress in our treatment of the poor and disadvantaged.  But the big, glaring exception to both these improvements is how we treat those guilty of crimes.  Basically, we treat them like dirt.  And while this treatment is mandated by the legislature, it is we judges who mete it out.  Unless we judges make more effort to speak out against this inhumanity, how can we call ourselves instruments of justice?

May 7, 2015 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

Delaware Gov pledges to sign death penalty repeal legislation

As reported via this local article, Delaware "Gov. Jack Markell broke his silence on the effort to repeal Delaware's death penalty, telling the News Journal that he believes capital punishment is an 'instrument of imperfect justice'." Here is more:

"It doesn't make us safer," Markell said. "Should the repeal bill come to my desk, I would sign it." Markell's comments come just days before a House committee takes up the legislation which repeals the state's death penalty, except for those 15 inmates already on death row.

This is the first time Markell has publicly spoken on the matter. Markell said he's taken his time to formulate his position on the matter, saying that recent exonerations nationally and revelations of flawed testimony in certain cases have helped shape his view. "This is not an easy issue. My thinking has changed and I just wanted to give it very careful consideration," he said.

In April, the legislation passed the Senate in April 11-9 and now heads to the House Judiciary Committee. The legislation was not passed out of the same House committee last General Assembly. Police groups strongly oppose repeal and are expected to step up opposition in the House.

Markell said he respects all viewpoints on the matter, saying that at one point while serving on the state's Board of Pardons, he supported four of the five death penalty cases that came before him. "I know this is a really difficult issue for members of the General Assembly," he said. "I hope that after considering the arguments as I have, they will reach the same conclusion that I have."

May 7, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

"Unequal Justice: Mobilizing the Private Bar to Fight Mass Incarceration"

The title of this post is the title of this intriguing new report recently published by the Lawyers’ Committee for Civil Rights Under Law.  This new Crime Report piece, headlined "Acknowledging Bias in the Criminal Justice System," provides a helpful summary of the report's key themes:

Mass incarceration reform efforts rarely formally address racial disparities within the criminal justice system, according to a new report from the Lawyers’ Committee for Civil Rights Under Law, an advocacy group.  The report outlines systematic racial disparities in the criminal justice system and proposes strategies to address them.  It was created as a result of a series of “listening sessions” on race and imprisonment.

The sessions included dozens of practitioners, experts, academics, national law firm representatives, and formerly incarcerated individuals, who gathered “to discuss the state of mass incarceration, reform efforts, and the role of national law firms in this movement.”  The discussions near unanimous agreement that there is bias against black and Hispanic defendants in the criminal justice system.

“However, this fact is often absent in public discourse and almost never formally addressed in reform efforts.  This is particularly troubling since racial disparities in incarceration are often the result of implicit racial bias and structural or institutionalized racial discrimination, deep-rooted species of dysfunction which can only begin to be addressed by the acknowledgement and recognition that it exists,” the report’s authors wrote.

The report also noted that there is a “huge gap” in the legal effort to change mass incarceration. “Simply put, very few organizations in the nation have the resources, expertise, and will to fight mass incarceration in the courts,” the authors wrote.

May 7, 2015 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Electrifying Tennessee fight over electric chair as back up execution method

BuzzFeed has this interesting new article about an interesting legal fight unfolding in Tennessee.  This extensive headline provides the basics: "Tennessee Officials Fight Inmates’ Attempt To Challenge Electric Chair Plans: The electric chair is Tennessee’s plan B if the state can’t get ahold of lethal drugs. The inmates argue it’s unconstitutional, but the state argues that they can’t challenge it yet."  Here are some details from the start of the article:

Can death-row inmates challenge the constitutionality of electrocution?  The Tennessee Supreme Court will soon decide.  

Death penalty states once phased out the electric chair in favor of drugs — for humane reasons.  Now that drugs have become hard to obtain, states like Tennessee have turned to older execution methods like the chair as a backup.

On Wednesday, the state court will weigh whether death-row inmates can challenge the method’s constitutionality.  Thirty-four inmates allege electrocution is a violation of the Eighth Amendment’s ban on cruel and unusual punishment — that the electric chair disfigures the body and is an affront to evolving standards of decency.

But Tennessee has pushed to have the lawsuit dismissed, arguing that the inmates can’t challenge the method because none of them are actually scheduled to face electrocution.

Tennessee’s preferred method is lethal injection, using pentobarbital made from a secret compounding pharmacy.  Lawmakers passed a law last year that makes electrocution the contingency plan if either drug makers or the courts make lethal injection impossible.

“The[y] are asking the court in this case to… consider hypothetical situations involving uncertain or contingent future events that may or may not occur as anticipated or, indeed, may not occur at all,” Attorney General Herbert Slatery’s office wrote.

May 7, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, May 06, 2015

Boston bombing defense team turns to brain science in making mitigation case

As reported in this new Boston Globe piece, headlined "Brain expert testifies for Tsarnaev defense in penalty phase," jurors tasked with deciding what punishment to impose on the Boston Marathon bomber got a lesson in brain science during today's trial activities. Here are the details:

The part of the brain that matures the latest is the part that controls impulses and imagines consequences of actions in the future, a brain development expert testified Wednesday at the death penalty trial of Boston Marathon bomber Dzhokhar Tsarnaev.

Dr. Jay Giedd, a professor at the University of California San Diego and a child psychiatrist, was called as a witness by the defense, which is seeking to stave off a death sentence for Tsarnaev, who was 19 at the time of the bombing. Giedd’s testimony came on the sixth day of the defense case in the penalty phase of Tsarnaev’s trial in US District Court in Boston. The defense is seeking a sentence of life without parole....

Giedd’s testimony appeared to be intended to suggest that Tsarnaev was not fully responsible for what he did because of his youth. In teenagers, Giedd said, impulse control is “still under construction.”

“Teens are more likely to choose smaller, sooner rewards” and are “less worried for long-term consequences,” he said. He said people’s brains tend to become adults in the second decade of their lives. But he said, “There are so many exceptions to the rule.”

He also emphasized the role of environment in a child’s brain development. Parents, he said, are “always on, teaching our children about dealing with emotion. ... Our brains learn by example.”

Under cross-examination by Assistant US Attorney Nadine Pellegrini, Giedd also testified that it was crucial to look at a person’s behavior to determine how mature they are. “The behavior itself is ... key,” he said.

He acknowledged that people even younger than Tsarnaev was could have the brain maturity to recognize the consequences of their actions. “Age might just be a number when we’re talking about the level of maturity of an individual?” Pellegrini said. Giedd agreed.

May 6, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"On Criminal Justice Reform, Ted Cruz Is Smarter Than Hillary Clinton"

The title of this post is the effective title of this piece by Jacob Sullum appearing last week at Reason that captures my reaction to two of the notable essays in this fascinating Brennan Center publication titled "Solutions: American Leaders Speak Out on Criminal Justice."  Here are excerpts from Sullum piece explaining why criminal justice reforms might reasonably be more excited by the prospect of a Prez Cruz rather than another Prez Clinton:

The Brennan Center [book] ... features worthy and substantive contributions from, among others, Sens. Rand Paul (R-Ky.), Cory Booker (D-N.J.), and Ted Cruz (R-Texas), not to mention nonpoliticians such as UCLA criminologist Mark Kleiman and Marc Levin, founder of Right on Crime.  Even New Jersey Gov. Chris Christie, who is not exactly thoughtful on the subject of, say, marijuana legalization, has some interesting things to say about bail reform.  And then there are former President Bill Clinton, Vice President Joe Biden, Wisconsin Gov. Scott Walker, Sen. Marco Rubio (R-Fla.), and former Secretary of State Hillary Clinton, who either support policies that contribute to overincarceration and excessive punishment, fail to acknowledge their past support for such policies, or have nothing specific to say about how to correct those policies....

Hillary Clinton ... notes that as a senator she supported shorter crack sentences (as did almost every member of Congress by the time a bill was enacted in 2010).  But unlike Paul, Booker, and Cruz, who describe actual pieces of legislation they have either introduced or cosponsored, Clinton is decidedly vague about what reforms should come next.

Clinton wants us to know "it is possible to reduce crime without relying on unnecessary force or excessive incarceration," which may sound wise but is actually a tautology. Instead of unnecessary force or excessive incarceration, she suggests, "we can invest in what works," such as "putting more officers on the streets."  Clinton, her husband, and Joe Biden all seem to agree that you can never have too many cops.  She also mentions "tough but fair reforms of probation and drug diversion programs," along with more money for "specialized drug courts and juvenile programs."  That's about as specific as she gets.

Clinton fills out the essay with platitudes and self-aggrandizing references to Robert Kennedy and "my friend" Nelson Mandela.  She also name-checks "Dr. King."  Possibly all three of these men have something to do with criminal justice reform, but if so Clinton never bothers to elucidate the connections.  It is sad that the Democratic Party's presumptive presidential nominee would offer such a shallow discussion of a subject on which Democrats are supposed to be more enlightened than Republicans. By contrast, three less prominent Democrats — Booker, former Maryland Gov. Martin O'Malley, and former Virginia senator Jim Webb — contributed essays that are actually worth reading.

Clinton's essay is especially embarrassing compared to Ted Cruz's.  Although Cruz is not as passionate, active, or ambitious on criminal justice reform as Rand Paul is, his essay includes succinct and informed discussions of the bloated federal criminal code, the leverage that mandatory minimums give prosecutors, and the virtual disappearance of trial by jury in criminal cases, along with specific reforms to address these problems.  Democrats who think Hillary Clinton is savvier or smarter than Cruz may reconsider after reading these essays side by side.

Recent related posts:

May 6, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, May 05, 2015

"What can one prosecutor do about the mass incarceration of African-Americans?"

The question in the title of this post is the subheadline of this lengthy and timely New Yorker article authored by Jeffrey Toobin.  For many reasons (as perhaps the highlights below suggest), the full article is a must-read:

Like many people in the criminal-justice system, John Chisholm, the District Attorney in Milwaukee County, has been concerned for a long time about the racial imbalance in American prisons.  The issue is especially salient in Wisconsin, where African-Americans constitute only six per cent of the population but thirty-seven per cent of those in state prison. According to a study from the University of Wisconsin-Milwaukee, as of 2010 thirteen per cent of the state’s African-American men of working age were behind bars — nearly double the national average, of 6.7 per cent.  The figures were especially stark for Milwaukee County, where more than half of African-American men in their thirties had served time in state prison.  How, Chisholm wondered, did the work of his own office contribute to these numbers?  Could a D.A. do anything to change them?

The recent spate of deaths of unarmed African-Americans at the hands of police officers has brought renewed attention to racial inequality in criminal justice, but in the U.S. legal system prosecutors may wield even more power than cops.  Prosecutors decide whether to bring a case or drop charges against a defendant; charge a misdemeanor or a felony; demand a prison sentence or accept probation.  Most cases are resolved through plea bargains, where prosecutors, not judges, negotiate whether and for how long a defendant goes to prison.  And prosecutors make these judgments almost entirely outside public scrutiny.

Chisholm decided to let independent researchers examine how he used his prosecutorial discretion.  In 2007, when he took office, the Vera Institute of Justice, a research and policy group based in New York City, had just begun studying the racial implications of the work of the Milwaukee County District Attorney’s office.  Over several years, Chisholm allowed the researchers to question his staff members and look at their files. The conclusions were disturbing.  According to the Vera study, prosecutors in Milwaukee declined to prosecute forty-one per cent of whites arrested for possession of drug paraphernalia, compared with twenty-seven per cent of blacks; in cases involving prostitution, black female defendants were likelier to be charged than white defendants; in cases that involved resisting or obstructing an officer, most of the defendants charged were black (seventy-seven per cent), male (seventy-nine per cent), and already in custody (eighty per cent of blacks versus sixty-six per cent of whites).

Chisholm decided that his office would undertake initiatives to try to send fewer people to prison while maintaining public safety.  “For a long time, prosecutors have defined themselves through conviction rates and winning the big cases with the big sentences,” Nicholas Turner, the president of the Vera Institute, told me.  “But the evidence is certainly tipping that the attainment of safety and justice requires more than just putting people in prison for a long time.  Prosecutors have to redefine their proper role in a new era.  Chisholm stuck his neck out there and started saying that prosecutors should also be judged by their success in reducing mass incarceration and achieving racial equality.” Chisholm’s efforts have drawn attention around the country....

Chisholm reflects a growing national sentiment that the criminal-justice system has failed African-Americans.  The events in Baltimore last week drew, at least in part, on a sense there that black people have paid an undue price for the crackdown on crime. Since 1980, Maryland’s prison population has tripled, to about twenty-one thousand, and, as in Wisconsin, there is a distressing racial disparity among inmates. The population of Maryland is about thirty per cent black; the prisons and local jails are more than seventy per cent black....

Chisholm decided to move to what he calls an evidence-driven public-health model. “What’s the most effective way to keep a community healthy?” he asked. “You protect people in the first place.  But then what do you do with the people who are arrested?” There are two basic models of prosecutorial philosophy.  “In one, you are a case processor,” he said.  “You take what is brought to you by law-enforcement agencies, and you move those cases fairly and efficiently through the system.  But if you want to make a difference you have to do more than process cases.”

So Chisholm began stationing prosecutors in neighborhoods around Milwaukee.  “If people view prosecutors as just the guys in the courthouse, who are concerned only with getting convictions, then you are creating a barrier,” he said.  He and his team started asking themselves in every instance why they were bringing that case.  “In those that were seen as minor, it was the least experienced people who were deciding whether to bring them.  And these people saw that we had generally brought those cases in the past, so they went ahead with them again. But we started to ask, ‘Why are we charging these people with crimes at all?’ ”

May 5, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Oklahoma Gov signs "safety valve" legislation giving judges more sentencing discretion

As noted in this prior post, a few month ago the Oklahoma House passed by a significant margin a state Justice Safety Valve Act authorizing state judges to give sentences below otherwise-applicable mandatory minimums.  Now, as effectively reported via this FreedomWorks posting, this notable sentencing reform has become law.  The piece is headlined "Oklahoma becomes the latest Republican state to enact meaningful justice reforms," and here are the details (with links from the original).

Oklahoma Gov. Mary Fallin signed a major bill into law allowing judges to sentence nonviolent offenders below mandatory minimum sentences, a big government, one-size-fits-all policy that costs taxpayers big bucks....

Introduced in February by state Rep. Pam Peterson (R-Tulsa), the Justice Safety Valve Act, HB 1518, is aimed at reducing the rate of incarceration in the Oklahoma, which is among the highest in the United States. The bill allows sentences below mandatory minimums if a judge determines, based on a risk assessment, that a nonviolent offender is not a public safety risk. The bill would allow the state to save much-needed bed space for dangerous criminals.

"Our prison bed space is being taken up with people who don’t need to be there," Peterson told NewsOK.com in February. "These people are breaking the law, but I think we’ve gone to the point now where we need that space for violent offenders and are filling it up with too many nonviolent offenders."

"The courts' hands are often tied because of these mandatory minimums," she said. “Longer sentences do not equate to public safety.”

HB 1518 passed both chambers of the Republican-controlled Oklahoma State Legislature with relative ease. The House approved the bill in March by a 76 to 16 vote. The Senate followed suit in late April, passing the bill in a 31 to 13 vote.  Fallin, a Republican, signed the bill on Monday.

In her State of the State address delivered in February, Fallin urged lawmakers to get "smart on crime," offering support for alternatives to incarceration for nonviolent offenders. Incarceration, she explained, actually increases the likelihood that an offender will continue a cycle of crime.

"Personal and community safety remain top priorities, and violent criminals will continue to be incarcerated. But the fact is, one in eleven Oklahomans serve time in prison at some point in their lives. Many of our current inmates are first time, nonviolent offenders with drug abuse and alcohol problems. Many also have mental health issues they need treatment for," said Fallin. "For some of these offenders, long sentences in state penitentiaries increase their likelihood of escalated criminal behavior.

"Oklahoma must ramp up its 'smart on crime' policies, including the Justice Reinvestment Initiative, designed to intervene for low-risk, nonviolent offenders and more readily offer alternatives such as drug-courts, veterans courts and mental health courts," she continued. "Implementation of coordinated 'smart on crime' efforts between state and local governments and tribal nations has demonstrated significant cost savings and improved outcomes for offenders and public safety."...

"It costs the state around $19,000 a year to house an inmate, but only $5,000 a year to send an addict through drug court and on to treatment," Fallin explained. "In addition to being less expensive, it’s also more effective; the recidivism rate for offenders sent to drug court is just one-fourth of the rate for those sent to prison."

The Justice Safety Valve Act will take effect on November 1.

May 5, 2015 in Criminal Sentences Alternatives, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Could new DEA chief significantly change realities of federal war on drugs?

The question in the title of this post is prompted by this Huffington Post article, headlined "Lawmakers Encourage Obama To Select A Progressive New DEA Chief," reporting on this recent letter sent by a group of Representatives to Prez Obama. Here are the details: 

In a letter sent Friday, a group of lawmakers are urging President Barack Obama to select a more progressive head of the Drug Enforcement Administration, following the Department of Justice's announcement that the embattled current chief will resign in May. "We encourage you to use this as an opportunity to reshape the DEA's direction to reflect your administration's enforcement priorities," the letter reads.  The letter was signed by Reps. Jared Polis (D-Colo.), Steve Cohen (D-Tenn.), Earl Blumenauer (D-Ore.) and Democratic California Reps. Barbara Lee, Sam Farr, Zoe Lofgren and Eric Swalwell.

While the lawmakers say they appreciate the Obama administration's efforts to allow states to forge their own marijuana policies, they said that current DEA Administrator Michele Leonhart "leaves behind a legacy of strident opposition to efforts to reform our nation's drug policy."  The letter urges the president to nominate a new DEA chief who will be willing to work with state and federal officials to craft more flexible marijuana policies....

With just a little more than two weeks before Leonhart steps down, it remains unclear who the Obama administration could nominate who would both be approved by a Republican-controlled Senate and be a good fit for the DEA.

Leonhart came to head the DEA as acting administrator in 2007, under President George W. Bush.  She was made administrator in 2010 during Obama's first term, but has long seemed out of step on drug policy, clashing with the administration over the legalization of recreational marijuana in Colorado and Washington and with efforts to lower the mandatory minimum sentences for those convicted of federal drug crimes.

In their letter, the lawmakers argue that under Leonhart the DEA placed "far too great an emphasis on prosecuting state-legal marijuana activity, as opposed to prioritizing more dangerous drug-related activity," adding that her "misplaced priorities" exacerbated problems with the criminal justice system and put a strain on "legitimate marijuana businesses operating under state law."

May 5, 2015 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, May 04, 2015

SCOTUS asks for views from US Solicitor General on original lawsuit between states over marijuana reform

Via this order list, the US Supreme Court called for the views of the Solicitor General in the original case of Nebraska and Oklahoma v. Colorado.  That is the case, as readers may recall from posts here and here back in December, in which two states filed suit directly in the Supreme Court seeking "a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution [legalizing and regulating marijuana sales] are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution."

I am not sure what the usual timelines tend to be for submission of CVSG briefs during this time of year, but I would think this request from the Justices will just now further slow the resolution of a suit that was filled five months ago and will remain in limbo now until the Solicitor General weighs in.

Prior related posts:

Cross-posted at Marijuana Law, Policy and Reform

May 4, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Fairer capital fight has Virginia prosecutors fighting for the death penalty less

As reported in this notable new AP article, headlined "Pace of death sentences, executions slows in Virginia," once the state of Virginia provided a sounder means to defend to capital defendants, prosecutors decided it was sounder not to seek death sentences quite so often. Here is how the lengthy article gets started:

A prosecutor's decision not to seek a death penalty for the man accused of abducting and killing a University of Virginia student is emblematic of capital punishment's decline across the country and in the state that once operated one of the busiest execution chambers in the nation. Virginia has sent only six people to death row in the last nine years after sending 40 over the previous eight years, according to statistics compiled by the Death Penalty Information Center. As a result, the state only has eight inmates awaiting execution — down from a high of 57 in 1995 — and unless something changes, Jesse Matthew Jr. won't be joining them.

Matthew is charged with first-degree murder in the death of 18-year-old Hannah Graham. He also is charged with abduction with intent to defile, which is the first of 15 offenses listed in state law that can elevate a murder count to capital murder. Albemarle County's chief prosecutor has declined to say specifically why Matthew, who is due in court for a hearing on pretrial matters Tuesday, was not charged with capital murder.

Matthew's case, perhaps the most high-profile murder case in Virginia since the 2002 Washington-area sniper shootings that left 10 dead, is playing out as the death penalty is on the wane. Virginia has slipped from second to third nationally — behind Texas and Oklahoma — with 110 executions since the U.S. Supreme Court reinstated capital punishment in 1976. No executions are currently scheduled.

Legal experts say there are many reasons for the deceleration of the death penalty in Virginia, but perhaps the biggest is the establishment in 2004 of four regional capital defender offices staffed by attorneys and investigators who devote all their time to death penalty cases.

"In the past, an awful lot of people who ended up on death row had abysmal representation," said Steve Northup, a lawyer and former executive director of Virginians for Alternatives to the Death Penalty. "Prosecutors were able to take advantage. Now prosecutors know capital defendants are going to be well represented."

It's no coincidence, experts suggest, that the sharp downturn in death sentences began the year the capital defender offices opened. The year before, Virginia sent six people to death row. No more than two death sentences have been imposed in any year since.

A recent study by University of Virginia law professor John G. Douglass concluded that the number of capital murder charges has declined, but not as rapidly as the number of death sentences. Virginia prosecutors obtained an average of 34 capital murder indictments a year between 1995 and 1999, but only 22 per year from 2008 through 2013. The percentage of those cases going to trial fell from 38 percent in the late '90s to 19 percent, suggesting more cases are being resolved by plea negotiations resulting in punishment less than death. "Virginia prosecutors have not abandoned the death penalty," Douglass wrote. "Instead, increasingly, they bargain with it."

Douglass agrees with others who cite establishment of the state-funded capital defender's offices, which operate on a budget of $3.5 million a year, as one of the reasons Virginia's death row has been steadily shrinking. "A capable and vigorous defense no doubt accounts — at least in part — for the increased willingness of prosecutors to resolve capital cases short of death," Douglass wrote.

UPDATE: Bill Otis via this post at Crime & Consequences provides some important corrections to the AP article linked and excerpted above.

May 4, 2015 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack