Tuesday, October 04, 2016

"The Original Meaning of 'Cruel'"

The title of this post is the title of this notable new article by John Stinneford now available via SSRN.  Here is the abstract:

This Article demonstrates that the word “cruel” in the Cruel and Unusual Punishments Clause means “unjustly harsh,” not “motivated by cruel intent.”  The word refers to the effect of the punishment, not the intent of the punisher.  In prior articles, I have shown that the word “unusual” means “contrary to long usage,” and thus a punishment is cruel and unusual if its effects are unjustly harsh in light of longstanding prior practice.

This Article solves several important problems plaguing the Supreme Court’s Eighth Amendment jurisprudence.  First, it clarifies the Eighth Amendment’s intent requirement.  To violate the Cruel and Unusual Punishments Clause, some government official must possess intent to punish but not necessarily intent to punish cruelly. Second, it demonstrates how to determine whether a given punishment is so harsh that it violates the Eighth Amendment.  The question is not whether a punishment is unjustly harsh in the abstract but whether it is unjustly harsh in comparison to the traditional punishment practices it has replaced.  Third, it shows how to sort between those unintended effects of punishment that may properly be considered part of the punishment and those that may not.  If a given punishment heightens the risk of severe, unjustified harm significantly beyond the baseline risk established by longstanding prior practice, it is cruel and unusual.  

Finally, this Article establishes that the core purpose of the Cruel and Unusual Punishments Clause is to prevent unjust suffering, not the coarsening of public sensibilities.  Historically, governmental efforts to protect public sensibilities by making punishment less transparent have increased the risk that the offender will experience undetected cruel suffering.  When the government undertakes such efforts, it should bear the burden to show that they do not significantly increase this risk.

The original meaning of the Cruel and Unusual Punishments Clause calls into question the constitutionality of several current punishment practices, including lengthy prison sentences for certain offenses, long-term solitary confinement, the three-drug lethal injection protocol, and certain prison conditions, to name a few.

October 4, 2016 in Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, October 03, 2016

Ohio planning to use new three-drug execution protocol to get its machinery of death operative in January 2017

Long-time readers and/or hard-core death penalty fans perhaps recall that my own great state of Ohio way back in Fall 2009, in the wake of some problems administering the then-universal three-drug lethal injection approach, pioneered a new one-drug execution protocol.  This one-drug approach to executions seemed to work reasonably well for the Buckeye state for a period, as the state completed 19 executions in the period from 2010 to 2013.  But when Ohio struggled to get the needed supply of the drug being used in its one-drug protocol, the state in January 2014 tried a two-drug approach that did not seem to work our so well (as reported in this prior post).

Since January 2014, Ohio has been a de facto death penalty moratorium state because Ohio Gov John Kasich repeatedly delayed a long list of scheduled executions while the state sought to figure out how best to acquire drugs for conducting lethal injections.  (During this period, the Ohio legislature enacted a law to shield the identity of some who helped the state move forward with executions (background here), and some advocates started calling for the state to consider nitrogen gas as an alternative way to carry out death sentences (details here).  But today, as this new AP article reports, Ohio has now revealed that it is planning to get its machinery of death up-and-running again come January 2017 by returning to a (new kind of) three-drug execution protocol.  Here are the details and context:

Ohio plans to resume executions in January with a new three-drug combination after an unofficial three-year moratorium blamed on shortages of lethal drugs, an attorney representing the state told a federal judge Monday.

Thomas Madden with the Ohio attorney general's office said the state will use the drugs midazolam, which puts the inmate to sleep; rocuronium bromide, which paralyzes the inmate; and potassium chloride, which stops the heart. He said the drugs are not compounded and are FDA approved. Madden told Columbus federal Judge Edmund Sargus that a new execution policy will be announced at the end of the week....

The development opens the way for the execution of Ronald Phillips for the rape and murder of his girlfriend's 3-year-old daughter in Akron in 1993. Ohio hasn't put anyone to death since January 2014, when Dennis McGuire repeatedly gasped and snorted during a 26-minute procedure using a never-before-tried two-drug combo.

The state also used midazolam in McGuire's execution, making it disappointing that Ohio would again turn to that drug, said Allen Bohnert, a federal public defender representing several death row inmates.

The state has more than two dozen inmates with firm execution dates sitting on death row, with executions scheduled out as far as October 2019.

After McGuire's execution, the longest ever in Ohio using lethal drugs, the prisons agency changed its policies to allow for single doses of two alternative drugs. Complicating matters, neither of those drugs — sodium thiopental and pentobarbital — is available in the United States after their manufacturers put them off-limits for executions. The state has unsuccessfully tried to find compounded or specially mixed versions.

Last year, Republican Gov. John Kasich ruled out looking for alternative methods, such as the firing squad or hanging. In 2014, Kasich signed a bill into law shielding the names of companies that provide the state with lethal injection drugs.

Supporters said such confidentiality is necessary to obtain supplies of the drugs, and the measure is needed to restart Ohio executions. Opponents said it was naive to think the bill could truly protect companies' names from being revealed.

In 2014, former federal Judge Gregory Frost sided with the state, saying the prisons agency's need to obtain the drugs outweighed concerns by death row inmates that the information was needed to meaningfully challenge the source of the drugs.

October 3, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Previewing the (very criminal) start of the new SCOTUS Term

As this October Term 2016 merits case list via SCOTUSblog highlights, six of the first seven cases that the Supreme Court has scheduled for oral argument to kick off its new season involve criminal justice issues.  And, with thanks again to the extraordinary work that SCOTUSblog always does to make it so much easier to keep up with all the Supreme Court action, here are links to case pages, issues and previews of the first two of the cases, which are to be heard on Tuesday:

Shaw v. United States: Whether, in the bank-fraud statute, 18 U.S.C. § 1344, subsection (1)’s “scheme to defraud a financial institution” requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner argued here.

Argument preview: Court to consider scope of federal bank-fraud statute


Bravo-Fernandez v. United States: Whether, under Ashe v. Swenson and Yeager v. United States, a vacated, unconstitutional conviction can cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause.

Argument preview: Double jeopardy opens the Term

And for those looking for more of an overview perspective on what the Justices might be doing in the criminal justice arena this Term, Andrew Cohen has this useful commentary over at the Brennan Center headlined "A Hindered Court Will Tweak Criminal Law."

October 3, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Dignity and the Death Penalty in the US Supreme Court"

The title of this post is the title of this new paper authored by Bharat Malkani now available via SSRN.  Here is the abstract:

The US Supreme Court has repeatedly invoked the idea of dignity in its Eighth Amendment jurisprudence, particularly in cases involving capital punishment.  However, it has never articulated a clear and consistent conception of dignity.  The first half of this paper examines the Court's inconsistent use, and highlights how various justices have used different conceptions of human dignity, communitarian dignity, and institutional dignity to uphold the constitutionality of capital punishment.  This stands in contrast to how foreign and international authorities have used the idea of dignity to advance abolition.

The second half of this paper uses the Supreme Court's own accounts of dignity, and philosophical approaches to dignity, to argue that respect for dignity must pull towards a finding that the death penalty is unconstitutional.  Respect for dignity, it is argued, requires a consideration of how human, communitarian, and institutional dignity inter-relate and inform one another.  For example, it makes little sense to examine the death penalty and the dignity of the legal system without considering the human dignity of the people involved in administering capital punishment.  When these three dignities are considered together, it becomes clear that the death penalty cannot comport with respect for dignity, as required by the Eighth Amendment.

October 3, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Prez Candidate Clinton promises “end to end reform in our criminal justice system — not half-measures, but full measures"

This new Politico article reports on the latest criminal justice reform promise by a vote-seeking politician under this full headline: "Clinton promises 'end to end' criminal justice reform in pitch to black voters: Visiting Charlotte less than two weeks after a controversial police shooting, the Democrat makes makes an appeal to the voters she needs to beat Donald Trump in North Carolina."  Here are excerpts from the piece:

In a humble church with a familiar name, Little Rock A.M.E. Zion, Hillary Clinton on Sunday made a passionate case for police reform and a direct appeal to the city's black voters, whose support she needs to win this swing state.

Less than two weeks after the death of Keith Lamont Scott, a black man killed by police, Clinton arrived here Sunday morning with a message of sympathy for a grieving community and political promises, including “end to end reform in our criminal justice system — not half-measures, but full measures.”

She acknowledged that when it comes to understanding the plight of black families in America, she will never be able to replicate the symbolic empathy of President Barack Obama. “I’m a grandmother, but my worries are not the same as black grandmothers who have different and deeper fears about the world that their grandchildren face,” Clinton said. “I wouldn’t be able to stand it if my grandchildren had to be scared and worried, the way too many children across our country feel right now."

Clinton’s visit to Charlotte was critical — she was so eager to visit that the campaign announced a trip last Sunday, when the city was still grappling with violent protests and looting. The trip was ultimately delayed by a week at the request of local lawmakers.  On Sunday, she was accompanied by her senior policy adviser Maya Harris, longtime aide Capricia Marshall and senior staffer Marlon Marshall, who is overseeing the campaign’s African-American outreach.

Clinton’s challenge in North Carolina, where current polls put her trailing Donald Trump by about 3 points, is boosting the African-American vote that landed Obama a victory in 2008, when he won a state that had gone to the Republican nominee in the previous seven presidential election cycles.  The key was Mecklenburg County, which includes the city of Charlotte, where Obama beat John McCain by more than 100,000 votes....

Clinton has spoken out on criminal justice reform and "systematic racism" consistently since she launched her campaign. But she is still struggling to inspire young black voters, who remain resistant to her message of reform and lack institutional loyalty to the Democratic Party....

In her remarks, Clinton was careful to couch her call for reforms with support for law and order. “We must not forget that violence has touched the lives of police officers,” she said.  “From Dallas to Baton Rouge to Philadelphia, the families of fallen officers have been dealt a great blow.”  But the focus of her address was to the hurting black community.  “We need to fix a system where too many black parents are taken from their kids and imprisoned for minor offenses,” she said.

October 3, 2016 in Campaign 2016 and sentencing issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Happy SCOTUS new year/Term ... which has already gotten started with more Johnson fall-out

Today is the always exciting first Monday in October, the traditional first day of a new Supreme Court Term.  But because today is also Rosh Hoshanah, the Justices are not hearing the first oral argument of the Term until tomorrow. (I suspect Justices Breyer, Ginsburg and Kagan are going to be partying like it is 5777, which is the year starting today.)

But, while I was spending all my extra time Friday focused on my favorite sporting event, the Supreme Court sort-of got off to a running start for the new Term by announcing Friday afternoon that the were going to review on the merits eight new cases. This SCOTUSblog posting provides details on all these new cases, and this pair should be of particular interest to criminal justice fans:

In Lynch v. Dimaya, the justices will consider whether, for purposes of federal immigration law, the general definition of a “crime of violence” is so vague that it is unconstitutional. In 2015, the court ruled in Johnson v. United States that the so-called “residual clause” in the Armed Career Criminal Act’s definition of “violent felony” was unconstitutionally vague. Relying on that decision, the 9th Circuit ruled that the definition of “crime of violence” suffers from the same problem as the ACCA’s residual clause, and the federal government asked the court to decide the issue. The government emphasized (among other things) that the text of the definition is quite different from that of the ACCA’s residual clause – as evidenced by the fact that it “has not generated the widespread confusion and interpretive failures that led this Court to invalidate the ACCA’s residual clause.”

Nelson v. Colorado is the case of two Colorado residents who were convicted and sent to prison; they were also ordered to pay restitution and a variety of fees. After their convictions were reversed on appeal, they unsuccessfully sought a refund of the money they had paid. The question before the court is the constitutionality of the state’s requirement that defendants whose convictions are reversed can obtain a refund only if they show, by clear and convincing evidence, that they are innocent. The former inmates argue that Colorado “appears to be the only state” that imposes such a requirement, and they add that the state has “no legitimate interest to keep money that rightly belongs to people whose convictions have been reversed.”

October 3, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Sunday, October 02, 2016

Untroubled by SCOTUS Hurst ruling, unanimous Alabama Supreme Court upholds state's capital punishment procedures

6a00d83451574769e201bb08b85699970d-320wiAs reported in this local article, headlined "Supreme Court of Alabama has unanimously upheld the state's capital murder sentencing scheme," a top state court has concluded that its capital punishment law is not to be consumed by the post-Hurst hydra.  "post-Hurst hydra"  (As regularly readers may recall, in this post not long after the Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe what I expected to become multi-headed, snake-like capital litigation as judges tried to make sense of what Hurst must mean for past, present and future cases.)  Here are the basics and the context for this significant ruling:

The Supreme Court of Alabama has unanimously upheld the state's capital murder sentencing scheme, which signifies Alabama as the last state in the country that allows for this type of scheme.  The ruling allows for judicial override, which means a judge can impose the death penalty even after a jury has recommended a lesser sentence.

This happened in Montgomery county in 2008, when Circuit Judge Truman Hobbs overrode a jury’s decision to sentence Mario Woodward to life in prison without the possibility of parole for killing Montgomery police officer Keith Houts.  After finding him guilty, the jury recommended life in prison without parole, “But Hobbs said the 34-year-old should die for killing Houts in September 2006,” the Advertiser reported at the time of the sentencing.

In March, Jefferson County Circuit Judge Tracie Todd ruled that the judicial override sentencing scheme was unconstitutional in light of Hurst v. Florida — a January U.S. Supreme Court decision stating that Florida’s sentencing scheme, which also incorporated a judicial override system, was unconstitutional.  Florida’s scheme left it to the judge to find the aggravating factors, not the jury.

The case that sparked Alabama's judicial override appellate process stems from a case involving four men who were charged with three capital murders.  Defense attorneys argued the men should be barred from receiving the death penalty based on that the Supreme Court of the United States' decision.

Todd ruled in their favor, which barred prosecutors from seeking the death penalty.  In her 28-page ruling, Todd called the judicial override practice a “life-to-death override epidemic” and questioned Alabama’s partisan judicial elections. “There is a time and place for diplomacy and subtlety,” Todd wrote. “That time and place has been expunged by the dire state of the justice system in Alabama.  It is clear, from here on the front line, that Alabama’s judiciary has unequivocally been hijacked by partisan interests and unlawful legislative neglect.”

Alabama Attorney General Luther Strange asked the Alabama Court of Criminal Appeals to vacate Todd’s order shortly after it was issued.  In June the Alabama Court of Criminal Appeals vacated her decision, stating that Alabama’s scheme differs from Florida’s because in Alabama the jury determines the aggravating factors before deciding the sentence.

Jerry Bohannon, one of the defendants challenging Alabama's sentencing scheme, subsequently petitioned for a writ of certiorari.  Upon review, Alabama Supreme Court Justices echoed points made by the Court of Criminal Appeals. "Because in Alabama a jury, not the judge, determines by a unanimous verdict the critical finding that an aggravating circumstance exists beyond a reasonable doubt to make a defendant death-eligible, Alabama's capital-sentencing scheme does not violate the Sixth Amendment," wrote acting Chief Justice Lyn Stuart....

Strange praised the court’s decision, stating “Today’s ruling is an important victory for victims and for criminal justice.  The Hurst ruling has no bearing whatsoever on the constitutionality of Alabama’s death penalty, which has been upheld numerous times.”  Since Hurst, The United States Supreme Court has told the Alabama Court of Criminal Appeals to reconsider appeals filed on behalf of at least three Alabama death row inmates.

The full opinion from the Alabama Supreme Court is available at this link. I would call it a near certainty that some Alabama death row defendants will continue to seek certiorari review based on Hurst, and I suspect SCOTUS review will eventually be more a question of when rather than whether.

October 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday election season democracy/freedom fun: guess the political speaker, the party and the context for a potent quotable about "the degenerate vote"

I love reading books about American political and social history, especially in the midst of of an yet another overwrought election season, and the one I am reading now had this remarkable quote that I just could not resist sharing as early voting begins in many jurisdictions for just the very latest and greatest "most important election of our lifetime."   When thinking about how best to share this quote, I figured it might be fun on this Sunday to encourage readers to try to guess who said the following, representing what party, and in what context.  The source of the quote will appear after the break, but here is first the potent quote:

"It is the degenerate vote that has in the past overwhelmed the liberties of free people.  And it is the degenerate vote in our big cities that is a menace to our institutions." 

This quote's repeated reference to the "degenerate vote" especially struck a chord with me in the wake of Hillary Clinton's infamous recent statement about half of Donald Trump's supporters being a "basket of deplorables."

But I also could not help but think about the on-going fight in Virginia over trying to have former felons enfranchised or national fights over voting rights to reflect another set of view on the potential harms of "the degenerate vote."

And, for a real hint about the context for the quote, readers might also consider my own research interests in how marijuana reform initiatives might be helping to turn out certain voters.

So, dear readers, before clicking through, perhaps comment on or at least think about who you think might be the political speaker, the party and the context for this potent quotable concerning "the degenerate vote."



HobsonAnswer: this quote is attributed, in the book I am now reading, to Richmond Pearson Hobson who was a United States Navy Rear Admiral and who served from 1907–1915 as a Democratic U.S. Representative from Alabama.  Rep Hobson was a decorated veteran of the Spanish–American War, and he is famous in part because, after being denied renomination in the 1914 Democratic primary, he became the only Congressman from the Deep South to vote for the (failed) women's suffrage bill in the 1915 lame-duck session of Congress.

As his vote for women's suffrage bill suggests, Hobson was not referencing women voters back a century ago when decrying "the degenerate vote."  Rather, Hobson was fond of using the term "degenerate" to reference those men who consumed alcohol, and he did so because he believed quite strongly that science proved that alcohol turned men into degenerates.  This perspective is on full display in this lengthy speech in support of alcohol prohibition delivered by Hobson 102 years ago on the floor of the US House of Representatives, where he explained his views and built the argument for a Prohibition amendment to the US constitution:

The first finding of science that alcohol is a protoplasmic poison and the second finding that it is an insidious, habit-forming drug, though of great importance, are as unimportant when compared with the third finding, that alcohol degenerates the character of men and tears down their spiritual nature.... Alcohol tears down the top part of the brain in a man, attacks certain tissues in an animal, certain cells in a flower. It has been established that whatever the line of a creature's evolution alcohol will attack that line. Every type and every species is evolving in building from generation to generation along some particular line. Man is evolving in the top part of the brain, the seat of the will power, the seat of the moral senses, and of the spiritual nature, the recognition of right and wrong, the consciousness of God and of duty and of brotherly love and of self-sacrifice.....

Science has thus demonstrated that alcohol is a protoplasmic poison, poisoning all living things; that alcohol is a habit-forming drug that shackles millions of our citizens and maintains slavery in our midst; that it lowers in a fearful way the standard of efficiency of the Nation, reducing enormously the national wealth, entailing startling burdens of taxation, encumbering the public with the care of crime, pauperism, and insanity; that it corrupts politics and public servants, corrupts the Government, corrupts the public morals, lowers terrifically the average standard of character of the citizenship, and undermines the liberties and institutions of the Nation; that it undermines and blights the home and the family, checks education, attacks the young when they are entitled to protection, undermines the public health, slaughtering, killing, and wounding our citizens many fold times more than war, pestilence, and famine combined; that it blights the progeny of the Nation, flooding the land with a horde of degenerates; that it strikes deadly blows at the life of the Nation itself and at the very life of the race, reversing the great evolutionary principles of nature and the purposes of the Almighty.

There can be but one verdict, and that is this great destroyer must be destroyed. The time is ripe for fulfillment. The present generation, the generation to which we belong, must cut this millstone of degeneracy from the neck of humanity....

To cure this organic disease we must have recourse to the organic law. The people themselves must act upon this question. A generation must be prevailed upon to place prohibition in their own constitutional law, and such a generation could be counted upon to keep it in the Constitution during its lifetime. The Liquor Trust of necessity would disintegrate. The youth would grow up sober. The final, scientific conclusion is that we must have constitutional prohibition, prohibiting only the sale, the manufacture for sale, and everything that pertains to the sale, and invoke the power of both Federal and State Governments for enforcement. The resolution is drawn to fill these requirements.

October 2, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (7)

Friday, September 30, 2016

Could major federal statutory sentencing reform happen ASAP if Democrats take back Senate this election cycle?

The question in the title of this post is prompted by this notable new Politico article headlined "Ryan, McConnell split on prospects of criminal justice reform." Here are excerpts (with one line emphasized with my comments to follow):

House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell were on opposite pages Thursday on the prospects of passing criminal justice reform — another hurdle facing proponents hoping to get a bill to the president’s desk this fall.

Speaking at a news conference, Ryan (R-Wis.) doubled down on his commitment to advance legislation to reduce nonviolent drug sentencing requirements once lawmakers return to Washington in November.  The issue is a top priority for Ryan personally — though his House GOP conference is lukewarm at best, with some members concerned about looking soft on crime.  “I think it’s good legislation, I think the time has come, and we’re going to advance this issue as far as we can,” Ryan said.

Just a few minutes before that on the other side of the Capitol, though, McConnell offered a much different take. “It’s very divisive in my conference,” the majority leader from Kentucky said. “I’ve got very, very smart capable people, without regard to ideology, who have very different views on that issue. Whether we can take something up that controversial in that limited amount of time available, I doubt.”

Criminal justice reform has pitted big-name conservatives like the Koch brothers who back the idea against law-and-order Republicans like Sens. Tom Cotton of Arkansas and Jeff Sessions of Alabama. It's unclear whether the political risk and calculation for Republicans will change after the election. Democrats broadly favor reform.

Ryan was bullish about getting it done. “We do know we have more work to do to talk to our members about the merits of criminal justice reform,” he said. “It’s very bipartisan and it's conservatives leading the charge on this: [Rep.] Raúl Labrador, [Sen.] Mike Lee, [Rep.] Bob Goodlatte. But there are a lot of our members who haven’t looked into the issue enough, and it’s those undecided members who have not formed opinions yet that we’re going to be communicating with in the weeks ahead.”

As indicated by the question in the title of this post and the sentence emphasized, I think the "political risk and calculation for Republicans will change" dramatically if (and only if) Democrats succeed in their effort to take back control of the US Senate. Specifically, and especially because House Speaker Paul Ryan continues to press his support for reform, I think Republicans in both the House and the Senate will come to see that their best chance to get a sentencing reform bill completed with only the terms GOP advocates most fully support will be in the lame duck session before Senate leadership transitions in 2017. (Indeed, if Dems win both the White House and take back the Senate in November, I think some current Dem supports of current bills might become the ones to resist lame-duck passage in the hope of developing and passing even more progressive reform in the next Congress.)

In other words, for those most deeply concerned and interested in seeking federal statutory sentencing reform, the outcome of Senate elections may be nearly as important or even more important than the Prez election.

September 30, 2016 in Campaign 2016 and sentencing issues, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (7)

Pew survey indicates "Support for death penalty lowest in more than four decades"

FT_16.09.29_deathpenaltyPartyThis new item from the Pew Research Center reports based on a new survey that "the share of Americans who support the death penalty for people convicted of murder is now at its lowest point in more than four decades."  Here is more:

Only about half of Americans (49%) now favor the death penalty for people convicted of murder, while 42% oppose it. Support has dropped 7 percentage points since March 2015, from 56%. Public support for capital punishment peaked in the mid-1990s, when eight-in-ten Americans (80% in 1994) favored the death penalty and fewer than two-in-ten were opposed (16%). Opposition to the death penalty is now the highest it has been since 1972.

Though support for the death penalty has declined across most groups, a Pew Research Center survey conducted Aug. 23-Sept. 2 among 1,201 adults finds that most Republicans continue to largely favor its use in cases of murder, while most Democrats oppose it. By more than two-to-one, more Republicans (72%) than Democrats (34%) currently favor the death penalty.

Two decades ago, when majorities in both parties favored the death penalty, the partisan gap was only 16 percentage points (87% of Republicans vs. 71% of Democrats). And, for the first time in decades, independents are as likely to oppose the use of the death penalty (45%) as they are to favor it (44%). The share of independents who support capital punishment has fallen 13 points since last year (from 57%)....

Even as support for the death penalty has declined across nearly all groups, demographic differences remain: Men are more likely to back the use of the death penalty than women, white Americans are more supportive than blacks and Hispanics, and attitudes on the issue also differ by age, education and along religious lines. More than half of men (55%) say they are in favor of the death penalty and 38% are opposed. Women’s views are more divided: 43% favor the death penalty, 45% oppose it.

A 57% majority of whites favor the death penalty for those convicted of murder (down from 63% last year). But blacks and Hispanics support it at much lower rates: Just 29% of blacks and 36% of Hispanics favor capital punishment.

There are only modest difference by age and education in support for the death penalty, with 18- to 29-year-olds somewhat less likely to support it (42% favor) than those in older age groups (51% of those 30 and older). Those without a college degree are more likely than those with at least a college degree to favor the use of the death penalty in cases of murder (51% vs. 43%).

White evangelical Protestants continue to back the use of the death penalty by a wide margin (69% favor, 26% oppose). White mainline Protestants also are substantially more likely to support (60%) than oppose (31%) the death penalty. But among Catholics and the religiously unaffiliated, opinion is more divided: 43% of Catholics favor capital punishment, while 46% oppose it. And while 50% of those who are religiously unaffiliated oppose the death penalty, 40% support it.

September 30, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Thursday, September 29, 2016

New HELP Act seemingly proposes death — and mandates LWOP — for spiked heroin dealing in every case in which "death or serious bodily injury results"

In this post yesterday I noted that Representative Tom Reed, who represents the 29th Congressional District of New York, last week introduced a bill (with four co-sponsors) that would respond to the current heroin epidemic by expanding the federal death penalty.  In that post, you can find Rep Reed's press release, headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," explaining the background and reasons for his proposal.

This morning, I found that this page at Congress.gov providing more information about the Help Ensure Lives are Protected (HELP) Act now has this link to the (quite short) text of Rep Reed's bill.  Somewhat disconcertingly, but not really all that surprisingly, the bill is written in a way that seems to mandate federal life without parole (and permits the death penalty) in any and every case in which any user of spiked heroin suffers even serious bodily injury and even if the person distributing the heroin does not know or even have any reason to know the heroin is spiked or that it could seriously injure a user.  

In other words, as I read the key text of the proposed HELP Act, this bill calls for holding any and all heroin distributors strictly and severely criminally liable for any and all serious injuries or deaths that result from a user ingesting spiked heroin.  This is because the HELP Act simply amends the "Penalties" provision of the Controlled Substances Act by adding "if the mixture or substance [of more than 100 grams] containing a detectable amount of heroin also contains a detectable amount of [spiked substance like fentanyl], and if death or serious bodily injury results from the use of such substance, such person shall be sentenced to life imprisonment or death."

Of course, the Supreme Court long ago concluded that the Eighth Amendment precludes even felony murderers from be subject to the death penalty unless and until it can be shown they were at least extremely reckless in the causing of a death.  Thus, because of constitutional limits, there is little chance this bill if enacted would end up sending lots of drug dealers to federal death row.  But, the Eighth Amendment was interpretted in 1991 to permit Michigan to mandatorily impose LWOP on adults for just the possession of a significant quantity of drugs.  Thus, if the HELP Act were to become law, there is a real reason to expect that a huge numbers of persons involved in heroin distribution throughout the US could soon be facing mandatory life sentences if anyone who gets a spiked drug gets seriously injured.

Prior related posts:

September 29, 2016 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Important review of the politics, power and personage surrounding US prosecutors

Infographic-1This lengthy new Fusion article, headlined "America's Prosecutor Problem: Prosecutors are more powerful than judges -- but the tough-on-crime stance they take to get elected multiplies racial injustices," brings an important empirical perspective to the story of American prosecutors and just who wields arguably the most power in modern criminal justice systems.  Here are excerpts:

Gordon Weekes describes a criminal case that landed on his desk this month in Fort Lauderdale, Florida: “An old lady comes out of her house and sees three or four kids in in her yard.”  She calls the police.  The kids scatter, but get caught. They’d climbed a fence to snag mangos from a tree.  One of the boys is charged with burglary.

“I suppose because he jumped the fence with an intent to take mangos, that it was a burglary,” muses Weekes, the chief assistant public defender in Broward County.  “But the kid is 13 years old -- and he didn’t even take a mango! The state attorney’s office is supposed to decide how to charge these cases. You would think they would go with the more appropriate charge, which is trespass. No -- they’re going with the more serious charge.”....

“Prosecutors have more power in this system than any judge, any supreme court, any police officer, or any attorney,” he says. They decide what charges to file -- “or more importantly, what charges not to file.”

Even as race and justice issues dominate national headlines, few media outlets have focused on the formidable power prosecutors wield. But they should.  Of the 2,437 elected prosecutors in America (at both the both federal and county levels), 79 percent were white men --- even though white men made up only 31 percent of the population, according to a 2014 report by the San Francisco-based nonprofit Women Donors Network.  That disparity, the report said, is a “structural flaw in the justice system” that has cascading effects -- like reducing accountability for police officers who shoot unarmed minorities.

As part of “Rigged,” our investigation into the dark side of modern-day electioneering, Fusion worked with Color of Change, another organization working on social justice issues, to collect and analyze data for every jurisdiction in America.

The results are stark: 93 percent of all prosecutors in the United States are white, though only 61 percent of the U.S. population is.  At the same time, there were 1,561,500 prisoners in state and federal prisons, according to the latest (2014) data from the Bureau of Justice Statistics, which noted that black men “were in state or federal facilities 3.8 to 10.5 times more often than white men.”  Fusion’s data supports what social justice activists have long maintained: At the local level, America’s justice system is disproportionately white-controlled, and disproportionately oriented toward punishing minorities.  There are no straightforward answers for how and why the disparity persists, but the data shows the disparity is real....

In many places in America, people of color represent a small share of the population, so it’s natural to assume that the overwhelming whiteness of US district attorneys is due to the whiteness of large swaths of the country. However, when Fusion analyzed the data, we found the imbalance persists even in communities of color:

  • In counties in the U.S. where people of color represent between 50% and 60% of the population, only 19% of prosecutors are prosecutors of color.
  • In counties where people of color represent between 80% and 90% percent of the population, only 53% of the prosecutors are prosecutors of color.
  • Only in places where 90% of the population are people of color does the prosecutor pool reflect the diversity of the community.
  • Overall, in the 276 counties in the U.S. where people of color represent the majority of the population, only 42%, or less than half, of the prosecutors in these counties are prosecutors of color.
  • Only in places where 90% of the population are people of color does the prosecutor pool reflect the diversity of the community....

Rashad Robinson, executive director of Color of Change, said that any prosecutor can be good or bad. The problem, he said, is that to get elected, they usually position themselves as “tough on crime” and make strong alliances with police. “They’re going into the job trying to get high conviction rates,” Robinson said. “They try to rack up as many convictions as possible, even though we a have mass incarceration problem.” What we really need, he says, is progressive prosecutors of any race who realize that “the prison-industrial complex has not made us safer.”

Indeed, Color of Change is tracking prosecutor elections and gathering data such as the number of times a prosecutor is elected, what party they represent, their race, gender, and whether they were appointed or ran unopposed. Of the 2,326 prosecutors elected to office as of 2016 and tracked by Color of Change, 72 percent -- 1,691 in all -- ran unopposed in their last election....

Many factors could contribute to the gap in the number of prosecutors of color who run for office. In the data that Color of Change collected, only 94 prosecutors of color were elected to office as of 2016. Of these, 60 ran unopposed in their last election, or 64 percent. Of the 2223 white prosecutors currently elected to office, 1627 or 73 percent ran unopposed. Although the percent of white incumbents who ran unopposed is slightly higher, there is not enough data to draw a conclusion primarily because there are so few prosecutors of color in office. Interestingly, three states (New Jersey, Connecticut and Alaska) appoint prosecutors. In these states, 32 percent of the prosecutors are people of color compared to just 4 percent of prosecutors who are elected. Color of Change hopes to track election outcomes over time in order to better understand what might be driving these differences.

After police arrest a person, the prosecutor and his/her staff of assistant attorneys make a host of decisions that can transform the life of the accused:

  • They can recommend whether the defendant should be released on bail, and can recommend a bail amount.
  • They can adjust the charges, making them more or less severe, felonies or misdemeanors.
  • They can decide whether a child is charged as a juvenile or an adult.
  • They can add or subtract counts.
  • They can also convene grand juries to determine which charges to pursue.
  • The prosecutor can also decide not to press charges at all.

“At any time, until a jury is sworn or a plea taken by the court, the state attorney can chose to drop the case,” said Gordon Weekes. “That is always their power, for many reasons: not enough evidence, it’s not in the interest of the public to go forward, there’s an alternative that better suited.”

Because laws outline recommended prison sentences, or even dictate mandatory minimum sentences for particular crimes, a prosecutor can have far more latitude over a defendant’s ultimate prison sentence than a judge, based solely on what charges are brought. For example, at the federal level, someone accused of a misdemeanor charge of possession of marijuana could be fined $1,000 and spend a year in jail. With felony charge of selling marijuana, the fine could be $250,000 and the sentence, five years in prison. Weekes notes that the stronger the threat of punishment, the more inclined a defendant might be to just plead guilty and end the case rather than incur lawyer fees and take up time as the case goes to trial.

In Broward County, Florida, the site of the mango crime, the state attorney is Michael Satz, who was elected to his role in 1976 and has won every election since. He is now 73 years old. On his website, Satz makes no secret of his mission. He brags that in 1992, he “achieved the highest total conviction rate for trials and guilty pleas in the state, a high standard his office works hard to maintain.”

Satz made his reputation for being tough on crime during the drug wars of the 1980s and 90s -- and, critics, say, that reputation was built the backs of minorities. “He’s sent thousands of people to prison on very, very minor drug offenses,” Weekes said. “There’s probably more drug crime occurring on college campuses, but no one is going to any college and kicking down the dorm room door to find a bong under the bed.

“He’s a very nice guy, but he’s lost in a different age and different time,” Weekes said of Satz. “Because he doesn’t have any true connection to people who are impoverished, who have had to struggle, he can’t relate to a lot of the people entering the criminal justice system. There is a lack of empathy that comes from that office -- and countless examples in the ways they choose to prosecute cases.”

September 29, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Wednesday, September 28, 2016

"The Case Against Prisons: Alternatives to imprisonment are working around the world — so why isn’t the United States on board?"

The title of this post is the headline of this lengthy new piece by Rebecca Gordon at The Nation (although the title is a bit misleading because the piece talks more about justice and punishment than about prisons). Here are excerpts:

This year, a brave New Jersey state senator, a Democrat, took on the pernicious problem of distracted walking. Faced with the fact that some people can’t tear themselves away from their smartphones long enough to get across a street in safety, Pamela Lampitt of Camden, New Jersey, proposed a law making it a crime to cross a street while texting. Violators would face a fine, and repeat violators up to 15 days in jail. Similar measures, says the Washington Post, have been proposed (though not passed) in Arkansas, Nevada, and New York. This May, a bill on the subject made it out of committee in Hawaii.

That’s right. In several states around the country, one response to people being struck by cars in intersections is to consider preemptively sending some of those prospective accident victims to jail. This would be funny, if it weren’t emblematic of something larger. We are living in a country where the solution to just about any social problem is to create a law against it, and then punish those who break it....

I’ve been teaching an ethics class at the University of San Francisco for years now, and at the start of every semester, I always ask my students this deceptively simple question: What’s your definition of justice?...

For most of my students – for most Americans in fact – justice means establishing the proper penalties for crimes committed. “Justice for me,” says one, “is defined by the punishment of wrongdoing.” Students may add that justice must be impartial, but their primary focus is always on retribution. “Justice,” as another put it, “is a rational judgment involving fairness in which the wrongdoer receives punishment deserving of his/her crime.”...

Often, when citing the sources of their beliefs about justice, students point to police procedurals like the now-elderly CSI and Law and Order franchises. These provide a sanitary model of justice, with generally tidy hour-long depictions of crime and punishment, of perps whose punishment is usually relatively swift and righteous.

Certainly, many of my students are aware that the U.S. criminal justice system falls far short of impartiality and fairness. Strangely, however, they seldom mention that this country has 2.2 million people in prison or jail; or that it imprisons the largest proportion of people in the world; or that, with 4% of the global population, it holds 22% of the world’s prisoners; or that these prisoners are disproportionately brown and black. Their concern is less about those who are in prison and perhaps shouldn’t be, than about those who are not in prison and ought to be.

They are (not unreasonably) offended when rich or otherwise privileged people avoid punishment for crimes that would send others to jail. At the height of the Great Recession, their focus was on the Wall Street bankers who escaped prosecution for their part in inflating the housing bubble that brought the global economy to its knees. This fall, for several of them, Exhibit A when it comes to justice denied is the case of former Stanford student Brock Turner, recently released after serving a mere three months for sexually assaulting an unconscious woman. They are (perhaps properly) outraged by what they perceive as a failure of justice in Turner’s case. But they are equally convinced of something I struggle with – that a harsher sentence for Turner would have been a step in the direction of making his victim whole faster. They are far more convinced than I am that punishment is always the best way for a community to hold responsible those who violate its rules and values....

Of course, the urge to extend punishment to every sort of socially disapproved behavior, including texting in a crosswalk, is hardly a new phenomenon. Since the founding of the United States, government at every level has tended to make unpopular behavior illegal. Just to name a few obvious examples of past prohibitions now likely to stop us in our tracks: at various times there have been laws against having sex outside marriage, distributing birth control, or marrying across races (as highlighted in the new movie Loving). In 1919, for instance, a constitutional amendment was ratified outlawing the making, shipping, or selling of alcohol (although it didn’t last long)....

It’s hard to imagine a justice system that doesn’t rely primarily on the threat of punishment when, for most Americans, no alternative is imaginable. But what if there were alternatives to keeping 2.2 million people in cages that didn’t make the rest of us less safe, that might actually improve our lives? Portugal has tried one such alternative. In 2001, as the Washington Post reported, that country “decriminalized the use of all drugs” and decided to treat drug addiction as a public health problem rather than a criminal matter. The results? Portugal now has close to the lowest rate of drug-induced deaths in Europe – three overdose deaths a year per million people. By comparison, at 45 deaths per million population, the United Kingdom’s rate is more than 14 times greater. In addition, HIV infections have also declined in Portugal, unlike, for example, in the rural United States where a heroin epidemic has the Centers for Disease Control and Prevention worried about the potential for skyrocketing infection rates.

All right, but drug use has often been called a “victimless” crime. Maybe it doesn’t make sense to lock up people who are really only hurting themselves. What about crimes like theft or assault, where the victims are other people? Isn’t punishment a social necessity then?

If you’d asked me that question a few years ago, I would probably have agreed that there are no alternatives to prosecution and punishment in response to such crimes. That was before I met Rachel Herzing, a community organizer who worked for the national prison-abolition group Critical Resistance for 15 years. I invited her to my classes to listen to my students talk about crime, policing, and punishment. She then asked them to imagine the impossible – other methods besides locking people up that a community could use to restore itself to wholeness.

This is the approach taken by the international movement for restorative justice. The Washington, D.C.-based Centre for Justice and Reconciliation describes it this way: “Restorative justice repairs the harm caused by crime. When victims, offenders, and community members meet to decide how to do that, the results can be transformational.”...

So the next time you find yourself thinking idly that there oughta be a law – against not giving up your seat on a bus to someone who needs it more, or playing loud music in a public place, or panhandling – stop for a moment and think again. Yes, such things can be unpleasant for other people, but maybe there’s a just alternative to punishing those who do them.

September 28, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers" ... UPDATE: With four co-sponsors

Current PortraitThis official press release from the offices of Representative Tom Reed, who represents the 29th Congressional District of New York, reports on the introduction of a bill that would respond to the current heroin epidemic by expanding the federal death penalty.  The press release is headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," and here are the details form the press release:

Tom Reed continued his fight against heroin and opioid abuse by offering a proposal which would toughen penalties for drug dealers that supply users with illicit substances that cause an overdose death. “We care about the families of every overdose victim in our community and the addicts that are struggling. We’ve held several roundtable discussions and heard directly from the parents who have lost children to opioids and heroin. It’s only right that we hold those responsible for harming our loved ones accountable,” said Reed.

The bill, known as the Help Ensure Lives are Protected (HELP) Act, would allow federal prosecutor expanded access to more severe penalties, including life in prison or the death penalty, when prosecuting certain criminal drug cases where prosecutors can connect an overdose death to the drug dealer that sold heroin laced with fentanyl.

The move comes in the wake of several roundtable discussions held by Reed throughout the region as well as the recent spike in overdoses directly related to fentanyl laced heroin. The number of deaths due to synthetic opioids, mainly Fentanyl, rose 80% between 2013 and 2014.

Fentanyl is extremely addictive substance, 100 times more powerful than morphine, which is often included in heroin without the user’s knowledge, to maximize the dealer’s profits. The substance is so potent that law enforcement officers are forced to wear level ‘A’ hazmat suits following raids and seizures to avoid coming in contact with it. These hazmat suits are the same kind worn by medical professionals combating Ebola.

Reed supported the Comprehensive Opioid Abuse Reduction Act which was signed into law in July. The law provides for new programs that offer prevention and treatment options for addicts by offering grants to states, and groups of states, to implement and expand access to these services. The government funding proposal, which is expected to pass the House later this week, will designate $37 million to these efforts.

Reed says his proposal will “bring balance to the approach” by providing law enforcement with additional options to aid prosecution.  “This is about justice for the victims and their families and giving our law enforcement and prosecutors the tools they need to stop the flow of these lethal substances into our communities,” said Reed.  The proposal was introduced late last week.

I cannot yet find the Help Ensure Lives are Protected (HELP) Act on-line, but I am very interested in seeing just how this bill seeks to apply and administer LWOP and the death penalty in this setting.

UPDATE I have found this page via Congress.gov providing more information about the HELP Act, which on that site goes by this description "H.R.6158 - To provide for enhanced penalties for certain offenses relating to controlled substances containing fentanyl, and for other purposes."  Unfortunately, that webpage does not yet have either the bill text or the a substantive summary, but the page does note that H.R.6158, the HELP Act, was introduced with these four other sponsors:

Rep. Yoho, Ted S. [R-FL-3]

Rep. LaMalfa, Doug [R-CA-1]

Rep. Flores, Bill [R-TX-17]

Rep. Chabot, Steve [R-OH-1]

September 28, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Tuesday, September 27, 2016

"Why Nobody's Talking About the Supreme Court"

The title of this post is the headline of this timely and interesting post-debate Bloomberg View piece by Noah Feldman. Here are excerpts:

The U.S. Supreme Court didn’t come up Monday in the first presidential debate, and so far, it hasn’t been an important campaign issue. Given the unprecedented vacancy during an election season, that seems weird. But there is an explanation: The election’s consequences for the court are asymmetrical for the two political parties.

If the Democrat, Hillary Clinton, is elected, it will change the court’s balance, either through the confirmation of President Barack Obama’s nominee, Judge Merrick Garland, in the lame-duck session or with the appointment of Garland or another liberal after she takes office.  If the Republican, Donald Trump, is elected, all he can do is replace the late Justice Antonin Scalia with another conservative. That won’t change the court’s political balance.  For that to happen, Trump would need Justice Ruth Bader Ginsburg or Justice Stephen Breyer to be unable to serve, which won’t happen voluntarily for either in the first four years of a Trump presidency.

The result of this asymmetry is that neither candidate has much reason to put the Supreme Court front and center.  Clinton can try to appeal to her base by promising to reshape the Supreme Court, which is an inspiring vision for some liberals, to be sure.  But it isn’t good politics for her to trumpet a liberal transformation of the court when she’s trying to win over the median voter, who may well be skeptical of more judicial activism.

What’s more, Clinton lacks a signature constitutional issue that would make liberals excited about a progressive majority.  That’s because much of the liberal constitutional agenda has been achieved in the last two years, courtesy of Justice Anthony Kennedy.  He wrote the gay-marriage decision in 2015. In 2016, he delivered an opinion protecting affirmative action in higher education. He also provided the deciding vote in the Texas abortion case, safeguarding the abortion right for another generation.  With these decisions, Kennedy effectively took away the sense of constitutional fear and desperation that might otherwise be haunting liberals alongside the possibility of a Trump presidency....

For Trump, the calculus is a little different.  He can’t credibly promise to be a change agent when it comes to Supreme Court appointments. All he can do is say he will hold the line by appointing a conservative -- and indeed he has by releasing the names of 21 possible nominees.  That might have been enough to win over Texas Senator Ted Cruz, if you take Cruz’s word for his flip-flop on endorsing Trump.  But Trump doesn’t really like to depict himself as a movement conservative trying to preserve the status quo. His message is all about how things are broken.  Even if he chose to say that the Supreme Court got it wrong on gay marriage, abortion rights and affirmative action, he can’t say that he would be able to appoint justices who would change those results.

Furthermore, diehard conservatives who care about the Supreme Court are sophisticated enough to understand that they’ve lost on the big-ticket issues that have mattered most to them over the last 20 years. They know the court won’t immediately reverse itself.  Activist legal conservatives are focused mostly on preserving religious liberty in the aftermath of the gay-marriage decision, a position that is essentially defensive and operates on the (correct) background assumption that the culture war has already been lost.

The upshot is that for Trump, making the Supreme Court an election issue doesn’t hold much appeal as a way to energize the right or to capture new voters from the center. He can certainly criticize the courts when it’s convenient, or dismiss their holdings as “anti-police” the way he did during the debate.  So don’t expect much more on the Supreme Court during this election season.  When the dust has settled, however, the Supreme Court will return to the front pages very quickly indeed, and the question of who will succeed Scalia will be one of the most pressing issues facing the new president, whoever it is.

As long-time readers know, and as this prior post explains, I would add to this analysis the important fact that Prez Obama picked a nominee that is a relative political "yawner" for both parties.  As I have explained before, I thought back in March and continue to think today that the current politics around SCOTUS would be much different if Prez Obama made a ground-breaking rather than just a moderate pick, and that would be especially so if he had selected the only woman of color who was seriously vetted for this open SCOTUS spot, US District Judge Ketanji Brown Jackson.  Though I dislike discussion that focus on "playing the race card" or "playing the gender card," I like to be honest when highlighting that it is the personnel and not just the politics at the heart of this "non-issue" reality. 

If the GOP Senate was blocking even a hearing for the first woman of color nominated to the Supreme Court, I am certain Clinton would now be seeking to appeal to her base (and also to moderates) by promising to not let the GOP Senate continue to push Judge Brown Jackson to the back of the bus.  Actually, I suspect Hillary Clinton may be much too cautious politically to actually try to play a race/gender card at the same time via a Rosa Parks reference, but I am certain some of her surrogates (as well as some Dems seeking to wins seats in the Senate) would not be afraid to make this kind of pitch.

Prior related posts on new SCOTUS nominee possibilities:

September 27, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (8)

House Speaker Paul Ryan reportedly still eager to push for federal criminal justice reform

This new Politico article , headlined "Ryan pushes sentencing reform in face of skeptical GOP," reports that a very important politician remains very committed to trying to move along federal sentencing reforms.  Here is how the piece starts:

House Speaker Paul Ryan is facing a major obstacle in his months-long quest to pass criminal justice reform: unenthused House Republicans still skittish about looking soft on crime.  The Wisconsin Republican for weeks has repeated his personal desire to move a bipartisan package that would include allowing well-behaved nonviolent prisoners to be eligible for early release and easing some drug-related sentencing requirements.

It would mark a major accomplishment for the speaker, and a chance for Republicans to show racial minorities they care about issues of social justice — plus a salient, positive message countering Donald Trump’s racially charged bid for the White House.

But the odds are decidedly long. With Trump advocating for controversial policies like systematic “stop and frisk,” and the protests in Charlotte, North Carolina, against police-involved shootings causing racial tensions to flare, Ryan’s conference is not eager to vote on the matter.  An internal GOP leadership “survey” last week taking House Republicans’ temperature on the issue showed that most members were lukewarm at best.

That means that if Ryan wants to make a push for criminal justice reform after the election, he will have his work cut out.  “It’s not an easy thing to make these reforms, and the [Judiciary] committee has taken some time doing it; now they’re taking time educating members on it,” Majority Leader Kevin McCarthy (R-Calif.) said Monday of a package of bills drafted by the Judiciary Committee.  “It is a priority for the speaker. There are concerns … so we’re getting all the questions answered.”

The Judiciary panel last year passed 11 bills to reform federal sentencing laws and improve the prison re-entry system. While the package would not eliminate mandatory minimum sentences, it would significantly reduce sentences for nonviolent drug offenders. It would also create a program to reduce recidivism rates.

The politics of criminal justice reform have soured for conservative supporters. Trump has warned repeatedly of dangerous, crime-ridden cities.  And the FBI on Monday released new statistics showing that murders increased 11 percent and violent crimes rose 4 percent in the U.S. last year.  Though the rates are still low by recent historical standards, it's enough to make law-and-order Republican lawmakers nervous.

While proponents argue that reform would go a long way toward easing racial tensions, opponents vow they’ll never vote against the recommendations of law enforcement during a time of unrest.  (Some Republican lawmakers worry that law enforcement could come out against the pitch, though many national police groups haven’t taken a position.)

Even if Ryan managed to get a bill through the House, the Senate and its 60-vote threshold could stop it in its tracks. Hawkish Republicans, including Sens. Tom Cotton of Arkansas and Jeff Sessions of Alabama, have been sounding the alarm against criminal justice reform.  Senate Majority Leader Mitch McConnell (R-Ky.) has shied from the matter because it divides his conference.  Democrats by and large support the reform proposals.

Sources familiar with Ryan’s thinking say he’s not ready to relent just yet because of the charged political environment.  While he wasn’t able to pass the Judiciary package in September as he originally hoped, Ryan is now eyeing the lame-duck session, by which time tensions might have eased.  “I’m trying to get criminal justice reform done this session of Congress,” Ryan said last week during a speech at the Economic Club of New York.  “That train is on the tracks, and I’m hoping we can get that done sooner rather than later.”

September 27, 2016 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Monday, September 26, 2016

"Ask the Candidates if They Are Ready to Legalize Marijuana — and, if Not, Why?"

The title of this post is the headline of this recent Nation piece, from which comes these excerpts:

Presidential debates, as organized by the lamentable Commission on Presidential Debates, are deliberately boring. Most of the questions asked of the candidates are little more than invitations to repeat their most shopworn talking points. And, worse yet, there has been a recent trend toward asking candidates to critique their opponents — literally asking for more of the talking-head punditry that extinguishes whatever enthusiasm might be generated by a clash of ideas.

What to do?  Why not ask Hillary Clinton and Donald Trump some pointed questions about legalizing marijuana? Arizona will be voting this fall on whether to legalize the possession and consumption of marijuana by persons who are 21 years of age or older. If passed, Proposition 205 (The Regulation and Taxation of Marijuana Act) would establish a Department of Marijuana Licenses and Control to regulate the cultivation, manufacturing, testing, transportation, and sale of marijuana....

While manufacturers of synthetic painkillers and other corporate interests oppose the measure, it has earned support from educators, physicians, public-health advocates and supporters of criminal-justice reform. Among the statements filed in support of a “yes” vote with the Arizona secretary of state is a reflection from a pair of retired Drug Enforcement Agency agents, Michael Capasso and Finn Selander....

So how about these two questions for Clinton and Trump:

1. Both of you have campaigned in Arizona, where polls suggest the presidential race is close. On the same November 8 ballot where voters will be asked to choose between your candidacies, they will also be asked whether they would like to legalize marijuana and establish a strictly regulated system for its cultivation, manufacturing, testing, transportation and sale. By this point, both of you should be well aware of the arguments for and against legalizing marijuana. If you were voting in Arizona, how would you cast your ballots: “yes” for legalization or “no” for continued prohibition?

2. If either or both of the candidates answer “no,” or try to waffle on the issue, read the statement from the retired DEA agents, and then ask: How do you respond to the arguments of people with experience, such as Agents Capasso and Selander, who write that prohibition doesn’t keep marijuana off our streets or decrease use but that it does does result in billions of dollars in profits flowing to drug cartels? Aren’t there sound domestic and foreign-policy arguments for legalization?

Yes, of course, Donald Trump might still argue that a wall would somehow solve every problem. Hillary Clinton might still try to suggest that settled issues need more study. (And viewers might really start to wish that Libertarian Gary Johnson and Green Jill Stein were on the stage to present alternative views.) But the debate about legalizing marijuana, which has for too long been neglected at the highest levels of American politics, would finally be given the hearing it deserves.

I really like this proposed framing of a marijuana reform question, although first-debate moderator Lester Holt could also find lots of ideas for other sharp marijuana reform questions from a number of these recent posts at Marijuana Law, Policy and Reform:

September 26, 2016 in Campaign 2016 and sentencing issues, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Sunday, September 25, 2016

"The Under-Policed"

The title of this post is the title of this interesting and provocative new essay authored by I. Bennett Capers now available via SSRN.  Here is the abstract:

While there is much to be said about the problem of mass incarceration and strategies for de-incarceration, the goal of this essay is to bring two things to the conversation. The first is to bring attention to the complex role misdemeanors play in compounding the problem of mass incarceration. The second is to call attention to race, but not in the usual way.

Usually, when we think of race and criminal justice, we think of racialized policing and the overrepresentation of racial minorities in jails and prisons. But what happens when we consider criminal justice not only as an issue of overcriminalization and overenforcement vis-à-vis racial minorities, but also as an issue of undercriminalization and underenforcement vis-à-vis non-minorities?

Put differently, in this time when we are again discussing white privilege and the hashtag #Crimingwhilewhite has become a phenomenon, are there advantages to talking about white privilege — or more generally, privilege — and criminal justice?  If there exists what Randall Kennedy calls a “racial tax,” are there benefits to asking who gets a “racial pass”? Are there advantages to talking about the under-policed?  Finally, how might those conversations impact the issue du jour, mass incarceration?  This essay concludes by offering some suggestions for reducing mass incarceration.

September 25, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (18)

Can and will California voters "save" the death penalty in the United States?

The quirky question in the title of this post is prompted by this lengthy new press article and its provocative headline: "Death penalty is dying across America. Will California save it?". Here are excerpts:

The last inmate executed in California was 76-year-old Clarence Ray Allen, legally blind and suffering from diabetes, who had his heart stopped with a lethal chemical cocktail as punishment for a triple homicide in Fresno he’d ordered from a Folsom Prison cell a quarter century earlier. It was more than a decade ago when Allen spoke his last words – “Hoka Hey, it’s a good day to die” – and the poisons flowed into his veins at San Quentin State Prison.

Now, with the death penalty dying across America, the nation is watching California as its voters weigh competing initiatives meant to either revive executions or abolish capital punishment. Several states in recent years ended their death penalties through court decisions or legislation, but California is a test of whether voters think executions are worth trying to save....

Proposition 62 on the November ballot would end the death penalty and convert the sentences to life without parole. Proposition 66 aims to speed up executions with – among other things – limits on appeals and deadlines on court rulings. Should both measures pass, the one with the most votes becomes law. California’s decision comes as the death penalty withers in the rest of the nation. There were 28 executions in America last year, the lowest number since the death penalty was reinstated in 1976, and a 70 percent decline from the peak in 1998.

Only six states had executions last year, most of them in the cotton belt. Even America’s execution capital of Texas is slowing down, with a 68 percent decline in inmates put to death over the past 15 years. A new Harvard University study found that just 16 counties in the U.S.’s 3,143 had imposed at least five death sentences since 2010. Supreme Court Justice Stephen Breyer noted last year that “the number of active death penalty counties is small and getting smaller.”

Reasons include legal challenges to death sentences, botched executions – including a 2011 Oklahoma injection where the condemned man writhed and moaned as it took him more than 40 minutes to die – difficulty obtaining lethal drugs from pharmaceutical companies reluctant to play a role in ending lives, and wrongful convictions. More than 150 people on death row nationwide have been exonerated since 1973, according to the Death Penalty Information Center, including three in California. Wrongful convictions doomed the death penalty in Illinois, which passed legislation to abolish it in 2011.

States are also balking at costs of a death penalty case and appeals. Lawmakers in conservative Nebraska voted to join the states shedding the death penalty last year, citing expenses and religious objections. The issue will go to Nebraska’s voters in a November referendum.

The death penalty is on hold in California, Arizona, Arkansas, Colorado, Kentucky, Louisiana, Montana, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania and Washington state as a result of legal challenges or moratoriums imposed by governors. Capital punishment has been abolished in eight other states over the past decade and is in limbo in Florida, which has the nation’s second-most-populous death row after California, following a Supreme Court decision striking down the state’s death penalty statute....

Sacramento County District Attorney Anne Marie Schubert said that regardless of what was happening in the rest of the nation she saw the death penalty as appropriate justice for the “worst of the worst” killers in California. “It’s a policy that Californians continue to support but they want the system fixed,” Schubert said.

?California voters supported keeping the death penalty in 2012 with 53 percent of the vote. Recent polling suggests this year’s initiative campaign to end capital punishment is struggling to win majority support. No state has repealed the death penalty by public vote since Oregon in 1964 – and voters there reinstated it in 1978. While courts and legislatures around the nation are abolishing capital punishment, when it goes to a public vote the hard line tends to have the advantage, said Franklin Zimring, a criminal justice expert at the University of California, Berkeley.

“The question is what do you do with the worst criminals you have?” Zimring said. “And if that ever becomes a question of sentiment the answer is boil them in oil.” California has the largest death row population in the Western Hemisphere, with 746 inmates who are sentenced to die. The nonpartisan Legislative Analyst’s Office estimates that eliminating California’s death penalty would save around $150 million a year, including reduced costs for trials and challenges to death sentences.

According to the study from Harvard’s Fair Punishment Project, five of the 16 U.S. counties in the U.S. that imposed at least five death sentences since 2010 are in Southern California – Kern, Los Angeles, Orange, Riverside and San Bernardino. Riverside County has become the nation’s leader in death sentences – with eight people sent to death row last year alone. Meanwhile, no one is actually being executed in California....

Cal-Berkeley’s Zimring predicts the initiative designed to speed executions in California will have minimal impact if it passes. The main result would be litigation and delay, he said, since the ballot measure has so many pieces open to challenge. That’s disputed by Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation in Sacramento. “The most important reforms of this carefully drafted initiative are virtually bulletproof,” he asserted.

September 25, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Saturday, September 24, 2016

"Originalism and the Criminal Law: Vindicating Justice Scalia's Jurisprudence ― And the Constitutution"

The title of this post is the title of this new paper authored by Adam Lamparello and Charles MacLean now available via SSRN. Here is the abstract (which unfortunately does not seem to flesh out the title or themes of the piece's focus on Justice Scalia's criminal jurisprudence):

Justice Scalia was not perfect — no one is — but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective — namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution — that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.”  Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. Greg Abbott said, an ‘unwavering defender of the written Constitution.’”

Justice Scalia’s frustration with the Court was certainly evident at times during his tenure, and understandably so.  In United States v. Windsor, Scalia lamented as follows: "We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better."

The above passage captures the essence of Justice Scalia’s philosophy, and the enduring legacy that will carry forward for many years after his death. At the end of the day, Justice Scalia, whether through well-reasoned decisions, blistering dissents, or witty comments at oral argument, spoke a truth that transcends time: “[m]ore important than your obligation to follow your conscience, or at least prior to it, is your obligation to form your conscience correctly.” And “[h]ave the courage to have your wisdom regarded as stupidity… and have the courage to suffer the contempt of the sophisticated world.” You will be missed, Justice Scalia. You left the Court — and the law — better than it was before you arrived.

September 24, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

US House passes significant update to federal Juvenile Justice and Delinquency Prevention Act

Though it now seems that major federal statutory sentencing reform remains dead at least until the election (as I had thought months ago), this Marshall Project piece highlights that some other federal criminal justice reform has been moving quietly forward.  Here are the details:

Even though the year began with strong bipartisan support for federal sentencing reform, no major changes to the criminal justice system have made it out of Congress thanks to a combination of legislative gridlock, election-year rhetoric about rising crime in some cities, and Republican reluctance to hand President Obama a major victory. But on Thursday, the House of Representatives quietly — and overwhelmingly — passed what might be the most significant justice reform measure to reach Obama in his tenure.

The bill is an update of the Juvenile Justice and Delinquency Prevention Act, which has been expired since 2007. It would withhold federal funding from states that hold minors in adult jails. Unlike previous versions of the law, the new bill would extend that protection to juveniles who have been charged with adult crimes but are still awaiting trial. The legislation would also ban states from locking up minors for so-called status offenses — things that are crimes only because of the age of the offender, such as truancy or breaking curfew.... “I’m delighted, but also optimistic,” said Rep. Bobby Scott (D-Va.), a lead sponsor of the bill. “Getting a law passed on justice issues — one that doesn’t go backward — has been a challenge, to say the least. But we ought to be able to conform the House and Senate versions and get this to the president” before his time in office runs out.

The Senate version of the bill has made it out of committee and has almost unanimous support. But it still faces an obstacle in Sen. Tom Cotton (R-Ark.), who has singlehandedly blocked the measure from being put to a quick voice vote. Cotton’s home state, Arkansas, locks up minors for running away and other status offenses at a disproportionately high rate, Mother Jones reported this week. A spokeswoman said Cotton is concerned the proposed law would erode the power of the bench. “It is prudent to allow states to determine if their judges — often in consultation with the parents and attorneys involved — should have the discretion to order secure confinement as a last-resort option,” Cotton spokeswoman Caroline Rabbitt said.

Sens. Charles Grassley (R-Iowa) and Sheldon Whitehouse (D-R.I.), the lead proponents of the bill on the Senate side, have been trying for months to reach a compromise with Cotton. If their effort fails, it would fall to Majority Leader Mitch McConnell (R-Ky.) to take up precious floor time — in a season devoted to reaching a spending deal and funding the fight against the Zika virus — with a debate and vote on the legislation.“Since it so closely resembles the Senate bill, Chairman Grassley is optimistic that it can be passed in the Senate,” said spokeswoman Beth Levine....

The JJDPA law has existed in various forms since 1974 and provides federal grants to states on the condition they adhere to several “core principles” for detaining youth: not in adult facilities, not for status offenses, and not in ways that impact different racial groups differently. But over time, loopholes have been added to the legislation, all of which the new, reauthorized bill aims to close.

States that do not want to comply with the new law, should it pass, could choose to forgo a portion of their federal funding, a modest $92 million per year to be shared across the country — assuming Congress agrees to appropriate the money. The bill also does not contain a key goal for reformers of the juvenile system: restricting the use of solitary confinement in youth prisons.

But the bill would require states to collect new data on racial disparities at every stage of the juvenile system and to present the federal government with a concrete plan for how they will address those divides. It would also require states to ensure that academic credits and transcripts are transferred, in a timely fashion, between schools and juvenile-detention facilities, and that children get full credit toward graduation for any schoolwork they completed while incarcerated. Finally, the legislation would ban the shackling of pregnant girls, provide funding for delinquency prevention and gang-intervention programs, and require states to report data on juvenile recidivism rates and other measures.

September 24, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, September 23, 2016

Eager to hear sharp suggestions for sharp Prez debate questions on criminal justice issues

Next week kicks off the Prez debate season, and I am certainly among the "yuge" number of folks really, really excited to see how Hillary Clinton and Donald Trump will perform and engage with the issues and each other on the big debate state starting on Monday.  Among the reasons I am so excited this season, beyond the obvious and diversely distinctive entertainment value of both candidates, is because it seems quite likely that criminal-justice-related issues will be major topics of discussion (especially, of course, with respect to immigration policy/enforcement and police/citizen encounters).

As readers know, I am regularly rooting for sentencing-specific (and/or "war on drugs/marijuana") topics to take center stage at debates, and I am regularly disappointed that these topics either fail to get raised or get raised in ways that make it too easy for the candidates to respond with only fuzzy rhetoric.  But now because Trump has made "law and order" a focal point of his recent campaign, and especially because both candidates have through the years made notable statements on topics ranging from the death penalty to mass incarceration to drug policy, I am yet again hopeful (though still not really optimistic) that the issues that consume this blog could be end up being discussed at some length and with some real bite at one or more of the coming debates.

Ever eager to help those with the challenging task of planning and moderating the coming debates, I am now eager to hear from readers in the comments throughout the weekend about what criminal justice issues they hope to see raised in the debates.  I would be especially eager, as the title of this post highlights, to read in the comments actual suggested questions that are crafted in sharp ways to try to help ensure the candidates cannot get away with fuzzy answers.   I genuinely doubt that the first debate moderator, Lester Holt, is a regular reader of the comment section of this blog, but you never know.

So, dear readers, my weekend challenge is to urge comment with some sharp suggestions for sharp Prez debate questions on criminal justice issues.

September 23, 2016 in Campaign 2016 and sentencing issues, Who Sentences? | Permalink | Comments (8)

Latest polling suggests California voters could benefit from more information about state's competing death penalty initiatives

This news report on the latest polling concerning the competing death penalty initiatives before voters this fall reinforces my sense that Californians could benefit from a lot more public discussion and debate over the state and possible fate of capital punishment there.  The news piece is headlined "Is a plan to end the death penalty on the ropes in California?," and here are the details (with my emphasis added):

A plurality of likely voters backs the latest ballot effort to repeal the death penalty in California and shutter the nation’s largest death row, but support remains below the 50 percent threshold needed, a new poll shows. The survey, completed jointly by the Field Poll and the Institute of Governmental Studies at UC Berkeley, found Proposition 62 ahead 48 to 37 percent, with 15 percent of likely voters undecided.

Meanwhile, barely a third (35 percent) support Proposition 66, a competing initiative aimed at expediting the death-penalty process. With 42 percent undecided, it appears far less familiar to voters.  Twenty-three percent are opposed.

The see-saw measures come four years after voters narrowly rejected Proposition 34, an initiative that would have replaced capital punishment with life in prison without parole. The Field Poll’s last survey of that measure, taken a week before the 2012 election, found it leading 45 to 38 percent.

Mark DiCamillo, director of the poll, said there are signs of encouragement for death-penalty opponents this time, despite hovering below a majority seven weeks before the Nov. 8 election. “This is not a bad-news poll for Prop. 62,” DiCamillo added....

Proposition 62 would replace death sentences with life in prison without the possibility of parole and apply retroactively to existing death sentences. Proposition 66 endeavors to speed up the process by requiring that appeals conclude within five years of sentencing. DiCamillo said there is “much greater confusion” about Proposition 66, adding, “Voters don’t fully understand what the impact is.” If both measures pass, the one with the most votes will prevail....

California’s last execution was in January 2006, with the state effectively halting executions over challenges to its lethal injection protocol.

Some of many prior related posts:

September 23, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Great new US Sentencing Commission report on "simple possession" federal drug cases raises array of hard follow-up questions

Simplepossession_coverI find crime and punishment data so interesting and so important in large part because (1) even seemingly basic and simple data often can only be fully understood after one takes time to examine closely the backstories that surround that data, and (2) only if and when a researcher or advocate has deep understanding of data can that person even start to appreciate all the challenging policy and practical questions that important data implicate.  These realities are on full display in the context of an interesting and important new report released this week by the US Sentencing Commission titled "Weighing the Charges: Simple Possession of Drugs in the Federal Criminal Justice System." Here is the introduction to the short report, which explains the notable backstories concerning a dramatic recent change in the number of federal "simple possession" cases:

The simple possession of illegal drugs is a criminal offense under federal law and in many state jurisdictions. The offense occurs “when someone has on his or her person, or available for his or her use, a small amount of an illegal substance for the purpose of consuming or using it but without the intent to sell or give it to anyone else.”

Simple drug possession is a misdemeanor under federal law which provides that an offender may be sentenced to a term of imprisonment of not more than one year, fined a minimum of $1,000, or both. However, if an offender is convicted of simple possession after a prior drug related offense has become final, the offender can be charged with a felony simple possession offense.

The number of federal offenders whose most serious offense was simple drug possession increased nearly 400 percent during the six-year period between fiscal years 2008 and 2013. A change of this magnitude over a relatively short period of time triggered further investigation into these cases using data on offender and offense characteristics routinely collected by the United States Sentencing Commission (“the Commission”), as well as additional data collected specifically for this project.

At first, this dramatic increase in the number of offenders sentenced for the simple possession of drugs seems to suggest a substantially increased focus on this offense by federal law enforcement personnel. Further analysis, however, does not support such a conclusion. A closer inspection of the data demonstrates that this increase is almost entirely attributable to a single drug type — marijuana — and to offenders who were arrested at or near the U.S./Mexico border (a group almost entirely composed of offenders from the District of Arizona). For simple possession of marijuana offenders arrested at locations other than the U.S./Mexico border, the median quantity of marijuana involved in the offense was 5.2 grams (0.2 ounces).  In contrast, the offense conduct of simple possession of marijuana offenders arrested at that border involved a median quantity of 22,000 grams (48.5 pounds or 776.0 ounces) — a quantity that appears in excess of a personal use quantity.

In other words, the USSC noticed data showing a huge increase in the charging of misdemeanor federal drug crimes, which at first might suggest a curious new commitment by federal prosecutors to pursue low-level drug offenders. But, upon closer examination, the USSC discovers that what is really going on is that a whole lot of (low-level?) drug traffickers (mules?) found with huge quantities of marijuana are having their cases prosecuted through "simple possession" charges even though that label hardly seems like a factually fitting description of their drug crimes.

I am extraordinarily pleased to see the USSC detailing and explaining this interesting new data trend, and I am extraordinarily interested to hear from readers as to whether they think federal prosecutors in border regions ought to be praised or pilloried for their new misdemeanor approach to dealing with marijuana offenders arrested at the border with an average of 50 pounds of mary jane. This USSC report not only documents one tangible way that state marijuana reforms would seem to be having a profound impact on how the federal government is now waging the so-called "war on weed," but it also prompts a lot of hard questions about whether the new behaviors by federal drug prosecutors are appropriate given the absence of any formal changes to federal drug laws.

September 23, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3)

Lots of notable new content worth checking out at the Collateral Consequences Resource Center

As regular readers know, I have made a habit of noting here some posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogosphere).  So... here are some recent posts of note from CCRC:

Major new federal awards support second chance advocacy

When does the Second Amendment protect a convicted person’s right to bear arms?

Felony Disenfranchisement: Setting the Record Straighter

Indiana courts interpret new expungement law

SUNY bans the box on admissions application

When collateral consequences drive the sentence: The David Becker case

Can the pardon power be revived through procedural reforms?

September 23, 2016 in Collateral consequences, Criminal Sentences Alternatives, Recommended reading, Who Sentences? | Permalink | Comments (0)

Thursday, September 22, 2016

What could it mean politically and practically if — or should I say when — sentencing reform really becomes a "Latino Issue"?

LatinosReportCoverThe question in the title of this post is prompted by this interesting new Atlantic piece/interview authored by Juleyka Lantigua-Williams and headlined "Criminal Justice Is Becoming a 'Latino Issue': Yet there’s still a great deal we don’t know about Latinos and the criminal justice system." Here is how the piece begins:

Immigration has been the signature issue of political campaigns that want to appeal to Latinos, a group that has grown to encompass 17 percent of the population. But the last few years have poked big holes in the idea that Latinos only care about immigration, showing that Latino voters also care about terrorism, social security, and the environment. A growing number of Latinos are also becoming concerned about criminal justice reform, as more join the call for systemic changes at the federal and state levels.

Latinos are overrepresented both among victims of violence and among those behind bars. Latinos under 30 are almost three times as likely to be homicide victims as whites the same age, according to the Tomás Rivera Policy Institute at USC. They are also more likely to be threatened or attacked with a gun. And when Latinos report crimes, the report is less likely to lead to an arrest than the same crimes do when the victims are white.

In a 2014 report, the Violence Policy Center gathered valuable information on the profiles of Latino victims of crime. The homicide rate is more than twice as high as that of whites, and homicide is the second-leading cause of death for Latinos 15 to 24 years old. About 41 percent of Latino homicide victims in 2011 were younger than 24. Among blacks, the rate was 40 percent, and among whites it was 22 percent. In prisons, 20 percent are Latino, according to the Department of Justice, which indicates that if current rates continue, one of every six Latino men can expect to spend time in jail over their lifetime.

Yet a great deal of data that would help policymakers and advocates understand Latinos’ relationship to law enforcement has yet to be collected — there is much more data about whites and blacks’ encounters with the criminal justice system. After hitting some dead-ends in my search for answers about Latinos’ perceptions of, and experiences with the penal institutions and law-enforcement authorities in the country, I reached out to Alex Piquero, a criminologist at the University of Texas, Dallas, with some of my most pressing questions. An abridged and edited version of our conversation follows.

Juleyka Lantigua-Williams: I’m trying to address the question of whether Latinos care enough, or care at all, or should care more about criminal justice reform. What’s your perspective on that?

Alex Piquero: There are two main things that the research evidence is very clear about. The first one is, unfortunately, we do not have a lot of information on Hispanics in the criminal justice system, in general, whether it’s their offending, whether it’s their perceptions of the system. That’s primarily because of the lack of data collection that has occurred in this country for over a hundred years.

We’re getting better, we’re now starting to collect that data. For example, the FBI started to collect that information with arrest statistics. Traditionally, most of the research on criminal justice issues, whether it’s looking at offending patterns or incarceration rates, or people’s perceptions about the criminal justice system and their experiences has been only focused on blacks and whites, because of data constraints. Now we’re starting to get a little bit of a picture with respect to Hispanic and Latino views.

Lantigua-Williams: What do you think has been the effect of this lack of data, specifically on Latinos?

Piquero: We just had no idea what Hispanics felt about with respect to the criminal justice system or their experiences. That’s been one of the very big limiting factors of that area of work, that’s really important to say because we don’t have fifty years of research on a topic like that, whereas we do with respect to whites and African Americans. That said, the most recent research is complicated because there’s a lot of variability within Hispanics.

Cubans, Puerto Ricans, Mexicans, Central Americans, they may not see and/or interpret the criminal justice system in the same way. Sometimes you’re going to see differences within the groups, but we have very little information, for example, on what Puerto Ricans think about the criminal justice system because, typically, those studies have always lumped together the various Hispanic groups. Now, that said, Hispanics care about the criminal justice system just as much as whites and African Americans do. They are interested in it, they have experiences about it, and I think Hispanics are no different from whites and African Americans in that they see needs for reform. There’s no perfect system, but there’s not a lot of variability with respect to what parts of the system they may want to see reformed.

September 22, 2016 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

"Under the Radar: Neuroimaging Evidence in the Criminal Courtroom"

The title of this post is the title of this notable (and quite lengthy) article available via SSRN authored by Lyn Gaudet and Gary Marchant. Here is the abstract (with one line emphasized therein for sentencing fans):

This Article analyzes court decisions in 361 criminal cases involving neuroimaging evidence through the end of 2015. There has been a steady upward trend in the number of criminal cases considering neuroimaging evidence with the number of reported decisions being the highest in the most recent period of 2013-2015. Neuroimaging evidence has been used in competency, guilt, and penalty phases of criminal trials, with the most efficacy being seen in the penalty phase, especially in capital cases.

In order to provide a helpful analysis of uses and trends of this specific type of evidence, this Article includes an identification of the specific neuroimaging modality used or requested in each case (CT, MRI, EEG, PET, SPECT), the reason for the request for neuroimaging, the legal argument involving the imaging data, and the court’s response. In addition, common concerns regarding the use of neuroimaging data are also addressed, including the complexity of the various techniques and analysis, individual variability of the brain, the time gap between scanning and the criminal act, and the ability to make statements about groups versus about one individual.

As supported by the trends demonstrated in this analysis, there has been a shift in recent years from discussion about whether neuroimaging evidence is relevant and admissible toward admissibility of this type of evidence and a focus on the substantive results and appropriate use of the neuroimaging data.

September 22, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Interesting account of how Mexico invests in keeping its homicidal citizens from being sentenced to death in the US

The Marshall Project has this interesting new article headlined "How Mexico Saves Its Citizens from the Death Penalty in the U.S.: A fund is designated to train, pay and advise American defense lawyers." Here are is how it gets started:

When the body of 25-year old Lesley Hope Plott was found lying in a ditch in Russellville, Ala., in February of 2013, police had little trouble zeroing in on a suspect: hours earlier, a nearby church’s security camera had recorded her being beaten and stabbed by her estranged husband, Angel Campos Nava.

Born in Mexico, Nava, 36, had come to the United States years earlier. He had already been convicted of assaulting Plott on two earlier occasions. A murder conviction could result in the death penalty. It was up to Rebecca Thomason, Nava’s lawyer, to convince the Franklin County district attorney to instead seek a life sentence, or, failing that, to convince a jury to spare his life. It didn’t help that Nava was undocumented, and they were in Alabama, a state with some of the harshest anti-immigration laws in the country.

Then, Thomason received a call offering her something few lawyers in death penalty cases get: money, training, and advice, courtesy of the Mexican government. Nava’s case had caught the attention of the Mexican Capital Legal Assistance Program, created by Mexican officials in 2000 to save the country’s citizens from execution in the United States.

One of the program’s chief purposes is to help defense attorneys construct a biography of the accused—to humanize them. Poverty, family dysfunction, and developmental disability are frequent themes in their clients’ lives. When presented as part of a defense, such themes can encourage mercy among jurors and dissuade them from handing down a death sentence.

To that end, the program arranges for lawyers to go to Mexico to track down school and hospital records and stories about their clients’ lives, either paying for their travel costs or advising them on how to request money from local courts. Under the program, Mexico pays American lawyers up to $220 an hour to track potential death penalty cases around the country—watching court decisions and news stories from the moment of arrest, all the way through the last minute scramble before an execution—and advise court-appointed lawyers like Thomason.

Since 2008, the program has provided these attorneys with an average annual budget of around $4 million to track as many as 135 cases at a time, according to the program’s filings with the Department of Justice.  That comes out to roughly $29,000 per case, per year.  By contrast, the Equal Justice Initiative, which represents numerous inmates on Alabama’s death row, has reported that many of them were sentenced to death after their attorneys’ fees were capped at $1,000 for out-of-court trial preparation.

September 22, 2016 in Death Penalty Reforms, Offender Characteristics, Sentencing around the world, Who Sentences? | Permalink | Comments (3)

Wednesday, September 21, 2016

Federal District Judge reasonably asks "What’s The Deal With White Guys And Child Porn?"

Long-time readers and federal district court aficionados likely know plenty about Senior United States District Judge Richard G. Kopf, a jurist who has never been afraid to say what he is thinking (and who's gotten in trouble a few times for that tendency). As evidenced by this new post at Mimesis Law, the judge has lately been giving thought to kiddie porn and the racial demographics of certain offender groups.  Here are excerpts:

In America, there is no doubt that in most circumstances being white (Caucasian in census terms) is a benefit.... But, at least in one category, it appears that being white is not a really good thing, but rather a predictor for the commission of horrible federal crimes. I refer to the production of child pornography.

The Sentencing Commission has told us that child porn consumers[* footnote] are “overwhelming white.” U.S. Sentencing Commission, Report to the Congress: Federal Child Pornography Offenses, ch. 11 at 308 n. 56 (Dec. 2012). The same thing is true for producers of child pornography. That is: "Production offenders, like non-production child pornography offenders, are a relatively homogenous group demographically compared to federal offenders generally. Among production offenders in fiscal year 2010, the overwhelming majority were male (97.0%), white (85.9%), and United States citizens (97.0%)."

Moreover, child porn producers were very different than the normal federal offender.  They were employed, relatively well-educated and came from a higher socio-economic background. To be specific, ... "like non-production offenders, production offenders on average occupy a higher socio-economic status than federal offenders generally. In fiscal year 2010, 87.7 percent of production offenders were high school graduates, and 46.7 percent had at least some college.  In fiscal 2010, among all federal offenders, the typical offender was not a high school graduate (51.4%), and only 19.9 percent of offenders had at least some college education.  There was a high degree of employment among child pornography production offenders at the time of their arrests.  Of the 197 production offenders sentenced in 2010 for which there was employment data, 76.1 percent were employed."

But in all probability, you don’t know what I mean, at least on a visceral level, by the words “child porn producer.”  So let me give you an example.  Be prepared to puke. The following is an accurate media summary of a child porn production case that started off in Michigan and landed on my docket as well because the united group of producers spanned our nation.

"A November arrest in a child porn case has led federal investigators to a larger ring of suspects accused of working together online to manipulate young girls into engaging in sexual acts on camera. A complaint against a California man filed in Detroit federal court Thursday revealed details of a disturbing and elaborate operation that sought to lure minors into video chatrooms where they would be urged to perform 'dares' while their images were recorded.... Federal investigators learned that members of the group served distinct roles that included 'hunters,' 'talkers,' 'loopers' and 'watchers'."

What happened to these young girls, mostly in their early teens, was horrendous.  Suffice it state that they were cajoled or trapped into violating themselves in the most sickening and humiliating of ways, in one case blackmailed to continue the abuse, and in another case permitted to harm herself for the pleasure of the observers.

My part of this case was simple.  The Nebraska white guy, who was 31, and a hardworking man, with post-secondary education, and respected member of his community, was confronted at his home by the FBI.  He told me that he was relieved when the feds came to the door because he didn’t know how to stop.  He immediately spilled his guts.  I accepted the Rule 11(c) (1) (C) plea agreement, containing an appeal waiver, and requiring me to sentence the defendant to 35 years in prison.  His Guideline range was life.

He was very smart to have accepted the deal because I would likely have imposed a life sentence.  Despite my reservations, I approved the plea agreement to avoid a trial with the kids being forced to testify.  I also sentenced him to a life of supervised release when he gets out of prison as an old man.  He was capable of making, and I required him to pay, a substantial amount of restitution to the children.

As I reflected on the above, I wondered about the word “thug” with all the racial freight that word carries.  I asked myself how I should describe these white child porn producers assuming I see no problem with the word “thug.”  Perhaps I could call them “white devils!”  Anyway, at this point I realized that my mind was wandering, so I returned to the essential question.

What the hell is wrong with white guys?

[* footnote] As I have previously noted in Fault Lines, I have some empathy for child porn consumers as opposed to child porn producers.  See here.

September 21, 2016 in Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)

Astute recognition that crime victims have to be integral part of effort to address modern mass incarceration

Greg Berman and Julian Adler have this important new commentary at The Crime Report headlined "Finding Common Cause: Victims and the Movement to Reduce Incarceration." Here are excerpts:

After more than a generation of punitive, “tough-on-crime” rhetoric and policymaking, there is now a fairly broad political consensus in the United States that we have gone too far in our use of incarceration.  Indeed, just a few weeks ago, the White House unveiled the Data-Driven Justice Initiative, a partnership of 67 jurisdictions — big and small, conservative and liberal — committed to using data to reduce incarceration.

The efforts to roll back mass incarceration are laudable, but they will not achieve lasting change if they do not figure out how to incorporate the perspectives of the justice system’s most vulnerable constituents: Victims of crime.

Victims of intimate partner violence in particular often feel sidelined by a criminal justice system that focuses almost exclusively on defendants. And make no mistake: Domestic violence represents a significant percentage of the cases in our criminal courts.  Current estimates show that approximately 10 million people are abused by an intimate partner in the U.S. each year — and this is almost certainly an undercount, given the hidden and unreported nature of a lot of abuse.

But it is not just the criminal justice system that pays short shrift to victims. Reformers do it, too. “Victims have been overlooked in this de-incarceration movement,” said Mai Fernandez, executive director of the National Center for Victims of Crime, in a recent interview with the Center for Court Innovation. Advocates concerned with reducing the use of incarceration typically argue that fewer defendants should be sent to jail or prison, and that there should be more community-based alternatives. Victim support organizations are, by definition, focused on crime victims’ safety. Historically, many have argued for increased accountability — including incarceration — for offenders, particularly in cases involving domestic violence.

Is it possible for victim advocates and jail reduction advocates to find common cause?  To begin to answer this question, the John D. and Catherine T. MacArthur Foundation and the Center for Court Innovation convened a roundtable with policymakers and practitioners from across the country, including judges, prosecutors, defense attorneys, victim advocates, and police officials. The roundtable highlighted a number of tensions.

One obvious tension is the potential conflict between protecting the safety of victims and protecting the constitutional rights of the accused. Many advocates believe that to better serve victims, courts should impose conditions of release—including stay-away orders, monitoring, and participation in specialized services — for domestic violence defendants who are out in the community pending trial. This idea runs up against the strong national push to reduce pretrial detention for those who have been accused—but not convicted — of criminal behavior.

As with much of American life, the challenge of racial, ethnic and gender disparity hangs over this conversation. Black and Latino communities have long histories of being over-policed and over-criminalized in the U.S. At the same time, these communities have been under-protected from the threat of victimization. History tells us that women of color are particularly vulnerable.

Many advocates of jail reduction place great faith in actuarial risk assessment instruments to determine who can be safely released while a case is pending.  But victim advocates are asking some hard questions about these tools: How accurate are they? What can a statistical analysis tell us about what any individual defendant might do?  And how well do risk tools take into account potential lethality?

“Domestic violence defendants are different,” argued Idaho judge James Cawthon in the roundtable. Indeed, there is plenty of evidence to suggest that the presence of a specifically targeted victim changes the equation when it comes to looking at the potential risk — and severity — of re-offending. While some jurisdictions have developed special risk assessment tools for domestic violence defendants, many have not.  In the days ahead, jail and prison reformers will have to wrestle with these and other challenges if they are to win the full-throated support of victim advocacy groups....

A strong body of opinion within the victims’ movement agrees the time has come to take a hard look at “right-sizing” incarceration, which involves figuring out who needs to be behind bars and who does not.  “It’s just simply not the case that all victims of violent crimes, and certainly not all victims of nonviolent crimes, seek a punitive punishment for the offender,” University of Miami law professor Donna Coker tells the Center for Court Innovation.  “What they frequently seek is some assurance that it won’t happen to them again and some assurance that it won’t happen to somebody else.”

Victim advocates and jail reduction proponents may not be able to agree on every issue. But in those areas where they have shared goals — improving the quality of risk assessment tools, reducing racial and gender disparities, and promoting trauma-informed care — they can serve as a powerful voice for change within our justice system.

September 21, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, September 20, 2016

"The Constitutional Right to Collateral Post-Conviction Review"

The title of this post is the title of this new and timely new article authored by Carlos Manuel Vazquez and Stephen Vladeck. Here is the abstract:

For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post-conviction habeas review all-but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding — for the first time — that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a state prisoner seeks retroactively to enforce a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.

On the surface, Montgomery held only that state courts are required to employ Teague’s retroactivity framework when and if they adjudicate habeas petitions relying on new substantive rules of federal law. But, in reaching that conclusion, the Court clarified that Teague’s holding that new substantive rules of federal law are retroactively applicable on collateral review was a constitutional one, a holding that, as we explain, was both novel and important.

We next consider which courts — state or federal — have the constitutional obligation to provide the constitutionally required collateral review recognized in Montgomery. Either way, the implications of Montgomery are far-reaching.  To conclude that the state courts must provide collateral review would run counter to the conventional wisdom that states are under no obligation to permit collateral attacks on convictions that have become final. On the other hand, the conclusion that federal courts must have jurisdiction to grant such collateral review is in significant tension with the Madisonian Compromise.  In our view, the Supreme Court’s Supremacy Clause jurisprudence establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts — even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims.  The state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction over such claims.  Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners.

Finally, we examine some of the important questions raised by the conclusion that state and federal prisoners have a constitutional right to collateral relief. Although the questions are complex, and not all of the answers are clear, the uncertainties surrounding some of the contours of the remedy recognized in Montgomery should not obscure the fact this seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review, a result that could have a breathtaking impact on both commentators’ and courts’ understanding of the relationship between collateral post-conviction remedies and the Constitution.

When I got involved in writing a little commentary about the Montgomery opinion earlier this year, Montgomery's Messy Trifecta, I came to see themes and language in the Montgomery opinion that struck me as very important and very ground-breaking.  Thus, I am especially pleased to discover that I am not the only one who believes (and arguably welcomes) the fact that a "seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review."

September 20, 2016 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

What should we make of why and how New Mexico's Gov is pushing hard to bring back the death penalty in her state?

One notable sentencing reform story in the United States over the last decade has been the growing number of states abolishing capital punishment legislatively while no new state has come to (or come back to) embrace the penalty.  Specifically, in the last decade, we have seen legislatures in New York, New Jersey, New Mexico, Illinois, Connecticut, Maryland and Nebraska take their machineries of death off-line.  (The 2015 Nebraska repeal, as regular readers know, might be reversed by voter referendum this November.) 

But as highlighted by this new AP article, headlined "New Mexico Governor Wants Vote on Reinstating Death Penalty," a notable chief executive is now making a notable hard push for bringing the death penalty back in her state.  Here are the latest details:

P>New Mexico Gov. Susana Martinez stepped up pressure on lawmakers Tuesday to consider reinstating the death penalty by promising to add the issue to a legislative agenda for a pending special session that was aimed solely at fixing the state's budget shortfall.

The second-term Republican governor said that she wants the death penalty as an option for convicted killers of police, children and corrections officers.  New Mexico repealed the death penalty in 2009 before Martinez took office by replacing provisions for lethal injection with a sentence of life in prison without parole.  The move by Martinez could compel lawmakers to take a public stand on capital punishment ahead of November elections for the Republican-controlled state House of Representatives and Democrat-dominated state Senate. 

"Cop killers and child murderers deserve the ultimate punishment," Martinez said in a written statement.  "If you kill an officer, you deserve the death penalty. If you kill a child, you deserve the death penalty.  It's time we say enough is enough."...

Her push to restore capital punishment follows the killings in southern New Mexico of two police officers in separate shootings in August and September by wanted fugitives, along with the horrific killing and dismemberment of a 10-year-old New Mexico girl in Albuquerque last month.

New Mexico executed nine men starting in 1933 until more than seven decades later when it abolished the death penalty.  The state's most recent execution in 2001 was its first since 1960.  Former Gov. Bill Richardson, a Democrat, cited flaws in how the death penalty was applied when he signed the legislation that abolished it.  He said the criminal justice system must be perfect if it will be used to put someone to death.

I presume Gov Martinez genuinely believes that justice demands the death penalty for cop killers and child killers (although her strong rhetoric makes me wonder if she shares GOP Prez nominee Donald Trump's view that we should have a mandatory capital punishment for cop killers as well as for child killers).  And yet, given the current timing of her push for bringing the death penalty back to New Mexico, I cannot help but wonder if Gov Martinez  (1) has some strong internal polling numbers suggesting citizens in the state also strongly favor a return of the death penalty, and (2) thinks that the death penalty can be an effective "wedge" issue for her to help get her preferred state legislative candidates elected this fall. 

September 20, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

"Lethally Deficient: Direct Appeals in Texas Death Penalty Cases"

Td2The title of this post is the title of this notable new lengthy report produced by the Texas Defender Service.  The start of this news release provides an overview of the report's contents:

Texas’ system of providing direct appeal representation in death penalty cases is in dire need of reform, according to a new report by Texas Defender Service.  The report, Lethally Deficient, evaluates six years of direct death penalty appeals and concludes that the current system is broken.  The Texas Legislature should, Texas Defender Service recommends, create a capital appellate defender office to handle these appeals, establish a statewide appointment system with caseload controls and uniform compensation, and require the appointment of two qualified lawyers to each death penalty direct appeal.

Lethally Deficient: Direct Appeals in Texas Death Penalty Cases is the first report to engage in an in-depth examination of direct appeals for Texas death penalty cases. Texas law requires all death sentences to be directly appealed from the trial court to the Texas Court of Criminal Appeals.  A direct appeal is based on the trial record and transcript.

“This report documents that, in case after case, most death row inmates are not well represented on direct appeal,” said Kathryn Kase, Executive Director of Texas Defender Service, a nonprofit law firm that works on capital cases and related criminal justice issues. “Texas should do what it did to address the crisis in capital habeas representation: create a public defender office that handles only direct death penalty appeals.”

TDS examined all direct appeals filed in each of the 84 death penalty cases decided by the Court of Criminal Appeals between January 1, 2009 and December 31, 2015.  The study uncovers multiple deficits in capital direct appeal representation. Lawyers submitted briefs that recycled failed legal arguments without updating to reflect current law, failed to meet — and at times, correspond with — their clients, failed to request oral argument, and avoided filing reply briefs and applications for U.S. Supreme Court review.  And while other jurisdictions reported attorneys needing between 500 and 1,000 hours to brief a capital direct appeal, defense lawyers for the cases in the TDS study billed between 72.1 to 535.0 hours for each appeal, for an average of only 275.9 hours.

In the six years – 2009 through 2015 – that these deficiencies occurred, TDS found that the CCA did not reverse a single conviction in a death penalty case on direct appeal.  The CCA affirmed convictions and death sentences in 79 cases, and reversed death sentences in just three cases.

When compared to capital litigants in other jurisdictions, Texas death penalty appellants fare far worse. Death row inmates outside Texas are 2.8 times more likely to have their cases reversed on direct appeal.  TDS reviewed 1,060 capital direct appeal decisions issued by the highest courts in the 30 other death penalty states between 2005 and 2015, and these courts collectively reversed 16.0% of all death sentences.  By contrast, the Texas Court of Criminal Appeals reversed just 5.7% of the death penalty cases heard on direct appeal between 2005 and 2015.

September 20, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Lots of notable new content worth checking out at Crime & Consequences

The students in my Sentencing Law and Policy course at The Ohio State University Moritz College of Law may already be getting tired of hearing me encourage them to regularly check out Crime & Consequences for another perspective on the issues we discuss in my class.  But as I was talking up a recent post there in class yesterday, I discovered that the C&C folks have recently added a lot of new content that merits highlighting here.  So....

In my class yesterday, I was trying to highlight the last of these listed posts as we were talking about whether and how you could argue to elected officials and voters that abolition of the death penalty would save significant monies within a jurisdiction. Perhaps unsurprisingly, as Kent at C&C highlights, folks advocating for death penalty abolition in Nebraska and elsewhere are eager to argue great savings from getting rid of the death penalty, but the numbers they promote as part of such a pitch are certainly contestable.

September 20, 2016 in Recommended reading, Who Sentences? | Permalink | Comments (1)

Do animal abuser registries make more or less sense than sex offender registries?

The question in the title of this post is prompted by this recent Washington Post piece headlined "Animal abusers are being registered like sex offenders in these jurisdictions." Here are excerpts:

Starting in November, convicted animal abusers in the county that includes Tampa will be easier to identify. Their names, photos and addresses will be published on a county-run website that is publicly searchable and similar to the online sex offender registries that have proliferated since the 1990s.

The animal abuser registry, passed last week by commissioners in Hillsborough County, is aimed at preventing people who have harmed animals from doing so again.  Retailers and shelters will be required to have prospective pet adopters or purchasers sign an affidavit saying they’re not on the registry.  Regular people seeking pet-sitters or new homes for their animals will be able to vet candidates. Law enforcement officials will, at least in theory, be able to keep tabs on offenders’ whereabouts.

The county is the latest in a tiny but growing group of U.S. jurisdictions to adopt such registries.  A handful of New York counties have them, as does New York City, although that one isn’t accessible to the public. Cook County, Ill., whose county seat is Chicago, recently decided to create one. Tennessee started the first statewide registry in January, although it still has just three people on its list.

“Just as we place extra trust in teachers and law enforcement, so, too, should we ensure that those engaged in the handling of animals have a spotless record,” New Jersey state Rep. Troy Singleton (D) said about legislation he sponsored to make his state home to the second statewide animal abuse registry. He referred to the idea as a “first line of defense.”

The registries are part of widening efforts in the United States to punish and track animal abusers, who, research has shown, commit violence against people at higher rates than normal. All 50 states now have felony provisions for the gravest crimes against animals, although many offenses are still considered misdemeanors. The FBI has added animal cruelty to its list of Class A felonies, and this year began collecting data for such crimes the way it does for other serious offenses, including homicide.

“Most owners consider their pets to be family members,” Kevin Beckner, the Hillsborough County commissioner who pushed for the registry, said in a statement.  “This Registry not only protects animals, but it can identify — and maybe even prevent — violence against humans, too.”

The registries have several limitations. For one thing, they’re local, not national, so a person with an animal cruelty record in Tampa wouldn’t be stopped from getting a cat in Miami. Most require the cooperation of offenders themselves, requiring them to register or face a fine.

And the tool is not without its detractors — some of whom include animal advocates.  The chair of the Hillsborough County’s Animal Advisory Committee called the registry there “not sufficient at all,” according to the Tampa Bay Times.  Retailers have protested the idea of putting salespeople in the position of saying no to potentially violent customers whose names pop up in an online search.  That concern led the Florida county to require stores and adoption shelters to procure only an affidavit, which can be checked against the registry — and passed along to authorities if there’s a match — after the customer leaves. But it has been dismissed elsewhere....

Among the skeptics is the Humane Society of the United States, whose president and chief executive, Wayne Pacelle, wrote in 2010 that the “overwhelming proportion of animal abuse is perpetrated by people who neglect their own animals” and are unlikely to commit violence against other people and pets.  “Such individuals would pose a lesser threat to animals in the future if they received comprehensive mental health counseling,” Pacelle wrote at the time.  “Shaming them with a public Internet profile is unlikely to affect their future behavior — except perhaps to isolate them further from society and promote increased distrust of authority figures trying to help them.”

A few prior related posts:

September 20, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13)

Sunday, September 18, 2016

"What Executioners Can — And Cannot — Teach Us About the Death Penalty"

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

Executioners and others who come into close proximity with the condemned often come to reject the death penalty. They reject it not only in individual cases, and not only on the ground that the death penalty is poorly implemented. They conclude that capital punishment is wrong.  I argue that the perspective of the executioner helps illuminate the debate about whether to abolish capital punishment, and raises the troubling possibility that support for the death penalty can survive only at a great remove.

The essay responds to a recent article by Jeffrie Murphy focusing on the question of whether executioners can take pride in their work. I contend that Murphy asks the wrong question, and that the better question is whether anyone ought to be asked to do such work.  On this latter question, the perspective of the executioner sheds important light.  Like Murphy, I draw on works by and about Albert Pierrepoint, the “last hangman” of Britain.  I also draw on the perspectives of numerous executioners, wardens, chaplains and other death row personnel.  I argue that their perspectives offer a powerful argument against the main rationale for the death penalty: retribution.  If retribution is keyed to the offender’s character as well as his wrongful act, then post-conviction character ought to matter.  The executioners’ accounts share a common theme: that death row inmates change over time and hold the potential for redemption.

September 18, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Saturday, September 17, 2016

Notable opposition to initiative seeking to enshrine the death penalty in Oklahoma's state constitutions

Two big substantive fights via voter initiative concerning the death penalty this fall are taking place in California and Nebraska. But this AP article highlights that Oklahoma voters are being presented with an important kind of stylistic question concerning capital punishment.  And, as the article explains under the headline "Oklahoma death penalty question faces bipartisan opposition," there is some notable disaffinity for its proposition. Here are the basic details:

A proposal to ask Oklahoma voters to enshrine the death penalty in the state’s nearly 100-year-old constitution sailed easily through the Legislature, but now is facing opposition from groups on opposite ends of the political spectrum.  In addition to various faith and civil rights organizations that traditionally oppose capital punishment, several conservative groups and the newly recognized Oklahoma Libertarian Party also are joining the fight against State Question 776.

“The conservative position is against the death penalty because it costs more than life (in prison), more than life without parole,” said Marc Hyden, national advocacy coordinator for Conservatives Concerned About the Death Penalty, one of several organizations that helped kick off rallies in Oklahoma City and Tulsa opposing the question. “Beyond that … we believe the founding fathers had the foresight to institute checks and balances, and this aims to subvert those checks and balances.”

A group opposing the state question — Say No To SQ 776 — has raised about $4,000, according to its most recent report with the Oklahoma Ethics Commission. There don’t appear to be any organized groups supporting the question.

The state question was sent to the voters through a resolution approved by the Legislature in 2015 following a botched execution and problems with the administration of lethal injection. Sponsored by two pro-death penalty lawmakers, it would ensure that death sentences would not be reduced if a method of execution is ever ruled invalid and gives the Legislature the explicit power to designate any method of execution not prohibited by the U.S. Constitution. It also states that the imposition of the death penalty will not be considered cruel and unusual punishment, which is currently prohibited under the Oklahoma Constitution.

Because the language would be added to the state constitution, it would also make it more difficult for the courts or future Oklahoma legislatures to eliminate the death penalty, said Rep. Mike Christian, a former highway patrolman who authored the bill. “It’s such a serious issue, we decided to put it in the Constitution,” said Christian, R-Oklahoma City. “I believe it will get overwhelming support. We thought we should put it in the constitution, just to send a message that we support it as a people.”

The measure passed 80-10 in the House and 44-0 in the Senate, receiving support from Democrats and Republicans. But since its passage, Oklahoma has continued to have problems administering lethal injections....

“If we cannot trust our state government to fund our schools, our hospitals, fund our infrastructure, how in the world can we continue to trust them to strap someone down on a table, put a needle in their arm and fill it full of poison until they’re dead,” said Ryan Kiesel, executive director of the Oklahoma Civil Liberties Union of Oklahoma. “We cannot continue to trust them to do that.”

September 17, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Friday, September 16, 2016

"What crimes warrant the death penalty? Depends on the prosecutor"

The title of this post is the headline of this new Los Angeles Times editorial, which gets started this way:

If the government is going to impose a punishment as medieval and irreversible as the death penalty, it should take pains to ensure that the penalty is invoked only for the most heinous crimes and that it is applied fairly and consistently.  Data compiled by the state attorney general’s office, however, suggest that California is falling short of those ideals because of the individual judgments of local prosecutors.

To be eligible for a death sentence in this state, a person must be convicted of first-degree murder enhanced by any one of about three dozen special circumstances — more than just about any other state (if California wants to reduce death sentences, it could start by reassessing these threshold crimes). There’s murder for hire.  Murder to silence a witness.  Killing a police officer.  Wrecking a train.  Using poison.  Murder, even, when killing wasn’t the intent but occurred during the commission of any of a dozen other crimes.  And on and on.

Who decides whether a murder case involves one of those special circumstances, and thus warrants the death penalty?  A jury, followed by the trial judge’s affirmation (a judge can reduce a death sentence, but not order one if the jury didn’t recommend it).  A jury, though, doesn’t consider a death sentence unless a prosecutor asks it to. And that’s one of the places where capital punishment is inherently inconsistent.  National studies have found that whether someone faces a death sentence depends significantly on the county in which the crime is committed because county-level prosecutors are the ones who decide whether to put the death penalty in play.  In fact, 2% of counties nationwide account for a majority of death sentences.

How inconsistent is application of the death penalty?  From 2011 to 2015, California juries handed down 74 death sentences, more than half from Los Angeles and Riverside counties, with 23 each.  Yet Riverside County is only one-quarter the size of Los Angeles County and had fewer than one-sixth of the homicides during that same time. Is the nature of homicide in Riverside that much more heinous than in Los Angeles County?  No.  The difference between the two counties lies in the makeup of the prosecutorial teams deciding whether to seek the death penalty, with the standard set by the elected district attorney.

Tellingly, there was a change in the Riverside district attorney’s office in January 2015, and the current top prosecutor, Mike Hestrin, has been less aggressive in pursuing the death penalty than his predecessor, Paul E. Zellerbach, who himself sought it less often than the D.A. he replaced.  Further evidence that individual prosecutors make a difference: Hestrin inherited 22 capital cases and, after reviewing them, dropped the death penalty against seven defendants.  So two different district attorneys, looking at the same seven cases, came to different conclusions on whether the crimes merited a death sentence.

Hestrin and others argue that county district attorneys represent the views of their constituents, which explains why liberal San Francisco County tends not to seek the death penalty and more conservative Riverside County does (of the 747 people on death row, one is a San Francisco County case compared with 89 from Riverside).  Yet that is one of the many grave flaws of capital punishment in general, and in California specifically.  Capital punishment is authorized only by state law, but there is no objective statewide standard against which factors are weighed and a decision is made.  It is unconscionable that the specifics of a crime are subordinate to a prosecutor’s whim in determining whether a death sentence will be sought.

September 16, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

GOP Congressman Sensenbrenner explains why federal criminal justice reform is necessary to fix a "broken system" which is "fiscally unsustainable" and "morally irresponsible"

Representative Jim Sensenbrenner has a long and dynamic history working on federal criminal justice issues, and not that long ago he was an ardent supporter of many mandatory minimum sentencing provisions.  But more recently, Rep Sensenbrenner has become a potent voice calling for federal reforms, and his latest pitch on that front appear in this new commentary headlined "Criminal Justice Reform Bills Are On The Table In Congress. Now It Needs To Pass Them."  Here are excerpts from this piece:

In 2013, House Judiciary Chairman Bob Goodlatte (R-VA) created the Over-criminalization Task Force which examined the depth, seriousness, and complexities of the problems facing our federal criminal justice system. The findings that came from the task force allowed Members on the Committee to identify key problem areas and begin the reform process.  Last year, momentum for criminal justice reform reached an all-time high. It united a wide range of law enforcement and political organizations, advocacy groups, and Congressional leaders under a common goal: to fix our broken system....

Although a large number the nation’s 2.3 million inmates deserve their place behind bars, too many low-level, non-violent individuals are caught up in broken system.  Their incarceration diverts limited resources away from other priorities, such as policing and the capture and punishment of violent and career criminals.  For too long, the pressing need for criminal justice reform has been put on the backburner.  It has led to increasing financial burdens on taxpayers, violent outbursts in economically depressed neighborhoods throughout the nation, and the breakdown of hundreds of thousands of American families.

Fifty percent of the current prison population suffers from substance abuse problems, mental health issues, or a combination of both.  Our criminal justice system is not equipped to provide these individuals with the help they need to gain control of their lives and acquire the critical work skills necessary to successfully re-enter society and the workforce.  Without these basic tools, the likelihood of recidivism is high....

Each piece of legislation currently on the table addresses specific problems in the current system and offers common sense, fiscally responsible solutions that will increase public safety, support law enforcement and victims of crime, and decrease the overwhelming financial burden on hardworking taxpayers.  However, none of it matters unless Congress is willing to pass legislation and President Obama is ready to sign it.

At the heart of federal criminal justice reform is the desire to create a better way forward for every American struggling under our broken system.  Families ripped apart by incarceration, communities divided by a seemingly impenetrable wall between law enforcement and the neighborhoods they protect, and an ineffective justice system not only weakens the fabric of society, but hinders economic growth and opportunity for all Americans.

Three years ago, Congress began a journey to rectify the injustices in our federal criminal justice system.  Right now, we have the opportunity to finish the job and pass meaningful and effective reform legislation. Our system cannot continue on its current trajectory.  It’s not only fiscally unsustainable, but morally irresponsible.  We must do better and we can do better.

 Prior recent posts regarding some federal CJ work and statements by Rep Sensenbrenner:

September 16, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Clarity in Criminal Law"

The title of this post is the title of this timely new article authored by Shon Hopwood now available via SSRN. Here is the abstract:

Over the past thirty years, thousands of new federal criminal laws have been enacted, many of which are unclear and leave prosecutors and courts to now define the boundaries of the criminal code.  Tolerating unclear laws in the criminal arena has always been problematic, but it is especially so in this era of overcriminalization and excessive punishment, where a lack of clarity can result in arbitrary application of criminal statutes and the sentencing consequences of a conviction are so severe.  Although several justices have noted the lack of clarity in the criminal law, the Court as a whole has not fully reacted.

This Article suggests what that reaction should be.  It argues for a more robust review of unclear federal criminal laws, using amplified versions of two tools already at the Court’s disposal: the rule of lenity and void for vagueness doctrine.  Employing those doctrines vigorously would, in effect, create a clear statement rule in criminal law.

September 16, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Detailing interesting sentencing dynamics in the latest batches of "term" commutations by Prez Obama

091416-Obama-commutations-online_1USA Today has this great new article highlighting an especially interesting aspect of the most recent clemency work by President Obama.  The piece is headlined "For Obama, a shift in clemency strategy," and here are excerpts:

For 126 federal inmates who received presidential clemency last month, the good news might have come with a dose of disappointment. President Obama had granted their requests for commutations, using his constitutional pardon power to shorten their sentences for drug offenses. But instead of releasing them, he left them with years — and in some cases, more than a decade — left to serve on their sentences.

As Obama has begun to grant commutations to inmates convicted of more serious crimes, Obama has increasingly commuted their sentences without immediately releasing them. These are what are known as "term" commutations, as opposed to the more common "time served" commutations, and they represent a remarkable departure from recent past practice. Unlike a full pardon, commutations shorten sentences but leave other consequences of the conviction in place.

A USA TODAY analysis of Obama's 673 commutations shows a marked change in strategy on his clemency initiative, one of the key criminal justice reform efforts of his presidency. Before last month, almost all of the inmates whose sentences were commuted were released within four months, just long enough for the Bureau of Prisons to arrange for court-supervised monitoring and other re-entry programs. But in the last two rounds of presidential clemency in August, 39% of commutations come with a long string attached: a year or more left to serve on the sentence.

The strategy has also allowed Obama to commute the sentences of even more serious offenders. Before last month, 13% of inmates receiving clemency had used a firearm in the offense. For those granted presidential mercy last month, it was 22%. Through lawyers in the Justice Department and the White House Counsel's Office, the president is effectively recalculating the sentences using the federal guidelines in effect today — as opposed to the harsher penalties mandated by Congress in the 1980s and '90s.

While previous presidents have granted term commutations on a case-by-case basis — President Bill Clinton required a Puerto Rican nationalist convicted of seditious conspiracy to serve five more years, and President Richard Nixon made a Washington, D.C. murderer serve another decade — Obama appears to be the first to employ them as a matter of policy. "There are a number of cases where it’s a genuine re-sentencing. It’s unprecedented,” said former pardon attorney Margaret Love, who served under Presidents George H.W. Bush and Clinton. “That signals to me that the power is being used in a way it’s never been used before.”

There may also be a political calculation to the new clemency strategy, reflecting a general understanding that there's no guarantee that a President Hillary Clinton or Donald Trump would continue Obama's signature clemency initiative. While it's not entirely settled, most scholars believe a commutation warrant cannot be revoked by a future president once it's granted, delivered and accepted.

Explaining his philosophy on commutation power at a press conference last month — the day after he set a single-day clemency record by granting 214 commutations — Obama gave the example of an inmate who has already served a 25-year sentence but would have only served 20 if sentenced under today's laws. "What we try to do is to screen through and find those individuals who have paid their debt to society, that have behaved themselves and tried to reform themselves while incarcerated, and we think have a good chance of being able to use that second chance well," he said.

But increasingly, recipients of Obama's mercy are years away from paying their debt to society.

White House Counsel Neil Eggleston, who's the last stop for a clemency application before it goes to the president, acknowledged the change in strategy on Aug. 3, the day Obama issued 214 commutations. "While some commutation recipients will begin to process out of federal custody immediately, others will serve more time," he wrote in a blog post. "While these term reductions will require applicants to serve additional time, it will also allow applicants to continue their rehabilitation by completing educational and self-improvement programming and to participate in drug or other counseling services."

Critics say Obama is no longer reserving his clemency power for extraordinary circumstances, but instead substituting his own judgment for that of Congress and the courts. "To impose these things, and to have the commutation take effect after he leaves office — and even after the presidency of someone who succeeds him — seems inappropriate to me," said Rep. Bob Goodlatte, R-Va., chairman of the House Judiciary Committee.

But Goodlatte also acknowledged that the power to "grant reprieves and pardons for offenses against the United States" is one of the Constitution's most ironclad powers, and amending the Constitution would be difficult....

"He has effectively set himself up as a judge, reviewing thousands of cases where they’ve been prosecuted, convicted, sentenced and appealed beyond the district court level. And he's undercut all that work by commuting their sentences," Goodlatte said. "I think the president is taking a misguided approach to this issue when he tries to set himself up as a super-judge who would oversee the actions of a separate branch of government."

Mary Price, who has represented drug offenders seeking presidential clemency, said the president is the only person who can act under present law. "In our system, there's a heavy emphasis on finality of judgment," said Price, chief counsel for Families Against Mandatory Minimums, which advocates for changes in drug laws. "The court has no jurisdiction to go back and change that sentence." For inmates with one or two years left on their Obama-shortened sentence, the president's clemency could motivating them to prepare for reentry into society, Price said. One drug treatment program gives inmates an additional year off their sentence if they complete it.

While Obama's re-sentencing strategy is a departure from recent practice, experts note that presidents have granted term commutations before. For example, any commutation of the death penalty to life imprisonment would fit the definition of that the Justice Department calls a "term commutation," as opposed to the more typical "time served" commutation.

And if recent presidents haven't done it that way, it's more because they've granted so few commutations to begin with. As the White House is quick to note, Obama has now commuted the sentences of more prisoners than the previous 10 presidents — that's Dwight Eisenhower through George W. Bush — combined. "Is Obama doing it at some unprecedented level? I don't know. Maybe," said P.S. Ruckman Jr., a political scientist who has analyzed data on presidential clemency back to George Washington. "But I am not so sure what to make of that either," he said. "That's what checks and balances are all about."

September 16, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, September 15, 2016

Interesting (and already dated) census of problem-solving courts from BJS

The Bureau of Justice Statistics just released this interesting new report titled Census of Problem-Solving Courts, 2012," and here are its identified " HIGHLIGHTS": „„

September 15, 2016 in Data on sentencing, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

"Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System"

The title of this post is the title of this intriguing article authored by Laura Appleman now available via SSRN. Here is the abstract:

Criminal justice debt has aggressively metastasized throughout the criminal system.  A bewildering array of fees, fines, court costs, non-payment penalties, and high interest rates have turned criminal process into a booming revenue center for state courts and corrections.  As criminal justice administrative costs have skyrocketed, the burden to fund the system has fallen largely on the system’s users, primarily poor or indigent, who often cannot pay their burden.

Unpaid criminal justice debt often leads to actual incarceration or substantial punitive fines, which turns rapidly into “punishment.” Such punishment at the hands of a court, bureaucracy, or private entity compromises the Sixth Amendment right to have all punishment imposed by a jury.  This Article explores the netherworld of criminal justice debt and analyzes implications for the Sixth Amendment jury trial right, offering a new way to attack the problem.  The specter of “cash-register justice,” which overwhelmingly affects the poor and dispossessed, perpetuates hidden inequities within the criminal justice system. I offer solutions rooted in Sixth Amendment jurisprudence.

September 15, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Grover Norquist and Wade Henderson say now is the time for federal statutory sentencing reform

This new National Review commentary authored by the notable pairing of Grover Norquist and Wade Henderson makes the case for having Congress finally getting sentencing reform to the desk of Prez Obama now.  The piece is headlined "No Better Time Than Now to Pass Justice Reform," and here are excerpts:

Picture this: a legislative reform initiative that has garnered more than 70 percent approval from both Democrats and Republicans in state after state. Imagine a package of reform bills that has brought together elected officials from the left and right and passed through House committee with near unanimous support. Now consider that the speaker of the House is the biggest champion of these bills.

What issue has brought together both ends of Pennsylvania Avenue and has civil-rights groups working with top prosecutors and law enforcement? Justice reform. And given all this success, you would say these policies have every chance of becoming law, right? It’s not that simple, but it should be.

In the months since bipartisan-backed sentencing- and prison-reform legislation was introduced in the House of Representatives, Congress managed to name about ten post offices, revised coastal-barrier boundaries, ordered the Mint to create commemorative coins, and adopted bison as the national mammal of the United States.

In the states during that time, Minnesota introduced and passed the most significant reforms to its drug laws in 30 years. These bills reduced mandatory minimums for low-level drug crimes and devoted greater resources to treatment instead of incarceration. Iowa took similar steps. Maryland repealed mandatory minimum sentences for nonviolent drug offenses. Even states with high incarceration rates took action. Oklahoma and Louisiana eliminated employment barriers for those with criminal records. And Kentucky passed one of the most aggressive expungement bills in the country that seals criminal records for certain offenses.

It’s time for Congress to act on justice reform. The states have proven that treatment and rehabilitation in lieu of incarceration can often provide better outcomes. Unnecessarily harsh sentences for nonviolent offenders do not make better citizens; they lead them to commit more offenses. We also know that the easier it is for someone who leaves incarceration to get a job, improve his education, and support his family, the better shot he has at turning away from crime altogether.

In an election year, real reforms can easily get jettisoned for campaign-trail antics. Yet we know justice reform makes for good politics as well as good policy. In polling in battleground states such as Florida, Nevada, Ohio, and North Carolina, support for reforms that would reduce mandatory minimum sentences and focus resources on rehabilitation ranges from the low 70s to the high 80s for both Republicans and Democrats. These numbers show that the risk lies not in supporting these reforms, but in opposing them.

When one in three American adults has a record, these issues are now affecting every corner of society. That explains why the diversity of support for justice reform spans the breadth and depth of our political ideologies. Whether it’s about redemption and second chances, as is the case for religious groups such as the Southern Baptist Convention, or about reducing the cost of an ineffective system, as is the case for Americans for Tax Reform and many other conservatives, millions of Americans from all different perspectives are getting behind this movement....

Our justice system should be a part of the solution to crime and its root causes. We can do better than using a one-size-fits-all sentencing regime that lumps nonviolent offenders with violent ones. And when some estimates have re-arrest rates for ex-offenders at 65 percent within three years, we cannot afford to continue the status quo. The reforms on the table would improve outcomes while ensuring that public safety is a top priority.

The best chance we have of passing this legislation is now. The political stars are aligned, and support for reform is at a zenith. We need our elected officials to seize this moment and pass legislation that saves money and makes us safer. Congress must not squander this opportunity.

September 15, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Wednesday, September 14, 2016

"Righting Wrongs: The Five-Year Groundswell of State Bans on Life Without Parole for Children"

The title of this post is the title of this new report from The Campaign for the Fair Sentencing of Youth.  Here is its "Executive Summary":

In just five years — from 2011 to 2016 — the number of states that ban death-in-prison sentences for children has more than tripled. In 2011, only five states did not permit children to be sentenced to life without parole. Remarkably, between 2013 and 2016, three states per year have eliminated life-without- parole as a sentencing option for children. Seventeen states now ban the sentence.

This rapid rate of change, with twelve states prohibiting the penalty in the last four years alone, represents a dramatic policy shift, and has been propelled in part by a growing understanding of children’s unique capacity for positive change. Several decades of scientific research into the adolescent brain and behavioral development have explained what every parent and grandparent already know — that a child’s neurological and decision-making capacity is not the same as those of an adult.  Adolescents have a neurological proclivity for risk-taking, making them more susceptible to peer pressure and contributing to their failure to appreciate long-term consequences.  At the same time, these developmental deficiencies mean that children’s personalities are not as fixed as adults, making them predisposed to maturation and rehabilitation.  In other words, children can and do change. In fact, research has found that most children grow out of their criminal behaviors by the time they reach adulthood.

Drawing in part from the scientific research, as well as several recent U.S. Supreme Court cases ruling that life-without-parole sentences violate the U.S. Constitution for the overwhelming majority of children, there is growing momentum across state legislatures to reform criminal sentencing laws to prohibit children from being sentenced to life without parole and to ensure that children are given meaningful opportunities to be released based on demonstrated growth and positive change.  This momentum has also been fueled by the examples set by formerly incarcerated individuals who were once convicted of serious crimes as children, but who are now free, contribute positively to their communities, and do not pose a risk to public safety.

In addition to the rapid rate of change, legislation banning life without parole for children is notable for the geographic, political, and cultural diversity of states passing these reforms, as well as the bipartisan nature in which bills have passed, and the overwhelming support within state legislatures.

Currently, Nevada, Utah, Montana, Wyoming, Colorado, South Dakota, Kansas, Kentucky, Iowa, Texas, West Virginia, Vermont, Alaska, Hawaii, Delaware, Connecticut, and Massachusetts all ban life without parole sentences for children. Additionally California, Florida, New York, New Jersey, and the District of Columbia ban life without parole for children in nearly all cases.

It is also important to note that three additional states — Maine, New Mexico, and Rhode Island — have never imposed a life-without-parole sentence on a child.  Several other states have not imposed the sentence on a child in the past five years, as states have moved away from this inappropriate sentence both in law and in practice.

September 14, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (13)

Why Oklahoma is having arguably the most important vote in Campaign 2016 for those concerned about criminal justice reforms

Logo Final (002)Though I am thoroughly depressed by my Presidential choices in Campaign 2016 (and remain distressing undecided about whether and how I will cast a top-of-the-ticket vote), I am thoroughly excited by all the interesting (and unpredictable) criminal justice reform initiatives that are going to voters in lots of states this November.  The highest-profile reform initiatives are probably those in five states seeking to legalize recreational marijuana and the handful of others seeking to legalize medical marijuana.  But also getting plenty of attention are the death penalty repeal/reform/retain votes that will take place in California and Nebraska.  But this new article from Fusion, headlined "Why Oklahoma activists are bringing criminal justice reforms directly to voters," helps spotlight why I think criminal justice reformers should really be paying extra attention to the Sooner State.  Here are excerpts:

Oklahomans will vote in November on two proposals that could significantly reduce the number of people sent to prison in one of the most incarcerating states in the country.  The measures, State Questions 780 and 781, would reclassify simple drug possession and property crimes under $1,000 from felonies to misdemeanors. Instead of prison time, people convicted of those crimes would receive drug treatment, mental health treatment, and rehabilitation programs that would be paid for by the savings from not locking them up.

Oklahoma has the second-highest incarceration rate in the country, after Louisiana, and its prisons are at 115% capacity. If the measures are approved by voters, they’re expected to reduce annual prison admissions by 25%, the rate of new inmates who are currently convicted of low-level property crimes and drug possession.  Because it costs Oklahoma $15,000 to incarcerate someone and only $6,000 to treat them while they’re on probation, the state could save between $30 and $40 million a year. Reducing the number of felonies would also mean less people would struggle to find employment, housing, and education because of a permanent criminal record. One in 12 state residents is a convicted felon, according to The Oklahoman newspaper.

Legislators and Governor Mary Fallin have already taken steps to reform the state’s criminal justice system, including lowering mandatory minimum sentences for drug crimes and raising the threshold for some property felonies to $1,000.  But Kris Steele, the former Republican Speaker of the State House and one of the referendums’ chief backers, said most legislators would be wary of being tarred as “soft on crime” if they passed broader reforms to drug laws.

“We want to sort of bypass the political gridlock that has set us back and give the people of Oklahoma a chance to weigh in on these issues,” he told me. “If we are successful in November, I truly believe the legislature will feel like the people have spoken and that it’s OK and probably even expected to take a smarter approach to criminal justice policy.” Of course, the opposite is also true.  “If these state questions do not pass in November, it’s likely that the legislature will interpret that result as the people have spoken and we’re probably done talking about this issue for the next 10 years,” he said. “That keeps me up at night.”

That makes it a high-risk, high-reward proposition for criminal justice activists, who so far have been mostly focused on lobbying legislators. The only other state with criminal justice reform on the ballot in November is California, where voters will decide whether to support a measure backed by Gov. Jerry Brown that would allow thousands of inmates serving time for nonviolent charges to get early parole. (Californians and Nebraskans will also vote on referendums over ending the death penalty.)...

Nationally, polls show that Americans support reforms to reduce sentences for low-level criminals, especially those convicted of drug crimes. Steele said internal polling has shown Oklahomans are also supportive of the measures.  The coalition of groups supporting the initiatives — known as Oklahomans for Criminal Justice Reform — includes the state branch of the American Civil Liberties Union, the conservative group Right on Crime, and several law enforcement leaders.  So far, supporters of the initiatives have collected 110,000 signatures to get each of the measures on the ballot and held a series of town hall meetings around the state promoting them. Now they’re planning direct mail and TV ads in the two months until election day....

There doesn’t seem to be any organized group opposing the measures, although some sheriffs and prosecutors have spoken out against them. The proposals’ supporters want “to let everybody out of prison, and that’s not what’s healthy for the communities,” Greg Mashburn, the DA for Cleveland County, told The Norman Transcript. Steele said he’d encourage activists in other states to take reform initiatives straight to the voters. “It’s resulted in a very healthy conversation happening in our state” about the costs of mass incarceration, he said—one that wouldn’t have happened otherwise.

For so many reasons, I think this direct democracy vote in Oklahoma could have profound echoes throughout the nation, especially if "deep red" Oklahoma voters, while mostly voting for "law and order" Prez candidate Donald Trump, end up voting for significant sentencing reform in the state.  Not only will approval of sentencing reforms by direct democracy likely make Oklahoma elected officials feel more comfortable moving forward with legislative reforms, I think it will send a very strong message to lots of political observers and policy advocates nationwide that the "Right on Crime" movement has real majority support among even conservative-minded voters.

Based on developments in many states and especially at the federal level, it still seems the reality that many politicians, especially older ones on both sides of the aisle, continue to believe quite strongly that vocally supporting significant criminal justice reforms risks a kind of political suicide.  That said, the recent modern success that "deep red states like Texas and Georgia have experienced with "smart-on-crime" reforms has played a major role in giving the "Right on Crime" movement momentum, and that momentum has carried over in a number of other red and purple states.  But at the federal law, persistent "soft-on-crime" political fears, especially among "old-guard" Democratic leaders like the Clintons and Senators Reid and Representative Pelosi, in my view largely explains why significant statutory sentencing reforms (other than the middling Fair Sentencing Act) have not gotten done throughout the Obama era.

Many people for sensible reasons think the fate of federal sentencing reforms now will turn on who is the next occupant in the Oval Office and who controls the Senate.  But I really believe that if Oklahoma voters end up significantly supporting sentencing reform in their state (especially if Trump wins in OK by, say, a 55/40 vote but then sentencing reform is supported by a 60/40 vote), we all can and should become a lot more optimistic about even federal sentencing reforms over the next decade no matter who is in control in DC.  For this reason (and others), I strongly believe that criminal-justice-reform-minded "big donors" — yes, I am talking to you Koch brothers and Mr. Soros — should think very seriously about devoting resources to this initiative campaign where a little extra campaign investment could go a very long way in fostering reform in a lot more places than just Oklahoma.

September 14, 2016 in Campaign 2016 and sentencing issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Highlighting polling reality that death penalty remains pretty popular on Left Coast

Ed Morrissey has this effective new commentary about the latest capital punishment polling under the heading "Hmmm: Blue California wants to keep its death penalty, 52/36." Here are excerpts (with a few links retained from the original):

California voters, among the most reliably liberal in the nation, have an opportunity to pass a repeal of the death penalty in November. Proposition 62 would commute the sentence of those on California’s Death Row to life without parole and require a higher percentage of inmate income to go to victim restitution.  With opposition to the death penalty a big progressive goal, and with California’s execution process among the slowest and most frustrating in the nation, one would expect overwhelming support for Proposition 62.

Not so, according to a new poll from Survey USA. In fact, opposition to repeal leads by sixteen points, 36/52, and leads among almost all demographics.  Majorities of both men (38/54) and women (33/50) oppose repeal.  Voters under the age of 35 oppose it in plurality (40/45), but all other age groups oppose it by majorities and double-digit gaps.  Black voters and Democrats support repeal, but not significantly enough to overcome overwhelming opposition among all other ethnic and partisan groups.  Perhaps most tellingly, the only ideological demo to support repeal are those who identify as “very liberal” — and even then unimpressively at 52/32.  Even the ultra-liberal Bay Area has a slight plurality opposed to repeal, 42/47....

The problem with the death penalty in California (besides the issues that form my general opposition to it) is that it’s almost purely academic.  California hasn’t executed anyone since 2006, and Clarence Ray Allen had been on Death Row for more than 23 years at that point.  That was the second-longest string for those who eventually got executed; Stanley “Tookie” Williams spent almost 25 years waiting for his execution, which finally came in December 2005.  They are two of only 13 inmates executed since the reinstatement of the death penalty in 1978.

How many are actually on Death Row now? The state’s September 2016 lists 747 inmates, with sentencing dates from 1982 to this past May.  Eight times more inmates have died of other causes (104) than of executions (13).

Death penalty proponents will also have a referendum on the November ballot. Proposition 66 would offer several reforms to speed up the execution process, including expediting all appeals to the state Supreme Court and having attorneys assigned to death-penalty appeals immediately. Presumably this will find more support than Proposition 62, although SUSA didn’t poll on it.  Will Californians take steps to fix its capital-punishment system — or be satisfied with a Death Row that just waits inmates to death?

September 14, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, September 13, 2016

Eleventh Circuit judges discuss guidelines and vagueness at great length after denying en banc review in Matchett

As regular readers should recall (and as I like to remind everyone), in this post right after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career-offender guideline of the US Sentencing Guidelines.  As I have noted before, the Justice Department has consistently conceded Johnson-based constitutional problems with that guideline, even though there was some prior rulings in some circuits that the federal guidelines could not be attacked based on traditional void-for-vagueness doctrines. 

In the last year, most of the circuit courts, perhaps moved a lot by DOJ 's view, have come to rule that vagueness challenges to the guidelines are proper and have concluded that there are Johnson-based constitutional problems with sentences based on the old career-offender guideline.  But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  

As I have previously noted, I consider the ruling Matchett suspect; but an amicus brief I helped put together urging en banc review in Matchett was not sufficiently convincing to that court.  Today, as revealed here, the Eleventh Circuit announced that a majority of its members voters against considering this issue en banc.  (For practical reasons, even though I disagree on the merits, this decision now makes sense: as blogged here this past June, we now have the ultimate judicial authority on this issue poised to weigh in:the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whetherJohnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.)

The actual order denying en banc review is only one-sentence long.  But following the order comes 80+ pages of fascinating concurring and dissenting opinions that will surely intrigue any and everyone closely following the legal and practical issues that Beckles implicates.  Highly recommended reading for all sentencing fans and law nerds.

September 13, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Fascinating pictures of "What It Looks Like to Be Behind Bars in Four Different Countries"

The quoted portion of this post title is drawn from the headline of this new Slate article providing something of a sneak-peak into what looks likely to be a very interesting book to look at.  Here is how the Slate article begins (though everyone should really click through to see some pictures that strike me as fascinating in so many ways):

After photographing civil servants in eight countries across five continents for his book, Bureaucratics, Jan Banning thought looking at criminal justice systems around the world seemed like a logical next step. In his new book, Law & Order: The World of Criminal Justice, which will be released in the United States this fall, the Dutch photographer brings readers up close to prisons, police, and courts in Colombia, France, Uganda, and the United States.

“I’m interested in these aspects of society that are vital but not necessarily considered to be picturesque,” he said. “Basically, it’s an attempt to visually cope with the question of how we handle crime. I think it always makes tremendous sense to compare different societies as I’ve done with Bureaucratics because, of course, in comparison, the character of a specific society comes out.”

After discussing which countries to focus on with the Max Planck Institute for Foreign and International Criminal Law, Banning started his investigation with a trip to Uganda in 2010. In about two weeks, he was given access to a handful of prisons, and on subsequent visits he was able to visit 10 prisons of various security levels. Even in maximum security establishments, his guide tended to be just a single unarmed warden or assistant, which was indicative of environments he found to be “rather friendly and rather humane.”

“In the beginning, I was a bit suspicious. I thought, ‘OK, maybe this is a PR exercise and they’re just doing this for me.’ But I noticed it in all 10 prisons I was in, and some were tiny local prisons where you wouldn’t expect the personnel to have any idea of PR. So I thought that was honest,” he said. “Of course, the prisons there are still not a place where you’d love to be. They’re overcrowded, half the prison population hasn’t been on trial, and some have been sitting there without charges for five or six years.”

Uganda’s open system allowed him to get some of the more colorful photographs in the book. In the United States, his visits were much more restricted. The prisons themselves, meanwhile, tended to be a lot less visually interesting than those in Uganda, but Banning said he embraced the sterility in his photographs and thought it was important to communicate it in “a fair and relevant way.”

September 13, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

"As Marijuana Prohibition Winds Down, What Will Control Freaks Ban Next?"

25621291The title of this post is the enjoyably provocative headline of this notable new Reason piece authored J.D. Tuccille.  Here are some excerpts which appeal to my libertarian instincts while also highlighting why I think much more that just the wicked weed is implicated in movements to reform modern marijuana laws:

As Prohibition, America's first national effort to penalize people for taking pleasure in imbibing psychoactive substances, became increasingly unpopular and widely flouted at the end of the 1920s, an assistant commissioner for the United States Bureau of Prohibition cooked up a successor project. Harry Anslinger left his old gig and took on the role of commissioner of the new Federal Bureau of Narcotics — a predecessor agency to the DEA — and helped launch the national crusade against marijuana. It was a newly demonized intoxicant to give purpose to the power and personnel that had been assembled for the faltering crusade against booze.

"This propitious marriage of state power and moral suasion would yield a dramatic expansion of federal policing and an increase of state and local policing in the quasi-military sphere of crime control," Harvard historian Lisa McGirr writes in her 2015 book, The War on Alcohol: Prohibition and the Rise of the American State. "The war on alcohol and the war on drugs were symbiotic campaigns," McGirr told Reason in an interview. "Those two campaigns emerged together, [and] they had the same shared...logic. Many of the same individuals were involved in both campaigns."

McGirr sees the "federal penal state" of intrusive policing and mass incarceration that arose during Prohibition as the result of the combined efforts of old-time religious scolds who disapproved of alcohol use and Progressives who were eager to use state power to address what they saw as social ills. Together they nationalized what had traditionally been an individual, local, or state concern, gave the government unprecedented power to regulate people's lives, and escalated their efforts as people refused to submit.

But even as it was a consequence of growing state power, Prohibition also helped to normalize the idea that the federal government could and should boss us around. "Faced with the unintended consequences of Prohibition, many men and women began to rethink their commitments to the war on alcohol, but they did not altogether reject the state's right to police and punish the use of other recreational narcotics," McGirr adds in her book.

People also grew accustomed to an activist and intrusive state overall, paving the way for the New Deal and the regulatory state of today. A massive government apparatus, once created, can be used for any purpose its masters desire. "War is the health of the state," Randolph Bourne famously noted. But war doesn't necessarily require ships and planes launched against other nations; it can be waged against a government's own people by police who are empowered by the law to see enemies behind every door.

Then as now, the law was unevenly enforced. If you were a New York socialite during Prohibition, you could continue to drink illicit booze at parties or in speakeasies in relative safety since you weren't considered part of a "problem" population and could push back against authorities — urban ethnics were deliberately targeted for harsher treatment when they broke the law, as were rural blacks. Likewise, Malia Obama was at little risk of more than a parental tongue-lashing when she was caught smoking a joint last month while young people — African-Americans, in particular — whose fathers don't reside in the White House often suffer nastier consequences in the absence of helpful political connections.

Even for booze, the double standard for enforcement remains. While mayor of New York City, national nanny Michael Bloomberg ceaselessly sought to mold and scold his own suffering subjects as he broke the law himself to quaff wine in public. "They were behaving," he said of his friends who were given a pass by police. He's not one of those people, you know, and so he and his buddies shouldn't have to obey rules meant to rein in "problem" groups.

So the desire to control remains in place, nurtured by policy-makers and their supporters who never intend themselves to be the target of enforcement. That desire remains even as public pushback causes yet another prohibition to stumble and fall.  Prohibition has its own logic — of control and power — that has very little to do with the specific prohibition at any given moment.  Those who would mold the world to suit their vision see no reason to back off their efforts, they've created a vast bureaucracy of enforcers who make their living pushing us around, and they've accustomed us to a state that pokes and prods us at every turn.

So celebrate the relegalization of marijuana for sure. Just don't convince yourself that it means we've seen the end of prohibition, or of the abuses that intrusive government brings. The next big prohibition might be kratom, or another drug, or a grab-bag of substances and activities of which our rulers disapprove.  What is banned matters less than the fact of the ban and the apparatus that keeps the ban in place.   Winning doesn't mean ending a prohibition, it means disempowering the prohibitionists.

In addition to providing an amusing post title, this commentary inspires me to remind readers once again that one way to keep up with marijuana prohibition winding down is to regularly read my Marijuana Law, Policy and Reform.  There you will find these recent posts, among many, many others:

September 13, 2016 in Drug Offense Sentencing, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)