Friday, May 13, 2016

Reviewing a notable week at Marijuana Law, Policy & Reform

Regular readers know they should be regularly checking out my blogging at Marijuana Law, Policy and Reform for updates on marijuana reform stories.  This past week, like most these days, included a number of notable developments highlighted in these posts: 

May 13, 2016 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

"Was 1960'S Liberalism the Cause of Today's Overincarceration Crisis?"

9780674737235The title of this post is the headline of this notable book review by Lauren-Brooke Eisen of the Brennan Center for Justice of this notable new book by Elizabeth Hinton "From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America." Here is how the review starts and concludes:

The statistics are stunning.  This very second, more than 2.2 million people sit behind bars in America.  To put this into perspective, the United States is home to the largest prison system on the planet. But corrections today encompasses more than just metal bars.  An estimated 6,851,000 people are under some sort of correctional supervision, such as probation or electronic monitoring. If you do the math, it’s about one in 36 adults.  The racial disparities are striking: according to the Sentencing Project, one in every 10 African-American men in his thirties is in prison or jail on any given day.

Elizabeth Hinton, professor of history and African American studies at Harvard University, examines how mass incarceration happened in America in her new book, appropriately titled From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America. Hinton’s approach is novel.  Most criminal justice experts cite President Ronald Reagan’s War on Crime as the driver for today’s current levels of incarceration.  Hinton argues that President Lyndon Johnson’s Great Society policies — which aimed at improving conditions for the most impoverished Americans — laid the foundation for mass incarceration and its attendant racial injustices. Reagan’s policies, she says, were merely “the fulfillment of federal crime control priorities that stemmed initially from one of the most idealistic enterprises in American history during the era of civil rights.”

This may be a surprising claim, but it is not a unique one: there are a growing number of academics today who are blaming liberals for creating mass incarceration and for the sizable racial disparities that exist in the justice system. Naomi Murakawa, political scientist and associate professor of African American studies at Princeton, made this argument in her recent book The First Civil Right: How Liberals Built Prison America.  Murakawa points to federal legislation written by liberals to reduce discretion in sentencing and parole.  The liberals’ goal was to avoid racially disparate punishment — judges, they argued, generally used their discretion in ways that hurt racial minorities.  Time has shown, however, that reducing judicial discretion only resulted in more racial disparities, as African-Americans ended up spending more time in prison as a result.

University of Pennsylvania professor of political science Marie Gottschalk, made a similar case in her 2015 book Caught: The Prison State and the Lockdown of American Politics.  Gottshalk contends that African-American advocacy groups have not always led the way in criminal justice reform and have in fact, at various points in history, supported measures that created more punitive criminal justice policies that have harmed African-Americans.  She notes that the majority of the Congressional Black Caucus supported the Anti-Drug Abuse Act of 1986, a law that notoriously, and controversially, punished crack cocaine use (a crime African-Americans are more likely to be convicted of) 100 times more harshly than powder cocaine use (which skews more white).

Building on this theme, Hinton’s well-researched book is filled with historical anecdotes painting a colorful picture of the nation’s persistent struggle with crime since President Johnson coined the phrase “War on Crime” more than fifty years ago.  A year before President Johnson declared this war, Congress passed his Economic Opportunity Act of 1964, which Hinton calls “the most ambitious social welfare program in the history of the United States."  The Economic Opportunity Act, which invested almost $1 billion in fighting poverty, would prove to be one of the most important parts of President Johnson’s War on Poverty, and his larger Great Society initiative, in which billions of dollars were spent on dozens of antipoverty programs. Hinton, however, criticizes President Johnson for not spending more money on job creation measures and revamping public schools in poor, urban areas.  What came next, in her opinion, set the stage for decades of punitive measures that ultimately resulted in today’s phenomenon of mass incarceration....

From the War on Poverty to the War on Crime is smart, engaging, and well-argued.  Its one flaw, however, is that it does not adequately recognize that many of the policies it criticizes, with 50 years of hindsight, were well-intentioned at the time – and, their implications for criminal justice aside, did a great deal of good.  It is not until the very end of the book — pages 335 and 340 to be exact — that Hinton throws some morsels of recognition their way, conceding that these policies may have been “a product of their time” and that there are “questions of intent”.  But the concession is a grudging one — Hinton writes that these questions of intent “are only relevant to a certain extent” as the real issue is to “uncover the series of decisions that made contemporary mass incarceration possible.”

The last 50 years have brought valuable research about crime, evidence-based programs, and how to improve the lives many Americans through education, community support, and mental health and drug treatment services.  To give short shrift to the well-meaning efforts of so many of the nation’s academics, researchers, and policymakers is an unfortunate blind spot in an otherwise well-researched and provocative analysis of the causes of our mass incarceration crisis.

May 13, 2016 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Assailing the former drug czars for "their demagoguery" and "fact-free fearmongering"

Earlier this week I posted this commentary arguing against federal statutory sentencing reform headlined "Drug dealing is a violent crime" and authored by William J. Bennett, the director of drug control policy for President George H. W. Bush, and John P. Walters, the director of drug control policy for President George W. Bush. Now I see that Kevin Ring, Vice President of Families Against Mandatory Minimums, has this new Daily Caller commentary in response headlined "Drugs Czars Peddle Fear." Here are excerpts:

Harry Anslinger, the first commissioner of the Federal Bureau of Narcotics, once offered his insight into America’s nascent drug problem: “There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers.  Their Satanic music, jazz and swing, result from marijuana usage.  It’s easy to laugh off Anslinger’s ignorant comments because they were made in another era. But recent claims from two other former drug czars are similarly anachronistic and wrongheaded.

William Bennett and John Walters, who served as drug czars for Presidents George H.W. Bush and George W. Bush, respectively, wrote in a recent Washington Examiner op-ed, “Considering all that America knows about drug addiction, only the dishonest or willfully blind can claim that drug trafficking is a non-violent crime.”  But who’s being dishonest? After all, words have meanings. “Violent,” for example, means to use physical force to do harm.  Yet Bennett and Walters would like people to believe that Debi Campbell, a drug addict herself who sold drugs to buyers in other states through the mail, was violent.  Campbell’s most violent act was opening an envelope, yet she served 17 years in federal prison. Stephanie Nodd was sentenced to 30 years in federal prison for helping a friend sell drugs for one month. Stephanie was just 23 years old and had never lifted a finger against any person. Neither Campbell nor Nodd could by any conceivable measure be considered “violent” criminals.  Bennett and Walters don’t want you to know they exist. But they do, and there are thousands more just like them.

Indeed, the U.S. Sentencing Commission found that of the 22,000 federal drug offenders sentenced in fiscal 2104, only 142 — or 0.7 percent — used actual violence or threats of violence. 84 percent neither used nor had a weapon during the commission of their offense.  And while Bennett and Walters are correct that most federal drug offenders are not college kids who were caught smoking a joint, they mislead readers when they describe them as “experienced traffickers.”  Nine out of ten federal drug offenders played no leadership or management role.  Many sold drugs solely for the purpose of feeding their own addiction.  Again, words mean things.  Pretending every drug sale is by definition an act of “violent victimization” is simply false....

One wonders if Bennett and Walters realize how increasingly out of step they are with conservatives across the country. Conservative governors and state lawmakers are utilizing evidence-based solutions to reduce crime and bloated prison budgets, a win-win situation for taxpayers.  Many conservatives in Washington, including Senators Ted Cruz (R-TX), Mike Lee (R-UT), and Jeff Flake (R-AZ) support sentencing reform. Cruz has written, “Harsh mandatory minimum sentences for nonviolent drug crimes have contributed to prison overpopulation and are both unfair and ineffective relative to the public expense and human costs of years-long incarceration.”

But, the old drug czars say, “The cost of incarcerating drug dealers is small compared to the true cost of their crimes to society.” Even if that’s true, it’s irrelevant. The choice before Congress is not between incarcerating drug offenders and doing nothing. The more important question is whether sentencing flexibility for drug crimes can more effectively reduce recidivism — and at less cost to taxpayers — than harsh mandatory minimums.  The indisputable answer, based on decades of states’ experiences, is yes.

Refusing to let any tragedy go to waste, Bennett and Walters suggest that the frightening increase in heroin overdoses is further evidence of the need for tough drug sentencing laws.  What they fail to mention is that heroin dealers are already subject to stiff mandatory minimum sentences and have been for the past 30 years.  This heroin epidemic is occurring under the regime Bennett and Walters helped to create.  If that were not damning enough to their case, consider that the rate of illegal drug use by teenagers is the same today as it was when Bennett quit as drug czar in 1988.

I know that Bennett and Walters are genuinely concerned about making the country safer.  And I agree with them that drug dealing is reprehensible and deserving of swift and certain punishment.  Too often, however, their demagoguery appears calculated to exploit the public’s fears about safety the way Harry Anslinger exploited its racial prejudices decades ago.  Conservatives interested in reducing crime and drug abuse should ignore fact-free fearmongering and support reforms that are rooted in science, evidence, and experience.

Prior related post:

May 13, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Thursday, May 12, 2016

An effective accounting of why "Sentencing Reform is Seriously Stuck"

The quoted portion of the title of this post is from the headline of this effective new Roll Call commentary authored by David Hawkings, and it carries this astute subheadline "Presidential politics, poison pills and attack ads threaten hopes for bipartisan accord." Here are excerpts:

For more than 18 months, a rewrite of laws governing federal criminal punishments has been touted as the exception that was going to prove the rule: An effort that had so galvanized both conservatives and liberals that it would become one of the few memorable policy achievements of the current Congress.  Well, the rule has held true about the deadlocked-by-polarization Capitol becoming only more so in the sessions before a presidential election. But the exception, by fits and starts, is growing ever less likely to be exceptional.

“Sentencing reform,” as it’s known on the Hill, is seriously stuck.  On the surface, it may not appear that way.  Just offstage, there’s a fundamental impasse that looks as if it can only be broken if one sitde caves in, thereby imperiling the highly unusual bipartisan coalition that has been the issue’s signature feature.

Complicating matters further, there are solid presidential and congressional campaign rationales for a deal, but also political arguments in opposition being at least as forcefully expressed. All this is on clearest display in the Senate, where the legislation looks to be riding a little wave of momentum but may be close to publicly coming off the rails – buffeted by anxieties about Willie Horton on the right and anger at Wall Street greed on the left....

[T]here’s a decent chance the [latest revised sentencing reform] bill will come to the floor this summer, assuming the appropriations process inevitably seizes up and there no longer is the need to devote the Senate’s time to spending bills.

Along the way, the measure is going to face one assault from powerful Republicans determined to kill it outright, and another from Republicans willing to love it to death. Ted Cruz of Texas, who returned to the Capitol this week vowing to press ahead with the combative outsider tone of his presidential campaign, and Jeff Sessions of Alabama, the first senator to endorse de facto GOP nominee Donald Trump, are leading the lambasting of the bill as going way too soft on crime.

A floor debate would give Cruz an opportunity to put his scorched-earth style for opposing legislation back on C-SPAN display.  And though Trump has not taken an explicit position on the bill, his many authoritarian statements suggest he’ll take Sessions’ advice and come out emphatically against it – especially if his likely opponent, Hillary Clinton, who’s become newly critical of “mass incarceration,” decides to endorse the bill. So it’s quite easy to envision law-and-order groups producing 30-second TV spots, evocative of the legendary Willie Horton ad from the 1988 presidential campaign, chiding even the GOP backers of the bill as pro-drug-dealer criminal justice weaklings.

The other big obstacle, which might prove even more problematic, goes by the much nerdier label, mens rea.  That Latin phrase, which translates as “guilty mind,” is law school shorthand for the way prosecutors are sometimes required to prove a defendant’s criminal intent in order to obtain a conviction. Under federal law, many categories of behavior are crimes only when the accused know what they’re doing is wrong and do it anyway – but some actions can bring convictions and imprisonment whether or not there’s any willful criminal intent.

Many influential Republicans, urged on by their business allies and such conservative fundraising forces as the Koch brothers, are eager to apply a blanket mens rea requirement across the federal criminal code.  They say the government has too much power to convict companies and their executives without having to prove any criminal intent. And they are eyeing the sentencing overhaul bill as their best available vehicle for getting the job done.

Lawmakers and activists from the Bernie Sanders wing of the Democratic Party deride this proposal as a thinly veiled effort to deliver a permission slip for more “What, me worry?” sketchy behavior to the same sort of bad actors in the corporate and investment worlds who melted down the economy eight years ago.  These liberal forces, too, have the ability to produce punchy campaign commercials targeting those in Congress who go along.

Even if the bill gets through the Senate without having to swallow the mens rea poison pill, top Republicans in the House are insisting that sentencing legislation will only move if it’s lashed together with their efforts to expand the need to prove criminal intent. The Obama administration argues the opposite, that the only way to sign a bill on sentencing this year is to negotiate protections for unwitting white collar criminals on a separate track.

One again this campaign season, it’s the small clusters of combative voices at the edges that are likely to have more power than any collaborative majority in the middle.

Not only does this piece effectively detail all the ways in which and reasons when the revised SRCA might not make it through the legislative process over the next six month, it also hints at an intriguing and perhaps disconcerting reality that for me has now emerged: GOP Prez front-running Donald Trump is now perhaps the political power-player with the greatest opportunity to "unstick" the SRCA.

If GOP Prez candidate Trump were to make nice to certain key GOP leaders like Paul Ryan and Chuck Grassley and John Cornyn (not to mention key GOP funders like the Koch brothers) by getting seriously and vocally behind the significant sentencing reform efforts by the "establishment right" (with or without mens rea reform), then I would increase my optimism about the odds of these reforms becoming a reality. But if Trump stays mum on this front, or especially if prodded by folks like Jeff Sessions and Chris Christie to oppose any reforms, I think the 2016 campaign dynamics will come to doom reform at least until we get to the lame duck period.

A few 2016 related posts:

May 12, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Campaign 2016 and sentencing issues, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (6)

Wednesday, May 11, 2016

Sixth Circuit panel sends Miller litigation about Michigan juve LWOPers needs review anew after Montgomery

A Sixth Circuit panel today issues an interesting (non)opinion about the state and fate of federal litigation over the fate and future of Michigan juveniles serving LWOP sentences that are unconstitutional because imposed under a mandatory sentencing system. Here is how the opinion in Hill v. Snyder, No. 13-2661 (6th Cir. May 11, 2012) (available here), gets started:

This long-running case returns us to the difficult topic of juvenile crime and punishment. Our return, however, is to a new legal landscape, one defined by the Supreme Court’s developing jurisprudence recognizing that the unique characteristics of youth matter in determining the propriety of their punishment.  This case began when Michigan charged and tried the named plaintiffs as adults for acts they committed while under the age of 18.  Each received a conviction for first-degree murder and a mandatory sentence of life in prison. Michigan laws in place at the time rendered anyone convicted of firstdegree murder ineligible for parole, meaning that the plaintiffs in this case effectively received mandatory sentences of life in prison without the possibility of parole for acts they committed as children.

Plaintiffs filed suit in federal district court in 2010 challenging, among other things, the constitutionality of the Michigan statutory scheme that barred them from parole eligibility. Since that time, at least three important legal events have come to pass.  First, the Supreme Court held in Miller v. Alabama, 132 S. Ct. 2455 (2012), “that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Id. at 2460.  Second, Michigan amended its juvenile offender laws in light of Miller, but made some of those changes contingent upon either the Michigan Supreme Court or the United States Supreme Court announcing that Miller’s holding applied retroactively.  See Mich. Comp. Laws Ann. §§ 769.25, 769.25a (2014).  And, third, the United States Supreme Court recently held in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that Miller’s prohibition on mandatory life without parole for juvenile offenders is indeed retroactive.

The district court wisely (and presciently) reached the conclusion that Miller should apply retroactively when it ruled on the parties’ cross-motions for summary judgment in 2013.  That conclusion also drove the district court’s issuance of an injunctive order against defendants requiring compliance with Miller.  In light of the legal changes described above, however, and for the reasons that follow, we VACATE the challenged district court orders and REMAND for the district court to address these issues under the legal landscape established by Montgomery v. Louisiana, Miller v. Alabama, and this opinion.

May 11, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

How many death sentences nationwide would get overturned if juror unanimity were constitutionally required for death sentences?

The question in the title of this post came to my mind after seeing this Los Angeles Times opinion piece headlined "Florida's death penalty should require unanimous jury votes." Here are excerpts from piece:

In a criminal jury trial, a conviction requires a unanimous verdict of guilt, whether the crime is a low-level drug possession charge or capital murder. But in Florida, after all 12 members of a jury have found the accused guilty, only 10 of them have to agree that the defendant should die for the crime. It’s absurd to require a lower level of agreement to send someone to death than is required to find the person guilty in the first place.

Florida Circuit Judge Milton Hirsch reached the same conclusion in a decision Monday that declared Florida’s latest death penalty law in violation of the state’s constitution. That decision followed arguments a few days earlier before the state’s Supreme Court over whether the U.S. Supreme Court decision in Hurst v. Florida, which found the state’s sentencing-decision process unconstitutional, meant that all 390 people on Florida’s death row should have their sentences converted to life. Yes, it does. If the sentencing process is unconstitutional, then the sentences are, too....

In the Hurst case, the Supreme Court affirmed that only a jury can make a finding of fact. Florida, in an effort to save its death penalty, rewrote its law to say the jury must decide whether the death penalty was appropriate. But the U.S. Supreme Court didn’t say how many jurors must make that call, and the revised state law raised the threshold to 10 of the 12 jurors.

Hirsch’s decision on Monday said that no, under the state’s constitution, a super-majority is not enough. His logic is a bit attenuated, but sound. Florida’s constitution guarantees trial by jury but doesn’t specify that a unanimous verdict must be reached. However, decades of practice, and common law, set unanimity as the standard threshold for a verdict. And since the revised law calls the jury’s finding for the death penalty a verdict, then it must be unanimous....

The least Florida can do is require unanimity by a jury before deciding to kill someone. And it should either grant fresh sentencing trials for those on death row or — and this is the preferred, more humane solution — commute the death sentences to life sentences.

Notably, two of the four states in the US with the largest death rows (Florida and Alabama) have sentenced a significant number of murderers to death without a unamimous jury recommendation to that effect. Though it is not clear that roughly all 600 persons on those states' death rows would be sure to get relief from a constitutional rule requiring jury unanimity for death recommendations, a suspect a significant number would. And even if only half of those condemned would get relief, that could cut the size of the US death row population down by more than 10 percent.

The Supreme Court's ruling in Hurst studiously avoided weighing in on this jury unaniminty issue, but I am not sure it is point to be able to avoid it for too much longer in light of what is going on in Florida and perhaps other places in the post-Hurst world.

A few prior related post:

May 11, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Monday, May 09, 2016

Florida state judge declares unconstitutional state's post-Hurst revised death penalty procedures

As reported in this new local article, a "Miami-Dade judge has ruled that Florida’s death penalty is unconstitutional because jurors are not required to agree unanimously on execution." Here is more:

Circuit Judge Milton Hirsch on Monday issued the ruling in the case of Karon Gaiter, who is awaiting trial for first-degree murder. Hirsch wrote that Florida’s recently enacted “super majority” system – 10 of 12 juror votes are needed to impose execution as punishment for murder – goes against the long-time sanctity of unanimous verdicts in the U.S. justice system.

“A decedent cannot be more or less dead. An expectant mother cannot be more or less pregnant,” he wrote. “And a jury cannot be more or less unanimous. Every verdict in every criminal case in Florida requires the concurrence, not of some, not of most, but of all jurors – every single one of them.”...

In January, in the case of Timothy Lee Hurst, the U.S. Supreme Court declared the state’s death sentencing system unconstitutional because it gave too little power to juries. For decades, jurors only issued majority recommendations, with judges ultimately imposing the death penalty. The high court, however, did not rule on the unanimity question. Except for Alabama and Florida, all other states that have the death penalty require a unanimous jury verdict to impose the death sentence....

After the Hurst case was decided in January, Florida lawmakers were forced to fix the death-penalty sentencing scheme. Florida’s new law requires juries to unanimously vote for every reason, known as aggravating factors, that a defendant might merit a death sentence. Whether to actually impose the death sentence requires 10 of 12 jurors. “All of these changes inure to the benefit of the defendant,” Assistant State Attorney Penny Brill wrote in a motion in the Gaiter case earlier this year. “These requirements render Florida’s system constitutional under the United States Supreme Court’s precedents.”

Judge Hirsch, in his order, said the fixes don’t matter. “Arithmetically the difference between twelve and ten is slight,” Hirsch wrote. “But the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.”

The full 18-page order referenced here is available at this link, and a quick scan of opinion reviews that it includes quotes from William Shakespeare, William Blackstone, Winston Churchill, Glanville Williams, the prophet Elijah, and lots of other notable sources.

May 9, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Former federal drug warriors assail sentencing reform efforts because "drug dealing is a violent crime"

William J. Bennett, the director of drug control policy for President George H. W. Bush, and John P. Walters, the director of drug control policy for President George W. Bush, have this notable new Washington Examiner op-ed headlined "Drug dealing is a violent crime."  Here are excerpts:

The Sentencing Reform and Corrections Act now before Congress is based on a lie — that drug dealing is not a violent crime.  Americans have been told this lie for years even as we witness the violence and death caused by drug dealers in our communities.  Now, this lie is propelling legislation through Congress that will destroy more lives.

As former directors of the Office of National Drug Control Policy, we carry a particular responsibility to speak up when so many who should know better claim that drug trafficking has been treated too harshly under federal law.

Claims by President Obama and others that federal prisons are filled with "nonviolent drug offenders" and that drug dealing is a "victimless crime" are grotesquely dishonest.  How can the drug trade be victimless when most Americans know a victim?  How can it be non-violent when we witness the carnage every night on the local news?...

In the federal prison system, 99.5 percent of those incarcerated for drug convictions are guilty of serious trafficking offenses.  And according to a Bureau of Justice Statistics study of state drug inmates, 77 percent reoffend within five years of release, with 25 percent committing violent offenses.  Most of these convicted drug dealers are career criminals with long rap sheets.  By softening punishments for these traffickers, as this legislation does, Congress would give convicted dealers shorter sentences and early release causing destruction to communities across America. Moreover, this push to release experienced traffickers is occurring at the same time our nation is enduring a 440-percent increase over the past seven years in heroin overdose deaths.

Drug dealing is inseparable from violent victimization.  Illegal drugs kill tens of thousands each year in overdose deaths.  More die in violent acts and accidents under the influence of drugs.  Still more die slowly of blood-borne diseases contracted through injection drug use and through high-risk behavior while under the influence of drugs, including prostitution to support addiction.  Street-level dealers look into the eyes of these victims daily as they take addicts' money and foster their self-destruction.  Traffickers at levels above the street know this reality and take their wealth from it, spreading death across neighborhoods and across the globe....

Considering all that America knows about drug addiction, only the dishonest or willfully blind can claim that drug trafficking is a non-violent crime.  Drug dealing depends on addiction; addicts consume the vast majority of the drug supply; the dealer cultivates users to create more addicts in a murderous cycle.

Drug dealers know drugs will eventually impair judgment and bend free will, altering personality and poisoning bonds to loved ones.  We know drug use and addiction degrade millions of lives — impairing education, employment and parenthood.  Drugs are at the root of much of the child abuse, endangerment and domestic violence perpetrated against the innocent.

But the destruction is much wider. Addiction and drug dealing ravage whole communities, urban and rural.  We need look no further than the daily reports of the heroin epidemic today, or the still-vivid memories of the meth epidemic and the crack epidemic.  Drug dealing makes whole neighborhoods war zones, places of economic blight and large-scale victimization.  There is no greater single source of actual harm to Americans today — none.  The cost of incarcerating drug dealers is small compared to the true cost of their crimes to society.

Knowing this, it is an utterly irresponsible effort to release experienced drug dealers from federal prison before they have completed their just sentences, arguing they are merely misguided business people or desperate individuals caught up in an unfair system.  The truth about drug dealing is this: It requires cruelty and willful indifference to the visible suffering inflicted on others — over and over again — harming individuals, families and whole communities.

May 9, 2016 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10)

"Louisiana’s Color­-Coded Death Penalty"

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

The last time a white person in Louisiana was executed for a crime against a black person was in 1752, when a soldier named Pierre Antoine Dochenet was hanged after attempting to stab two enslaved black women to death with his bayonet.

This is just one of many grim facts in a new report describing the history of capital punishment in Louisiana and analyzing the outcome of every death sentence imposed in that state since 1976, when the Supreme Court reversed its brief moratorium on executions and allowed them to resume.

Racism has always been at the heart of the American death penalty. But the report, in the current issue of The Journal of Race, Gender, and Poverty, drives home the extent to which capital punishment, supposedly reserved for the “worst of the worst,” is governed by skin color.

In Louisiana, a black man is 30 times as likely to be sentenced to death for killing a white woman as for killing a black man. Regardless of the offender’s race, death sentences are six times as likely — and executions 14 times as likely — when the victim is white rather than black.

May 9, 2016 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Sunday, May 08, 2016

Some critical reflections on Prez Obama's clemency efforts and some ideas about what could have been

Late last week, the Washington Post had this lengthy article reviewing the various problems encoutered during President Obama's clemency push over the last few years.  The piece is headlined "Lack of resources, bureaucratic tangles have bogged down Obama’s clemency efforts," and it effectively summarized many of the difficulties previously reported on this blog. Here are excerpts:

In the waning months of his presidency, Obama has made commutations for nonviolent drug offenders a centerpiece of his effort to reform the country’s criminal-justice system. But behind the scenes, the administration’s highly touted clemency initiative has been mired in conflict and held up by a bureaucratic process that has been slow to move prisoner petitions to the president’s desk.

Obama has granted 306 commutations to federal prisoners — more than the past six presidents combined. But as of Friday, 9,115 commutation petitions were pending with little time left to review them. Of these, fewer than 2,000 appear to be eligible for the president’s clemency program, according to a Justice Department official. Thousands more are still being reviewed by outside lawyers.

From the beginning, the program was beset by problems, including a lack of resources and a cumbersome, multilevel review system. The U.S. pardon attorney at the Justice Department makes recommendations that move to the deputy attorney general, who reviews the cases and sends them to the White House counsel, who considers them again before choosing which ones go to Obama.

The pardon attorney became so frustrated that she quit earlier this year and wrote a scathing resignation letter to Deputy Attorney General Sally Q. Yates. Deborah Leff said that despite her “intense efforts” to do her job, the Justice Department had “not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president.”...

On Thursday, Obama commuted the sentences of 58 prisoners, his second round of clemencies in three months as the program has picked up steam. Administration officials say that they are addressing obstacles that have plagued the clemency initiative. The Justice Department has added lawyers to the pardon office. And White House Counsel Neil Eggleston has promised that many more petitions will be granted in the president’s final eight months.

“The President is deeply committed to the clemency initiative. That is evident not only by the historic number of commutations he’s granted to date, but by his wholesale approach to revamping the way the government approaches commutations,” White House spokeswoman Brandi Hoffine said in a statement. “That change helped spark a long overdue conversation about reforming our criminal justice system, which we hope will result in Congressional action so that many more deserving individuals can benefit from a second chance.”...

An attorney who worked in the pardon office at the same time as Leff said that with petitions flooding in, it was extremely difficult with so few lawyers to sort out complicated drug cases and figure out whether they met the department’s strict criteria. To get more help, Cole reached out to the private bar to set up another layer of lawyers to read applications.

Outside lawyers formed an organization called Clemency Project 2014, which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers. An army of about 4,000 volunteer lawyers from across the country signed up to help in what has become one of the largest pro bono efforts in the history of the American legal profession. Seventy large law firms, more than 500 small firms and solo practitioners, and 30 law schools are involved, according to Cynthia W. Roseberry, the project’s manager. But it took nearly a year for the group to get organized and recruit and train lawyers, many of whom had no experience in criminal law.

An overwhelming 36,000 inmates — about 17 percent of the federal prison population — filled out surveys asking for help from the Clemency Project. Even though the Justice Department had its own backlog, officials there privately complained that the outside Clemency Project lawyers, with their multiple levels of review, were taking too long to send more petitions. That in turn frustrated the Clemency Project attorneys, who said they were working carefully to locate old legal documents, contact prosecutors and judges, look at prison behavior records and try to get pre-sentencing reports and sentencing transcripts. At the same time, they have been weighing risks to public safety....

Some critics say the White House could have avoided many of these headaches by modeling the process after the way President Gerald Ford handled clemencies for Americans who had deserted the Army or failed to show up for the draft during the Vietnam War.  With 600 people working on a special commission to review the cases, Ford granted 14,000 clemencies in one year. Law professor Mark Osler, co-founder of New York University’s Clemency Resource Center, said the initiative also might have gone more smoothly if Obama had moved the pardon attorney’s office into the White House rather than keeping it under career prosecutors who may find it difficult to reverse other prosecutors’ decisions.

This recent Fusion piece, headlined "The bold step President Obama could take to let thousands of federal inmates go free," provides a thorough discussion of the special clemency commission that President Ford had set up to deal with a massive number of Veitnam draft dodgers and desserters and which was able to process tens of thousands of clemency cases in just a year.  Here is how it concludes:

If Obama had appointed a Ford-style clemency board, he could have cut down the bureaucracy to three or four steps: a review by the board’s staff, a review by the board, a review by the White House counsel, a review by the president.

In the last few months, Obama’s advisers have been making the argument that he’s granted “more [clemencies] than the previous six Presidents combined.” But that calculation is false, as it incorrectly ignores the clemencies granted through Ford’s commission. (A White House spokesperson noted that Department of Justice statistics only count the 22 non-Vietnam related clemencies that Ford granted.)

For many recent presidents, clemency has been treated more like an afterthought. Until recently, Obama announced them at the end of each year, before he jets off to Hawaii with his family — a last-minute Christmas gift to a tiny handful of prisoners.

With fewer than 10 months left in office, even if Obama had a change of heart and decided to create a clemency board today, it would almost surely be too late. But [clemency advocates Nkechi] Taifa and Osler say it’s an idea that should be picked up by the next president. “This should not end with the Obama administration,” Taifa said.

“I do not want to delay another day in resolving the dilemmas of the past, so that we may all get going on the pressing problems of the present,” Ford said when he announced his clemency board. If President Obama—or the next president—wants to resolve the past failings of our criminal justice system, then they should also take lessons from one of its rare success stories.

May 8, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Saturday, May 07, 2016

An astute accounting of one view on how the post-Hurst hydra in Florida ought to be slayed

Regular readers know that, after the US Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe the multi-headed, snake-like capital litigation sure to develop as judges tried to make sense of what Hurst must mean for past, present and future cases.  Of particular significance in Florida, which has second largest death row in the nation and holds roughly one of every seven condemed murderers in the US, is what will become of all those sentenced to death before Hurst.

As noted in this post a few days ago, the Florida Supreme Court took up this question this past week, and some prominent Floridians argued that all those previously sentenced to death should have their sentences changed to life without parole.  But, with this is sure to be a popular view among death penalty abolitionists, death penalty supporters are not likely to readily embrace this solution.  And, very helpfully, Kent Scheidegger at Crime & Consequences has this lengthy and thorough post providing an astute review of what existing Supreme Court retroactivity jurisprudence should mean. The post is titled "What Happens to the Florida Death Row Cases After Hurst?", and here is how it starts and ends:

In January, the U.S. Supreme Court decided in Hurst v. Florida that the Florida capital sentencing system did not comply with a series of cases beginning with Apprendi v. New Jersey (2000). Yesterday, the Florida Supreme Court heard oral argument on remand in the Hurst case.  Several people have asked me what should/will happen to the cases of the murderers presently on death row in Florida. "Should" is easier to answer than "will":

1.  Cases final on direct appeal (i.e., those where the Florida Supreme Court has affirmed the judgment in the initial appeal and the U.S. Supreme Court has denied the petition to take the case up or the defendant did not file one) should not be affected by Hurst.

2.  Cases already tried and pending on appeal should be affirmed under the "harmless error" rule if it is clear beyond a reasonable doubt that the jury would have unanimously found at least one aggravating circumstance if they had been asked to do so.  For example, if the jury convicted the defendant of robbery and murder and there is no question in the case that the murder was committed in the course of the robbery (an aggravating circumstance), that would be harmless error.

3.  Cases where there is a Hurst error that does not meet the standard for harmless error should be retried as to penalty under the new statutory procedure....

The Florida Legislature acted swiftly after Hurst to enact a new procedure meeting the newly minted constitutional requirements.  Why? Because it considers enforcement of the death penalty important. Why, then, would the legislature want a whole class of sentences wiped out? It would not.  Attributing such an intended result makes no sense given the purpose of the law.

Finally, there is the matter of arbitrariness. Arbitrariness necessarily works both ways. Just as people should not arbitrarily be sentenced to punishment, neither should they arbitrarily be spared a punishment they deserve.  Arbitrary sparing of some is necessarily arbitrary infliction on those not spared.

The whole point of our complex jurisprudence of capital sentencing is to make the sentence fit what the murderer deserves.  Commuting a wide swath of sentences based on an accident of timing without any regard for just deserts is arbitrary.  Absent strong evidence the legislature intended this result, it should not be attributed to them.

The new act should apply to any cases remanded for resentencing.

May 7, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, May 06, 2016

Commissioner of U.S. Commission on Civil Rights expresses concerns to Senator Grassley about efforts to reduce federal prison sentences

Kirsanow,PA helpful reader just forwarded to me a fascinating, lengthy letter authored by Peter Kirsanow, a long-serving Commissioner on the US Commission on Civil Rights, expressing concerns about federal sentencing reform efforts.  I recommend everyone following the current debats over federal statutry sentencing reforms to read the full letter, which can be downloaded below.  These extended excerpts from the start and body of the letter (with footnotes removed but emphasis preserved from the original) should help explain why I find it fascinating:

I write as one member of the eight-member U.S. Commission on Civil Rights, and not on behalf of the Commission as a whole. I also write as a person who lives in a high-crime, predominantly African-American neighborhood. The purpose of this letter is to express my concerns about the Sentencing Reform Act of 2015, particularly the various provisions that reduce the length of prison sentences.

Three years ago, the U.S. Commission on Civil Rights held a briefing on the Equal Employment Opportunity Commission’s [EEOC] revised guidance on the use of criminal background checks in hiring. The guidance was motivated by many of the same concerns that seem to underlie the Sentencing Reform Act — primarily that minority men, particularly African-American men, are disproportionately likely to be incarcerated and have criminal records, a concern about burgeoning prison populations, and a sense that as a society we should focus on rehabilitation, not retribution.

During our briefing, witnesses testified about the difficulty ex-convicts face in obtaining employment, a very real and troubling concern. But one would have concluded from the briefing that rehabilitation was the norm for ex-offenders, stymied only by a callous society that refused to give them a second chance.  One also would have thought that ex-offenders were essentially indistinguishable from non-offenders.  Further research revealed this to be far from the truth....

The Sentencing Reform Act is predicated on the belief that rehabilitation is not only possible, but likely.  Yet scholarly literature indicates that a person who has been convicted of multiple offenses is always more likely to offend (again) than is a person who has never offended.  Indeed, even a person who has been arrested only once is always more likely to be arrested than is a never-arrested person....

We can rest assured, then, that a substantial number of released prisoners will re-offend.  Who are their victims likely to be?   It is likely, given the disproportionate presence of AfricanAmerican men in the prison population, that any relaxation of sentencing or early release will disproportionately benefit African-American men.  Indeed, the racial disparity in incarceration is widely acknowledged to be the primary motivation for sentencing reform on the Left, and perhaps in some corners of the Right as well.  Those African-American men will then return to their communities, which are more likely to be predominantly African-American.  It is therefore likely that the victims of those released early will also be disproportionately likely to be black.  This is not surprising — people tend to live in communities predominantly comprised of members of their own racial or ethnic group.  White ex-offenders are therefore likely to victimize other white people. But the drive for sentencing reform is motivated by concern over black offenders, and so it is worth noting that their future victims are also likely to be black.  If we are going to play the disparate impact card, which is much of the impetus behind sentencing reform, we should note that the disparate impact works both ways. Yes, blacks are disproportionately likely to be incarcerated.  But the lives not lost or damaged because of their incapacitation due to incarceration are also disproportionately likely to be black....

There is one other thing I would like to note. Everyone at least tacitly acknowledges that much of the political pressure behind this bill is animated by a sense of racial grievance — that African-American men are incarcerated at higher rates than their presence in the population. Yet one of the reasons why we have some of these stiff sentences is because when crime was rampant, African-Americans protested the violence visited upon their communities and asked the government to get tougher on crime.  If we relax sentencing, there is a very good chance that crime will go up, it will disproportionately go up in African-American communities, and then some of the same people who are presently supporting sentencing leniency will be demanding harsher penalties because of the increasing crime in their communities; and, if recent history is a guide, they will claim the increase is due to racially discriminatory policies.

Download Letter re Sentencing Reform Act May 5 2016

May 6, 2016 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (8)

"Gutting Habeas Corpus: The Inside Story of How Bill Clinton Sacrificed Prisoners’ Rights for Political Gain"

The title of this post is the headline of this notable new Intercept piece, which gets started this way:

On the eve of the New York state primary last month, as Hillary Clinton came closer to the Democratic nomination, Vice President Joe Biden went on TV and defended her husband’s 1994 crime bill.  Asked in an interview if he felt shame for his role passing a law that has been the subject of so much recent criticism, Biden answered, “Not at all,” and boasted of its successes — among them putting “100,000 cops on the street.”  His remarks sparked a new round of debate over the legacy of the crime bill, which has haunted Clinton ever since she hit the campaign trail with a vow to “end the era of mass incarceration.”

A few days later, on April 24, a lesser-known crime law quietly turned 20. The Antiterrorism and Effective Death Penalty Act of 1996 — or AEDPA — was signed by Bill Clinton in the wake of the Oklahoma City bombing.  While it has been mostly absent from the recent debates over the crime policies of the ’90s, its impact has been no less profound, particularly when it comes to a bedrock constitutional principle: habeas corpus, or the right of people in prison to challenge their detention.  For 20 years, AEDPA has shut the courthouse door on prisoners trying to prove they were wrongfully convicted.  Americans are mostly unaware of this legacy, even as we know more than ever about wrongful convictions.  Barry Scheck, co-founder and head of the Innocence Project, calls AEDPA “a disaster” and “a major roadblock since its passage.”  Many would like to see it repealed.

If the Clintons have not been forced to defend AEDPA, it’s partly because neither the law nor its shared history with the crime bill is well understood.  AEDPA’s dizzying provisions — from harsh immigration policies to toughened federal sentencing — were certainly a hasty response to terrorism.  But the law was also the product of an administration that long before the Oklahoma attack had abandoned its party’s core principles on criminal justice, deciding instead to wield crime policy as political weapon.  After the Republicans seized control of Congress in the historic 1994 midterm elections, the Clinton White House sought to double down on its law-and-order image in advance of the 1996 presidential race. In the short term, it was a winning political strategy for Clinton.  In the long term, it would help pave the way to one of the worst laws of his presidency.

May 6, 2016 in Death Penalty Reforms, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

More evidence of a failed drug war: foot soldier always high while fighting

This recent AP article, headlined "Reports: Chemist Who Worked on Drug Cases Was Usually High," provides yet another reason why I see the so-called war on drugs to be an abject failure. Here are the details:

Investigators say a former chemist who tested drugs for Massachusetts police departments was high almost every day she went to work for eight years, potentially putting thousands of criminal convictions in jeopardy.

Sonja Farak, who worked for an Amherst lab that tested drug samples for police, was high on methamphetamines, ketamine, cocaine, LSD and other drugs during most of her time there, even when she testified in court, according to a state investigative report released Tuesday. Farak worked at the lab between 2005 and 2013.

Cyndi Roy Gonzalez, a spokeswoman for Attorney General Maura Healey, said the information gathered about Farak "will no doubt have implications for many cases," but it is unclear just how many. She said it will be up to prosecutors, defense attorneys and the courts to determine the full scope of cases affected by Farak's misconduct. "We are deeply concerned whenever the integrity of the justice system is called into question or compromised," she said.

One defense attorney told the Boston Herald that Farak handled about 30,000 cases during her career. "This is a statewide scandal, and I think it's going to take an enormous toll on the system," attorney Luke Ryan said.

Farak's case is unrelated to the case of Annie Dookhan, who worked at a state drug lab in Boston. Dookhan was sentenced in November 2013 to at least three years in prison after pleading guilty to faking test results in criminal cases that jeopardized thousands of convictions.

The American Civil Liberties Union of Massachusetts said the number of criminal cases affected by Farak's misconduct could rival the approximately 40,000 cases thrown into question by Dookhan's actions. "It's now beyond doubt that the drug war in Massachusetts during the Dookhan-Farak era was built on a foundation of falsified evidence," said Matthew Segal, the ACLU's legal director.

Segal said he doesn't have an estimate of how many cases could be challenged, but said prosecutors who got convictions using drug samples she tested "have an obligation to identify and notify everyone who might have been denied due process" as a result of Farak's actions. Segal said that because Farak admitted ingesting lab "standards" — drug samples used as benchmarks to test against substances submitted by police for testing — all cases that went through the lab should be re-examined.

Last year, the Supreme Judicial Court of Massachusetts ordered an investigation into the timing and scope of Farak's misconduct. Healey's office conducted the investigation. Many of the shocking details came from Farak's own grand jury testimony, including that she once smoked crack before a 2012 state police accreditation inspection of the now-closed lab. Farak also testified that she manufactured crack cocaine for her personal use in the lab.

Farak, 37, of Northampton, pleaded guilty to tampering with evidence, stealing cocaine from the lab and unlawful possession in January 2014 and was sentenced to 18 months behind bars and five years of probation. She served her sentence and has been released from prison....

Gov. Charlie Baker said the state will likely have to allocate more money to deal with the Farak scandal. In the Dookhan case, the state Legislature authorized up to $30 million to cover costs incurred by the court system, prosecutors, public defenders and other state agencies. "We certainly believe we are going to have a big responsibility to work with the courts and with others to make sure that people who are affected by this have the appropriate opportunity to engage in that conversation," Baker said. "And we fully expect we will be doing that for the next several months."

May 6, 2016 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Thursday, May 05, 2016

"The only way to get rid of racial bias in death penalty cases is to get rid of the death penalty"

The title of this post is the subheadline of this notable new Slate commentary authored by Robert J. Smith, which carries the main headline "There’s No Separating the Death Penalty and Race."  Here are some excerpts:

The mix of prosecutorial impropriety and the exclusion of black jurors has always been a potent combination for injecting racial bias into death penalty cases and racial cynicism into the electorate. It undermines not only the legitimacy of the death penalty, but also the legitimacy of the government as an entity capable of rendering impartial justice. It robs people of the right to participate in their government, and it makes whole swaths of people cynical about the government itself and their role in it. Yet, even if the Foster case [now before SCOTUS] provides another rebuke of the illegal practice of striking jurors because of their race, 30 years of experience suggests that the court’s case-by-case reversals will not eradicate racial discrimination in jury selection. It still happens all over the country and continues to taint our broken death penalty system....

An optimist might hold out hope that although racial bias infects these older cases, the ties between race and the death penalty have loosened in more recent cases as the nation continues to make racial progress. Unfortunately, though, while the death penalty has become increasingly rare in practice, many of the remaining cases are still intertwined with the nation’s long legacy of racism. And, even in the cases with explicit, unconscionable racial bias ... current elected prosecutors, governors, and state and federal courts have failed repeatedly to intervene or object.

May 5, 2016 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Prez Obama commutes 58 more federal drug sentences

As detailed via this terse White House press release, "On May 5, 2016, President Barack Obama granted commutation of sentence to 58 individuals." The release lists the 58 new recepients of executive clemency, and a quick scan reveals that all appear to be drug defendants and most involving cocaine and/or crack.

This press release from NACDL adds these notable particulars: "In his second set of clemency grants in under six weeks, President Barack Obama commuted the sentences of 58 prisoners today, 28 of whom were applicants whose petitions were supported by Clemency Project 2014."

UPDATE:  I just saw that Prez Obama now has this new Medium entry headlined "A Nation of Second Chances." Here are excerpts:

Earlier this spring, I met with a group of individuals whose sentences were commuted either by President Bush, President Clinton, or myself. They were all at different stages of a new chapter in their lives, but each of their stories was extraordinary.

Take Phillip Emmert. When he was 27, Phillip made a mistake. He was arrested and convicted for distributing methamphetamines and received a 27-year sentence. So, by the time he was released, he’d have spent half his life behind bars. Unfortunately, while in prison, his wife was paralyzed in an accident. So while he was in prison, Phil learned everything he could about fixing heating and air conditioning systems — so he could support his wife when he got out. And after his sentence was commuted by President Bush, he was able to do just that. Today, he’s gainfully employed. He’s a caregiver for his wife, an active father, and a leader in his community.

Like so many nonviolent offenders serving unduly harsh sentences, Phillip is not a hardened criminal. He’s taken responsibility for his mistakes. And he’s worked hard to earn a second chance.

Today, I commuted the sentences of an additional 58 individuals just as deserving as Phillip — individuals who can look to him as inspiration for what is possible in their lives.

As President, I’ve been working to bring about a more effective approach to our criminal justice system, particularly when it comes to drug crimes. Part of that effort has been to reinvigorate our commutations process, and highlight the individuals like Philip who are doing extraordinary things with their second chances. To date, I will have commuted 306 individual sentences, which is more than the previous six presidents combined....

As a country, we have to make sure that those who take responsibility for their mistakes are able to transition back to their communities. It’s the right thing to do. It’s the smart thing to do. And it’s something I will keep working to do as long as I hold this office.

May 5, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23)

Lots of new and notable recent state marijuana reform developments

Regular readers know they should be regularly checking out my (not-so) regular postings at my other active blog Marijuana Law, Policy and Reform for updates on marijuana reform stories.  This week there have been particularly notable reform developments in notable states from coast to coast that I thought merited highlighting here: 

Even for those folks only interested in marijuana reform as a small piece of broader criminal justice reform policies and politics, I think developments in big state California and swing state Ohio are especially important to watch.  In particular, if there were to be big marijuana reform wins at the ballot in November (e.g., if voters were to approve reforms by 60% or more) in both states --- and also, say, in at least one other big swing state like Arizona or Florida ---  I think it would thereafter prove close to impossible for the next President not to make some kind of federal marijuana reform a priority in 2017.

May 5, 2016 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

"Congress Should Follow the Red States’ Lead on Criminal-Justice Reform"

DownloadThe title of this post is the headline of this notable National Review commentary authored by prominent conservatives Adam Brandon, Timothy Head, Marc Levin and Grover Norquist. Here are excerpts:

Nearly ten years ago, in 2007, Texas faced $527 million in immediate prison-construction costs, and $2 billion in additional costs by 2012. Even for a large and wealthy state, the sticker shock was staggering. Texas had seen its prison population rise dramatically.  Between 1990 and 2010, the number of inmates jumped from around 50,000 to more than 155,000 — incarcerating so many inmates began to crowd out other vital areas of the budget.

Texas House Corrections Committee chairman Jerry Madden approached House speaker Tom Craddick and asked what he should do to address the rising costs. “Don’t build new prisons,” Craddick said. “They cost too much.” Madden, a Republican, got to work and, along with his colleagues from both sides of the aisle, devised a plan to tackle the state’s growing prison population.  With an investment of $241 million, lawmakers created drug courts to divert low-level, nonviolent offenders into treatment programs as an alternative to incarceration and funded rehabilitation programs to reduce prisoners’ risk of recidivism when they reentered society.

The results of the Texas model are difficult to ignore: The state’s prison population declined by 14 percent and, even more importantly, crime rates dropped by 29 percent.  One might argue that crime rates were dropping all over the country at the time — which is true — but if one were to listen to those in rabid opposition to justice reform, wouldn’t the reverse have happened?  Instead, Texas now has its lowest crime rate since 1968 and recidivism is 9 percent less than before Texas’s 2007 reforms.

The results were so encouraging that other states sought to replicate Texas’s success.  Most of the states that have moved on substantive justice reform are traditionally conservative ones.  More than two dozen states — including Georgia, Mississippi, and South Carolina — have passed justice-reform packages.

Interestingly, it wasn’t until multiple Republican-controlled states moved on the issue that traditionally blue states felt that they could: They all waited for red states to move first. Hawaii, Oregon, and Rhode Island, three of the most progressive states in the country, followed the lead of conservative states. Since then, even more red states — including Alabama, Oklahoma, and Utah — have passed justice reform.  Red states, and Texas in particular, provided a blueprint for other states to follow while Barack Obama was still the junior senator from Illinois....

Now is the time to bring these conservative reforms to the federal level. The federal prison population grew by nearly 800 percent between 1980 and 2013, and the Bureau of Prisons’ budget increased by almost 600 percent, from $970 million to $6.7 billion.  Opponents of justice reform point to the high recidivism rate of federal prisoners as one of the reasons Congress shouldn’t act, but this is exactly why we, like so many conservative states, should act to get smarter on crime.

Moreover, there is also another angle that congressional Republicans may not have considered: There are no guarantees this fall.  Conservatives could be facing four or eight more years of a Democrat in the White House, Democratic control of the Senate, and, quite possibly, the House could swing back to left-wing control. While there is more bipartisanship on criminal justice than any other issue, conservatives understand we cannot reduce the prison population without also strengthening alternatives like probation and drug courts. So, for example, there should be swift and certain sanctions — such as a weekend in jail — when someone blows off their probation officer.  Some on the far left simply don’t recognize the “stick” part of the carrot-and-stick approach and want to divert savings on prisons to welfare programs rather than following Texas’s proven record by reinvesting the savings in supervision strategies that can help continue crime declines.

It’s time for congressional conservatives to reclaim the narrative that’s rightfully theirs. Justice reform is our issue. They would never admit it, but Democrats are following conservatives’ lead.

May 5, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Wednesday, May 04, 2016

Extended commentary assails prosecutorial power enabled by federal mandatory minimums

Amos Irwin, who serves as Chief of Staff at the Criminal Justice Policy Foundation (CJPF), has this lengthy new Huffington Post commentary headlined "The Laws that Betrayed Their Makers: Why Mandatory Minimums Still Exist."  Here are excerpts that highlight some of its main themes:

[R]ather than serving Congress’s purpose, federal mandatory minimum drug laws actually function as a prosecutor’s tool of interrogation. Since the same prosecutors who select the charges are also trying to extract information, they threaten defendants with wildly disproportionate mandatory minimums in order to force them to cooperate. They are open about this practice. The President of the National Association of Assistant U.S. Attorneys protested in July that if Congress reduces mandatory minimums, “prosecutors would lose a tool to extract information.”

They omit the fact that mandatory minimums are primarily useful for extracting information from the low-level offenders.... There are two problems with threatening long sentences to extract cooperation from low-level drug offenders.  First, this strategy is ineffective in impacting the drug trade. Second, it inflicts immense collateral damage on innocent people and low-level offenders, while letting the guiltiest offenders off more easily — the opposite of what Congress intended...

Federal appeals courts have explicitly approved of prosecutors threatening defendants’ wives with charges that are rarely prosecuted, solely to force the defendants to cooperate. Federal appeals courts have explicitly approved of prosecutors threatening defendants’ wives with charges that are rarely prosecuted, solely to force the defendants to cooperate.  Why would federal prosecutors threaten family members, knowing that they might have to follow through on those threats?  Prosecutors see that the War on Drugs is not working, and many conclude that they need to fight the enemy more aggressively.

May 4, 2016 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, May 03, 2016

US Sentencing Commission working on impressive looking new website

I am excited and intrigued to see a new item on the US Sentencing Commission's (old) website titled "Commission Launches Redesigned Beta Website."  Here is the explanation:

We are pleased to invite you to explore an in-progress (beta) version of the Commission’s redesigned website [available here].  We have more work to do, styling content and fixing bugs but by using the site, you’ll help show us what works, and what doesn’t. E-mail comments to: PubAffairs@ussc.gov (link sends e-mail).

I spent a few minutes poking around this new USSC site, and I find it very pretty but not so easy to navigate (though this may be due to its unfamiliarity).

May 3, 2016 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Prominent Floridians call for state Supreme Court to reverse all past Florida death sentences

As reported in this AP piece, now with "the fate of hundreds of Florida death row inmates in limbo, a group of former top judges and legal officials called on the state Supreme Court to impose life sentences on nearly 400 people now awaiting execution." Here is more about a notable amicus filing:

The group, which includes three former state Supreme Court justices and two former presidents of the American Bar Association, filed a legal brief Tuesday in a case that could determine the fate of Florida's death penalty.

After the U.S. Supreme Court declared Florida's death sentencing law unconstitutional in January, the state's high court halted two executions and state legislators overhauled the way convicted killers can be sentenced to death.  But the Florida Supreme Court still hasn't decided what should happen to the 389 people on death row under the previous sentencing scheme.  The court is taking the highly unusual step of this week of holding a second hearing before issuing a ruling — a sign that the seven-member court could be deeply divided.

The court said it wanted to hear from attorneys representing death row inmate Timothy Lee Hurst and the state on what affect the new sentencing law will have on his case....  In March, Gov. Rick Scott signed into law a new sentencing process for those convicted of murder.  The new law requires at least 10 out of 12 jurors recommend execution for it to be carried out.  Florida previously required that a majority of jurors recommend the death sentence. It remains one of only a handful of states that does not require a unanimous jury decision.  The new law also requires prosecutors to spell out, before a murder trial begins, the reasons why a death sentence should be imposed, and requires the jury to decide unanimously if there is at least one reason, or aggravating factor, that justifies it.

The decision to hold a second hearing in Hurst's case prompted three former state justices — Harry Lee Anstead, Gerald Kogan and former U.S. District Judge Rosemary Barkett — to join with two former heads of the bar association and an organization representing defense attorneys to argue that an existing state law requires those now on death row to have their sentences reduced to life in prison.

The state has objected and argued the U.S. Supreme Court ruling is not retroactive.

The full amicus brief referenced in this piece is available at this link, and here is its key heading:

Because the United States Supreme Court held Florida’s death penalty unconstitutional in Hurst v. Florida, section 775.082(2) of the Florida statutes requires that all persons previously sentenced to death for a capital felony be resentenced to life imprisonment without the possibility of parole.

May 3, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Do Public Defenders Spend Less Time on Black Clients?"

The question in the title of this post is the headline of this interesting new Marshall Project piece.  Here are excerpts (with a couple of key links highlighted):

[There is a] rising awareness among public defenders that they may harbor the same hidden biases about race and ethnicity that are frequently attributed to police and prosecutors.

A growing body of research has attempted to draw links between “implicit bias” — beliefs that unconsciously drive decisions and behavior — and the racial disparities that cut across every stage of the criminal justice system, from arrest to charge to incarceration to release.  One study found that black defendants in Connecticut had bail amounts 25 percent higher than comparable white defendants, and another found black defendants drew sentences 12 percent longer in federal courts.

Much of that research is focused on prosecutors, jurors, and judges, the triad that puts people away. But scholars are beginning to discuss how it also affects the work of public defenders, to the surprise of many. “I figured: we understand racism, we know our clients, we get it,” says Jeff Adachi, the elected public defender of San Francisco. But now Adachi is one of the converted, running twice-yearly all-day sessions for his staff in which they discuss how unconscious prejudices can sneak into their work. “It’s like waking up from a dream,” Jacobs recalled. Discovering research that correlated skin tone with the harshness of sentences “just made me sick.”  He remembered times in the past when he defended immigrants. “I’d think, well this case isn’t as important as that of an American kid. It was a feeling of, they’re just going to plead guilty so why should I bother?”

“[Bias] might manifest in whether the defender believes in the guilt or innocence of the person they’re representing,” says Phoebe Haddon, the chancellor of Rutgers University-Camden. “Or their assessment of their fellow counsel, the credibility of witnesses, whether to take a plea bargain.”

Haddon and the American Bar Association are developing videos to push judges, prosecutors, and defenders to discuss bias, and the first features a string of judges in a rare show of penitence.  William Missouri, a black retired circuit court judge from Maryland, says he studied his own sentencing patterns and found “I was biased against my own people.”  He looks stricken.  “Being accused of bias is like a knife slicing your skin; the cut may be shallow, but the hurt is deep.”

It goes beyond race: Cheryl Cesario, a former Chicago judge, admits that being Catholic meant that when a Catholic defendant came before her, “I would expect more from them.”

Data is scant, since multiple factors create sentencing disparities, but many defenders believe one of the main consequences of “implicit bias” is how much time they spend on cases. Their offices tend to be poorly funded and inundated with far more cases than they have time to handle. “They may expend more effort on cases in which they believe their client is factually innocent,” professors Song Richardson and Philip Atiba Goff wrote in a 2013 article for the Yale Law Journal [available here].

If they are interpreting “ambiguous evidence,” a “judgment of guilt may be cognitively easier to make because of the strong implicit association between blacks and crime.”  The surrender to implicit bias is exacerbated by stress, exhaustion, and speed — “exactly the context in which public defenders find themselves.”

The research is still mostly theoretical, and the concrete suggestions tend to be vague. The video for judges suggests that they try to be more humble, slow down their work, and do more self-examination. Videos and other materials for public defenders and prosecutors will be released by the American Bar Association later this year. The association encourages all lawyers to take the Implicit Association Test, an online tool developed at Harvard University [available here]. 

I have long considered implicit bias to be a huge issue in he operation of the criminal justice system, but I also think there are lots and lots of (not-quite-so-controversial) biases that impact the work of defense attorneys (both public and private). In particular, based on my own experiences and watching a lot of defense attorneys at work, I often see and surmise that the involvement of passionate family members and/or firends can have a potentially huge impact on how much time a defense attorney will spend on efforts to secure a better plea deal and/or develop more mitigation arguments at sentencing. For most overworked lawyers, squeaky-wheel clients will often get more grease; but criminal defense attorneys can grow a bit numb to their clients' squeaks. But I suspect when the squeaks are coming from a defendant's family and friends, especially if those "squeaks" are respectful and help identify sound mitigating matters, it can really impact defense efforts.

May 3, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

An (unhelpful?) exploration of how a troubled young man gets 50 years in Mississippi prison for first felony convictions

Rorschach-test_00411577The Clarion-Ledger is starting a series of articles titled "Blinded Justice" that will "examine how justice and punishment are dispensed across Mississippi in wildly varying ways."   This first piece, headlined "50 years for first-time felon? Tyler Moore's story," tells an interesting tale of a troubled youngster seemingly getting slammed on felony burglary charges because local prosecutors seemingly got tired of his many (misdemeanor-level?) crimes.  But the article does not really explore just why prosecutors ultimately were so eager to throw the book at this particular offender.  Here are excerpts from the lengthy piece which, for me, raises more state sentencing questions than answers:

Tyler Moore is serving 50 years in prison.  It was the first felony conviction for the 24-year-old man, struggling to beat a drug addiction and his bipolar disorder.  According to the Mississippi Department of Corrections, his tentative release date is 2061.  “I’ll be dead and gone by then,” said his mother, Lisa.  So how does a first-time offender who pleaded guilty to burglary get 50 years in prison? This is his story....

[In] 2010 ..., [after a charge of] misdemeanor possession of marijuana paraphernalia, Brandon police knocked on the door one morning about 5 and took him to jail on a hit-and-run charge.  The charge against him arose from a party where a young man claimed Moore had run his car into him.  Moore denied the claim, saying the young man jumped on his hood.

On April 1, 2011, the judge reduced the charge to leaving the scene of an accident, and Moore was fined.  While walking out of the courtroom that day, he muttered to someone, “You lying sack of s---.” The judge sentenced him to 10 days in jail.

The misdemeanors kept coming — contributing to the delinquency of a minor and then shoplifting when he walked out of Belk’s with a pair of sunglasses.  Moore apologized to the judge and admitted he had a drug problem.  He spent two days in jail, and the judge ordered drug tests for the next six months.

In August 2011, Moore’s family opted for a change in scenery, moving to Branson, Missouri....  He passed all the court-ordered drug tests. What his family didn’t know was his drug addiction now included spice, which couldn’t be detected by the tests....

As months passed, Moore grew homesick, and an old girlfriend wanted to see him.  He made it back to Mississippi before Christmas.  “I return and have like no money, so what do I do?” he wrote in a sworn statement. “I decide to steal out of some cars to get some money.”  In a Reservoir neighborhood, he went from car to car, stealing University of Alabama floor mats, an iPod, a University of Florida gator decal and other items.  

On Feb. 2, 2012, the Rankin County Sheriff’s Department arrested him and charged him with breaking into six cars....  After two weeks in jail, the judge released him on bond with the understanding he would go to a drug rehabilitation center, where he stayed 30 days.  He admitted using crack cocaine, marijuana and alcohol.

A day after his release in April 2012, deputies responded to a call, where they questioned Moore about a mother saying he had sex with her 15-year-old girl.  They arrested him, and he sat in jail for two weeks on a statutory rape charge. He insisted on his innocence, but he failed his polygraph test.  Once again, the judge sent him for 30 days to drug rehab.

After his release, his mother witnessed an improvement. He got a job at a car dealership... [but] when his employer learned of his burglary arrest, he was fired.  Devastated, he sank into depression.  A psychiatrist diagnosed him with bipolar disorder and prescribed medication. His mother said her son continued to struggle and began hanging out with the wrong crowd....

On a Thursday morning, Jan. 10, 2013, Moore discovered he had 21 missed calls on his cell phone.  When he talked with his mother, she told him deputies were looking for him. “They say you’ve been breaking into houses.”...  That evening, deputies showed up a second time, jailing his mother, father and 14-year-old brother on accessory after the fact charges after learning he was in Louisiana.

Moore’s grandmother decided to turn him in to the Rankin County jail on Sunday, a day before his court appearance.  When they arrived in Brandon, he bolted.  Deputies pursued him and caught him in a Reservoir subdivision, charging him with five counts of house burglary.  With his family behind bars, he confessed to the burglaries.

In a March 4, 2013, memo, the district attorney’s office gave Moore two options: He could plead guilty to auto and home burglaries and receive 50 years, or he could plead guilty to the burglaries and statutory rape, and receive 30 years.  Moore refused to plead guilty to statutory rape.

Ten days later, his new defense lawyer, John Colette of Jackson, proposed to prosecutors an alternative of 25 years in prison, with 25 suspended....  In response to the 50-year offer from prosecutors, Colette told them in a July 26, 2013, email, “Nobody was killed.”

The district attorney’s office didn’t budge.  Moore faced a new charge, this time of escape, after his bunkmate tried to pry open a window in the Rankin County jail.  Colette spoke with the sheriff and prosecutors, who agreed to dismiss the charge.

On Aug. 5, 2013, Moore pleaded guilty to five counts of auto burglary and one count of house burglary. “I just wanted to tell everyone I hurt I’m sorry, and my family,” he told the judge. “I’m not a bad guy. I’ve made some mistakes and I’m on drugs and I ran with the wrong crowd.”...  He confessed, “I don’t understand anything anymore, and I need help.”....

In keeping with the plea bargain, the judge sentenced him to 60 years in prison, suspending 10 of those years, with each sentence running consecutively. Circuit Judge John Emfinger dismissed the other burglary charges and the statutory rape charge. Because authorities recovered nearly all of the items, the judge ordered less than $300 in restitution.

Moore thought his sentences would run concurrently. “It did not seem real,” he wrote, “and to this day, it does not seem real.”... When Moore arrived at the Central Mississippi Correctional Facility, a correctional officer thought the 50 years of time were a mistake and double-checked with Rankin County Circuit Court to make sure the burglary sentences were indeed consecutive, not concurrent....

Moore's new lawyer, veteran defense attorney Tom Fortner, said the 50 years “seems like an awfully harsh sentence for a young person without a prior felony. There are a lot of people convicted for worse crimes who aren’t getting 50 years in prison.”  Fortner asked Judge Emfinger to reconsider his client’s case, saying his then-defense lawyer, Colette, failed to make clear to Moore how soon he would be eligible for parole.  Moore initially believed he would be eligible for parole as early as 2017, but it turned out he won’t be eligible until at least 2025. His tentative release date is 2061.

I find this case so very interesting and blogworthy because it strikes me as a a kind of Rorschach test for assessing the state and problems with modern sentencing systems. Though the article focuses on the severe sentence Moore got at the end of this story, one could reasonably complain about all the sentencing leniency he received for his considerable prior low-level offending. Similarly, though the article suggests it was peculiar and worrisome the local DA pushed for a 50-year sentence in a plea deal, one could reasonably wonder why a sentencing judge did not seem troubled by imposing this sentence. And while a 50-year prison term seems quite extreme for just a series of (minor?) burglary offenses, one could argue that this case was sentence just right if Moore can work hard to improve himself while incarcerated so as to earn parole after serving only 12 years.

May 3, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Monday, May 02, 2016

"Prosecutorial Analytics"

The title of this post is the title of this interesting-looking new article by Jason Kreag now avaible via SSRN. Here is the abstract:

The institution of the prosecutor has more power than any other in the criminal justice system. What is more, prosecutorial power is often unreviewable as a result of limited constitutional regulation and the fact that it is increasingly exercised in private and semi-private settings as the system has become more administrative and less adversarial. Despite this vast, unreviewable power, prosecutors often rely on crude performance measures focused on conviction rates.  The focus on conviction rates fails to capture and adequately evaluate the breadth of prosecutorial decision-making.

We can do better by fully implementing analytics as a tool to evaluate the prosecutorial function.  This tool has revolutionized crime-fighting.  Yet, it has been conspicuously absent as a tool to improve other aspects of the criminal justice system.  This Article demonstrates the promise of prosecutorial analytics to improve oversight and to promote systemic interests in justice, fairness, and transparency. It offers concrete examples of how analytics can 1) help eliminate race-based jury selection practices; 2) minimize prosecutorial misconduct; 3) uncover whether undesirable arbitrary factors shape prosecutorial discretion; and 4) provide better metrics for the judiciary, practitioners, and the public to evaluate prosecutorial performance.

May 2, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Digging deeply into Virginia's crowded prisons and parole paractices

A local public radio station in Virginia now has available at this link a detailed look as corrections practices in the state.  The umbrella title for all the coverage is "Crowded Prisons, Rare Parole: A Five Part Series," and here are the subheadings and introductions for each part of the series:

May 2, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Would prosecutors be less aggressive if significantly more monies were devoted to indigent criminal defense?

The question in the title of this post is the big question that lingers for me after review of this important New York Times op-ed authored by John Pfaff over the weekend.  The piece provides data to back up John's frequent Twitter lament that problems with indigent defense funding do not get enough attention nor play a sufficient role in analyses of problems with modern criminal justice systems.  The commentary, headlined "A Mockery of Justice for the Poor," merits a full read and here are a few key excertps:

In the landmark case Gideon v. Wainwright, the Supreme Court held in 1963 that the state or local government had to provide a lawyer to any defendant facing prison time who could not afford his or her own.  This was no minor decision.  Approximately 80 percent of all state criminal defendants in the United States qualify for a government­provided lawyer.

Yet despite this constitutional guarantee, state and county spending on lawyers for the poor amounts to only $2.3 billion — barely 1 percent of the more than $200 billion governments spend annually on criminal justice.  Worse, since 1995, real spending on indigent defense has fallen, by 2 percent, even as the number of felony cases has risen by approximately 40 percent.

Not surprisingly, public defense finds itself starved of resources while facing impossible caseloads that mock the idea of justice for the poor.  In Fresno, Calif., for instance, public defenders have caseloads that are four times the recommended maximum of around 150. In Minnesota, one public defender followed by a reporter estimated that he had about 12 minutes to devote to each client that day.  There is no way these lawyers can manage the cases being thrown at them.

In New Orleans, caseloads are so high that the parish’s public defender office has started to refuse to take cases, including murder cases.  Public defender offices in other states, including Florida, Missouri, New York and Pennsylvania, have taken similar steps when caseloads have grown too heavy.  To make things worse, 43 states now require indigent defendants to pay at least a portion of their lawyers’ fees, even though these defendants are by definition indisputably poor....

There is, however, a way out of this, one that the presidential candidates of both parties should embrace, one that should have broad bipartisan appeal. And it is an approach that no one is talking about.

The federal government, which now provides just a few million dollars per year to prop up local indigent defense services, could make an annual grant of $4 billion to state and local governments for indigent defense.  This is a mere 0.3 percent of the federal government’s approximately $1.2 trillion discretionary budget.  This money would triple spending on indigent defense, especially if the grant was tied to pre­existing spending by local governments so they couldn’t just cut their own spending one­-for-­one with the grant.

For Democrats, this plan would target a major cost of poverty and inequality and, because of the correlation between wealth and race, it would tackle at least some of the racial imbalances that permeate the criminal justice system.  For Republicans, who worry about state overreach and the government’s ability to oppress its citizens, meaningful public defense ensures that the poor, too, are able to check the state when it is acting in its most powerful capacity.

Funding indigent defense would also help scale back mass incarceration, a goal both parties share.  My research has shown that the primary source of prison growth in the 1990s and 2000s has been prosecutors’ filing of felony charges against more and more arrestees, many of whom in the past would have faced misdemeanor charges or no charges at all. Ensuring that prosecutors’ opponents are able to do their jobs competently would dampen prosecutorial aggressiveness.

Tellingly, as public defender caseloads have soared amid shrinking budgets, prosecutor caseloads appear to have held relatively steady, as funding and hiring of prosecutors generally rose over roughly the last 20 years.  Public defenders find themselves at an increasing disadvantage, surely contributing to our nation’s inability to really rein in prison population growth.  If defendants had well-­funded, effective representation, our adversarial system would do what it is intended to do.  What we have right now, however, simply is not adversarial: relatively well-­funded, well-­staffed prosecutor offices square off against public defenders whose caseloads defy imagination.

Funding public defense would ensure that poor people’s constitutional rights are protected, would advance a commitment to justice shared by liberals and conservatives alike, and would help roll back our staggering prison population.  It is also feasible, cheap by federal standards, and would have powerful, long­lasting effects.

I agree 100% with John's call for much greater funding of public defense — although I would much prefer a federal law that urged states to link criminal defense funding/spending to criminal prosecution funding/spending. I am not keen to have federal taxpayers provide an expensive "justice bailout" for all states disinclined to tax their own citizens to pay for constitutionally-required services for those they seek to (over)prosecute. (Indeed, I fear that at least some states now doing significant sentencing reform because of prison bills coming due might use clever accounting to afford more prison beds for more offenders if they get a massive yearly influx of federal cash to cover defense services.)

But I really question the notion that greater funding of public defense "would dampen prosecutorial aggressiveness" based on what I see in the operation of the federal criminal justice system. Though certainly not perfectly funded, federal public defenders seem to me to be among the best funded (and certainly the most consistently dedicated and capable and knowledgeable and experienced) of all defense phalanxes that I have seen. And yet I have seen precious little evidence that federal prosecutors are less aggressive because they are frequently facing these defense attorneys in federal criminal cases. (And, of course, we the very largest increase in any jurisdiction's prison population and the lengthy of sentences served over the last 30 years has been at the federal level.)

Moreover, in a few cases in which I have served as an expert witness or amicus at sentencing, I have sometimes perceived that certain federal prosecutors get even more aggressive when they realize that a particular defendant has the resources and personnel needed to put up an especially vigorous defense. (Indeed, I expressly warn some defense attorneys when they seek my formal assistance in a low-profile case that they should consider whether my involvement may risk doing more harm than good due to possible prosecutorial reaction to my involvement.) I do not mean to assert that federal prosecutors are distinctly unfair or uniquely aggressive when going after well-defended defendants, but I do mean to question whether it is really likely that prosecutors will be generally less likely to "strike hard blows" if they know the other side has more ability to defend against those blows.

That said, I do think better funding of state criminal defense is likely to better deter (or later identify) prosecutorial misconduct, and it also could and should have salutory effects on other aspects of state criminal justice systems --- e.g., better funded indigent defense services should be better able to focus on parole systems and expungement efforts and other back-end services for indigent defendants, and perhaps they also would bring more needed strategic constitutional litigation to assail particularly troublesome practices in some state systems. But, to wrap up, I think the only sure-fire way to "dampen prosecutorial aggressiveness," other than to reduce the number of prosecutors, is to dramatically reduce the number of crimes on the books and make sure (through mens rea and jury reforms) that prosecutors have a little more fear of losing when they first think about filing felony charges.

May 2, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

At SCOTUS, "age-old principes of conspiracy law" produces brand new division of Justices

More than six months after oral argument, the Supreme Court this morning finally released its opinion in Ocasio v. United States, No. 14-361 (S. Ct. May 2, 2016) (available here), which concerns the application of a federal conspiracy law surrounding extortion. Justice Alito wrote the opinion for the Court, and here is how it gets started:

Petitioner Samuel Ocasio, a former officer in the Baltimore Police Department, participated in a kickback scheme with the owners of a local auto repair shop.  When petitioner and other Baltimore officers reported to the scene of an auto accident, they persuaded the owners of damaged cars to have their vehicles towed to the repair shop, and in exchange for this service the officers received payments from the shopowners.  Petitioner was convicted of obtaining money from the shopowners under color of official right, in violation of the Hobbs Act, 18 U. S. C. §1951, and of conspiring to violate the Hobbs Act, in violation of 18 U. S. C. §371. He now challenges his conspiracy conviction, contending that, as a matter of law, he cannot be convicted of conspiring with the shopowners to obtain money from them under color of official right. We reject this argument because it is contrary to age-old principles of conspiracy law.

Few should be surprised that Justice Alito in Ocasio was not moved by a criminal defendant's effort to make more challenging pursuit of a conspiracy charge (a type of crime Judge Learned Hand famously describes as the "darling of the modern prosecutor's nursery").  But I was certainly surprised with how the votes of the other seven Justices broke down:

ALITO, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which ROBERTS, C. J., joined.

Because I do not spend all that much time thinking about either extortion or conspiracy, I doubt I will have much more to say about Ocasio. But I would be grateful to hear from readers in the comments as to whether they think this opinion was worth the wait and/or whether the unusual divides of the Justices has a possible significance beyond this one case.

May 2, 2016 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Justice Breyer dissents alone(!) in California capital case concerning long delays before execution

At the end of this morning's Supreme Court order list, Justice Breyer has a brief two-page dissent from the Court's decision to deny certiorari review in a capital case in which "Richard Boyer [who] was initially sentenced to death 32 years ago" requested that the Justices "consider whether the Eighth Amendment allows a State to keep a prisoner incarcerated under threat of execution for so long."  Here is part of what Justice Breyer has to say:

These delays are the result of a system that the California Commission on the Fair Administration of Justice (Commission), an arm of the State of California, see Cal. S. Res. 44 (2004), has labeled “dysfunctional.” Report and Recommendations on the Administration of the Death Penalty in California 6 (2008)....  It noted that many prisoners had died of natural causes before their sentences were carried out, and more California death row inmates had committed suicide than had been executed by the State.  Indeed, only a small, apparently random set of death row inmates had been executed. See ibid. A vast and growing majority remained incarcerated, like Boyer, on death row under a threat of execution for ever longer periods of time....

Put simply, California’s costly “administration of the death penalty” likely embodies “three fundamental defects” about which I have previously written: “(1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.”  Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at 2); see Lackey v. Texas, 514 U. S. 1045 (1995) (memorandum of Stevens, J., respecting denial of certiorari); see also Valle v. Florida, 564 U. S. 1067 (2011) (BREYER, J., dissenting from denial of stay); Knight v. Florida, 528 U. S. 990, 993 (1999) (BREYER, J., dissenting from denial of certiorari). 

Notably, not a single other Justice joined this dissent, not even Justice Ginsburg who was along for ride a little less than a year ago when Justice Breyer wrote his anti-death penalty magnum opus dissent in Glossip.  That reality reinforces my belief that death penalty abolitionists should not be especially hopeful that a majority of Justices will find capital punishment per se unconstitutional anytime soon.

May 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Reviewing the type of federal drug case that the SRCA should most impact

Mandatory_minimums_1abe826ceaaedee05283c916fe4b2585.nbcnews-ux-600-480This lengthy new NBC news piece, headlined "As Drug Sentencing Debate Rages, 'Ridiculous' Sentences Persist," focuses on one notable federal drug defendant subject to a notable federal drug mandatory minimum that could be impacted by federal statutory sentencing reform. Here are excerpts:

When he was an addict and petty criminal, Leo Guthmiller knew little, and cared less, about the federal government's harsh drug sentencing laws. The worst he'd endured was 90 days at the county lockup in Lincoln, Nebraska.

Then, last April, nearly two years after he'd stopped popping painkillers and smoking methamphetamine, Guthmiller was arrested by two federal agents as he headed for a drug counseling session. He later learned why: a junkie and his girlfriend, facing stiff prison sentences, had told investigators that Guthmiller had introduced them to his meth dealer around the time he was getting sober. That made him the middleman in a street-level drug distribution scheme.

Because this was a federal case, and the amount of meth exceeded 500 grams, or 1.1 pounds, Guthmiller was suddenly facing at least 10 years behind bars as a co-conspirator.... The charge thrust him, unwittingly, into a raging debate over a pillar of America's war on drugs: mandatory-minimum sentences. Intended to sideline high-level traffickers, the laws have been used to sweep thousands of nonviolent, small-time offenders into epic prison terms....

Guthmiller didn't dispute the couple's accusation. But he bristled at the government's portrayal of him as a scheming operative. Besides, he was a changed man: sober, working, studying for his GED, leading AA meetings, completing a drug court program, newly married. Still, he pleaded guilty, unwilling to risk a trial that could end in an even longer prison term. "I'm not an innocent person, but at the same time this is all a bit much, I feel," Guthmiller told NBC News.

At his sentencing in mid-February, U.S. District Court Judge John Gerrard agreed. He praised Guthmiller's turnaround, but said federal drug statutes gave him no choice. He called the case "Exhibit A" on why Congress needed to pass The Sentencing Reform and Corrections Act, which would give judges more flexibility. "A 10-year mandatory minimum sentence in a case like this is absolutely ridiculous," Gerrard said from the bench. "And the only reason I am imposing the sentence that I am imposing today is because I have to."...

The judge's remarks caught the attention of the Washington, D.C., advocacy group Families Against Mandatory Minimums. As he prepared to spend the next decade behind bars, Guthmiller found himself cast as a case study in America's unforgiving drug laws. "The whole idea is these 10-year sentences were written by Congress to go after serious drug offenders, and they're being applied to a guy who is home and is going to drive himself to prison," said Kevin Ring, the group's vice president. "He obviously isn't this major criminal that everyone should be so scared of."

This is a key point in the drug-law reform effort, which has inspired an unlikely alliance among Democrats and Republicans, many of whom gathered at the White House last week to discuss their campaign. Mandatory minimum sentences, toughened during 1980s crime panics, established criteria under which judges had to impose lengthy prison terms for drug trafficking. The penalties depended on the type of drug, the amount of it, the offender's criminal history and the nature of the crime — including whether the offense involved violence, weapons or children. The new laws triggered an explosion in the U.S. prison population, contributing to a dramatic decline in crime rates but also costing taxpayers millions.

That cost-benefit balance has since tipped. Researchers now say that mass incarceration's impact on the crime rate has ebbed. Studies show that the likelihood of punishment, rather than the length of a prison sentence, is more likely to deter criminals. And there are now millions of nonviolent ex-offenders — a disproportionate number of whom are black — unable to contribute to the economy, including many who return to crime. Reformers argue that the money America spends on prisons would be better used for cops, schools and alternatives to jail, such as probation and drug courts.

In a 2011 report to Congress, the U.S. Sentencing Commission found that mandatory minimums focused too heavily on the amount of drugs and not enough on the offender's role in the trafficking operation. The commission has since loosened some of its guidelines retroactively, allowing thousands of nonviolent, low-level drug offenders to leave prison early. President Barack Obama joined the effort by granting clemency to many others.

Those moves are considered Band-Aids compared to the larger fix offered by the Sentencing Reform Act, legislation that would allow judges to impose shorter prison terms for bit players. But the bipartisan bill is bogged down by election-year politics. The Justice Department, meanwhile, has tried to change the system from within, ordering federal prosecutors to focus on high-level dealers. It appears to be working: the number of mandatory-minimum cases has dropped to 45 percent of all federal drug cases, down from 66.8 percent in 2007.

John Higgins, chief of the narcotics unit at the U.S. Attorney's Office in Nebraska, said in a statement that his prosecutors followed the Justice Department's advice, seeking mandatory minimums "only in those cases that warrant it." That included Guthmiller's, he said. He declined to go into detail, but pointed to court hearings in which prosecutors alleged that Guthmiller's 2013 matchmaking between the dealer and the couple led to the sale of 15-pounds of meth. "Methamphetamine is the number one drug threat in Nebraska," Higgins said.

May 2, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Saturday, April 30, 2016

Emerging news about two new notable gun control and gun safety efforts

These two recent stories about gun control and gun safety efforts from the folks in California and from the federal government have caught my eye lately:

Long-time readers ikely know I have long thought both governments and others ought to be investing in smart gun technologies to try to cut down on gun violence and related harms. At the very least, I think modern guns ought to have some kind of built in technology that could provide, though could/GPS technology, some kind of digital trace whenever used by someone other than their licensed owner (I have in mind a kind of Lojack system that would only report when the licensed owner is not the user).

April 30, 2016 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (1)

Georgia continuing to lead and innovate state sentencing reform with new focus on mass probation

The most astute observers of criminal justice systems realize that tackling mass incarceration will always be an uphill battle if we do not also look closely at the realities of (even more massive) modern probation and other laws and rules that place many persons under significant criminal justice supervision.  Consequently, I am encourage to see that the folks in Georgia, who have already been at the forefront of state-level sentencing reforms, are now turning to this issue. This local article, headlined "Nathan Deal aims to cut ‘extraordinarily high’ number of Georgia offenders on probation," tells the basic story:

Fresh off another round of changes to Georgia’s criminal justice system, Gov. Nathan Deal said he’ll urge lawmakers next year to tackle the stubborn problem of the “extraordinarily high” number of offenders on probation in Georgia. He wants to target the rise of “split sentencing” in Georgia – a practice in which a defendant serves part of the sentence behind bars, and then often a greater time outside prison. He called it an “unusual phenomenon, and we don’t know why it’s happening.”

“We have a significantly high number of people who are under probation supervision – an extraordinarily high number compared with most other states,” he said. “You’re going to see the general area of probation being a focus point.” Georgia led the nation in placing its citizens on probation in 2015 and topped the charts for its probation rate, which critics said reflected an overuse of the system.

The state moved to reform the misdemeanor probation system after an AJC investigation showed courts contract with private probation companies to “supervise” and collect payments from people who can’t afford to pay off expensive traffic tickets and other misdemeanor fines on the day they go to court. Deal’s Council on Criminal Justice Reform has recommended that lawmakers consider taking another step in 2017 by decriminalizing most traffic violations and rethinking the length of probation terms.

April 30, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Friday, April 29, 2016

With nine months left in Obama Administration, apparently it is time for a clemency last call

Regular readers know I am a long-time critic of how modern presidents have (failed to) use their historic clemency powers and that I am not an especially big fan of how the Obama Administration and others have approached trying to do things better of late.  Another frustrating piece of this story is captured by this new Politico piece headlined "Obama team making last-ditch push on commutations: Top Justice official says non-violent drug offenders are running out of time to apply for reduced sentences."  Here are excerpts:

The Obama Administration is pressing hard to keep the clock from running out on thousands of federal drug convicts hoping to get their prison sentences shortened by President Barack Obama before he leaves office in January.  Earlier this week, the No. 2 official at the Justice Department pleaded with volunteer lawyers working on those cases to get the commutation applications filed right away.

"Time is of the essence and the inmates who raised their hands for your assistance still need your help," Deputy Attorney General Sally Yates wrote in the unusual letter, dated Monday and obtained by POLITICO. In the message to attorneys working through a consortium known as Clemency Project 2014, Yates noted that the group has set internal deadlines for most cases as soon as Monday of next week and for other cases in mid-May.  "I cannot stress how important it is [to] meet those deadlines," Yates wrote. "If those deadlines cannot be met, we need to ensure that inmates have sufficient time to file pro se petitions, and that the Department of Justice has enough time to process and review them."

Obama launched his so-called "Clemency Initiative" in early 2014, seeking to identify thousands who have served long drug-crime sentences that would likely have been shorter under current law. The effort was aimed at granting commutations to those who met certain criteria, such as being non-violent, low-level offenders. The announcement triggered a flood of clemency requests from close to 30,000 inmates — more than 10 percent of the federal prison population. The level of interest swamped the handful of lawyers in the office of the Justice Department's Pardon Attorney and overwhelmed the newly-created Clemency Project.

While the group has said nearly 4,000 attorneys were recruited to prepare applications, the process has been a tough slog, slowed by bureaucratic hurdles in obtaining paperwork and the reliance on lawyers who usually have no prior experience seeking clemency. Yates' letter to the Clemency Project lawyers says they have submitted "more than 850 petitions" thus far. That's a dramatic increase from the roughly 30 the group's lawyers had handed in about a year ago, but still far short of the number likely to yield the thousands of commutations some Obama administration officials expected at the outset.

The applications are also backlogged at the Justice Department, which had more than 11,000 commutation requests of all types pending at the end of March, according to Justice's website. In January, the Justice Department official who'd overseen the effort since the spring of 2014 resigned, complaining of a lack of resources and that her recommendations were not always being relayed to the White House. "The Department has not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president," Pardon Attorney Deborah Leff wrote in her resignation letter, obtained by USA Today through a Freedom of Information Act request.

White House Counsel Neil Eggleston said at a POLITICO Playbook Breakfast earlier this month that the Pardon Attorney's office has gotten a boost in resources and that some of the concerns Leff raised have been addressed. "The pardon attorney's office has a little more resources, which is good, and I have regular dealings with the pardon attorney directly, so to the extent that Ms. Leff was complaining about that, that was solved. Actually, it was solved before she left,” Eggleston said. “And so I think that we're moving forward in a pretty good way here."...

Last year, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) questioned whether the Justice Department had essentially outsourced its role in the process to the Clemency Project 2014 lawyers. A Justice Department official rejected that idea at the time, saying that the volunteer project — backed by the American Civil Liberties Union, the National Association of Criminal Defense Lawyers and others — was "completely separate" from Justice.

However, Yates' letter this week highlights the Clemency Project's internal deadlines and thanks the group for having "screened out ... 20,000 ineligible applicants."  Critics, noting that Obama has granted commutations to some applications who did not appear to meet all the criteria, have expressed concern that some of those prisoners may have compelling cases for commutations but will be dissuaded from applying by having been screened out.  In addition, in a less-noticed portion of Leff's letter, she said she had "been instructed to set aside thousands of petitions for pardon and traditional commutation."

I have got tired of being tired of hearing these stories of too many clemency applicants and too little ability to procees them all. But I will continue to note (and lament) all this, and continue to hope that Prez Obama will vindicate all the energies and excitement advocates devoted to these matters by granting at least a few hundred more commutations and some significant number of pardons before he passes on the keys to the Oval Office next January.

April 29, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Thursday, April 28, 2016

Senator Jeff Sessions (and thus Donald Trump?) comes out swinging against revised SRCA

Yh_3216_aAlabama's US Senator Jeff Sessions, whom I believe was the first notabe elected federal official to endorse Prez candidate Donald Trump, has wasted no time condemning, in intricate detail, the just-released revised version of the Senate's Sentencing Reform and Corrections Act (noted here).   This press release, which runs over 1500 words and has too many criticisms to readily summarize, includes these passages:

The changes made to the criminal sentencing bill fail to fix the bill and leave us with legislation that still would release thousands of violent felons and endanger millions of Americans whose safety is increasingly threatened by rising crime rates.  While visiting concern on prisoners is an important and valuable act, we must understand a core responsibility of the government is safety of the public.  The wise approach is to slow down and evaluate the trends before accelerating prison population decline. 

Since 2011, the federal prison population has decreased by over 20,000 (over 9 percent), bringing it to its lowest level since 2006. It will continue to decline by another 10,000 over the next year, bringing it to its lowest level since 2004.  Drug prosecutions have dropped 21 percent since 2011.  The Sentencing Commission recently ordered the release of 46,276 federal drug trafficking felons from federal prison, including those who carried semi-automatic weapons, participated in international heroin smuggling rings, and have violent criminal histories.  And just last year, the Obama Administration released 90,000 criminal illegal aliens from custody.

Meanwhile, homicides in the 50 largest U.S. cities rose nearly 17 percent in 2015 — the largest single-year increase since at least 1960.  In medium-sized cities, violent crime increased 5.3 percent.  The country is in the midst of a historic heroin epidemic where 120 people die each day from overdoses. 

Federal drug and sentencing laws have already been considerably relaxed.  Congress must examine the potential far-reaching consequences of what has occurred before going any further.  It is counterintuitive to further weaken penalties for drug traffickers, especially heroin traffickers, and to enable the release of several thousand more incarcerated drug and gun felons, particularly at this time....

According to Gallup, Americans are more concerned about crime than they have been in 15 years.  If ever there was a time to release more violent felons into our communities, it most certainly is not now.  Passing this legislation would not only be unwise, it would be unsafe....

Despite assurances otherwise, the revised bill still shortens mandatory minimums for repeat drug traffickers, including those who carried a gun, and would allow for early release of those currently in federal prison.... Moreover, this proposal would provide for leniency for illegal alien drug traffickers....  

The revised bill adds a provision to shorten mandatory minimums for drug traffickers who smuggle drugs into the U.S. by boat or submarine.  These criminals have never been eligible for such leniency and are rarely if ever U.S. citizens.  This provision has already been tagged as the “Scarface” provision.  Attorney General Loretta Lynch recently testified before the Senate Judiciary Committee that other than the Southern border, the majority of drugs come into the U.S. by maritime routes....

Before, the bill had a pro-law enforcement provision described by the sponsors as expanding the reach of the enhanced mandatory minimum for firearms offenses to those with prior state firearms offenses.  That provision was removed entirely.

The revised bill further expands the statutory “safety valve” to major drug traffickers, including those with multiple prior criminal convictions....  The bill still provides leniency for illegal alien drug traffickers.

I am not sure if this criticism will keep the revised SRCA from being brought up for a vote, but I do think the connection between Senator Sessions and presumptive GOP Prez candidate Trump provides yet another significant impediment to this bill becoming law.

Prior related post:

April 28, 2016 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (14)

"Senators Announce New Provisions & Cosponsors to Bipartisan Sentencing Reform and Corrections Act"

The title of this post is the title of a US Senate Judiciary Committee press conference that took place this afternoon and can be watched at this link (though you need for fast-forward to about the 11:45 mark of the recorded video).  This Reuters article provides these highlights:

A revised criminal justice reform bill moved closer to a full U.S. Senate vote on Thursday when it gained support from more Republicans after being stalled for months in Congress.

In a legacy-shaping issue for President Barack Obama, the measure's sponsors announced four new Republican co-sponsor senators and a new version of the bill at a press conference in the Senate. The measure now has 37 co-sponsors, according to Senate Judiciary Committee Chairman Charles Grassley. Grassley said he had been waiting for the bill to be finalized before asking Senate Majority Leader Mitch McConnell to bring it up for a full Senate vote, but that "it is time for those discussions to start right now."

As revised, it still lowers mandatory minimum sentences for some non-violent federal drug offenders, but it no longer applies to anyone convicted of a serious violent felony. That change was a response to conservative critics of the bill, which is central to Obama's efforts to overhaul the country's federal criminal justice system and reduce prison overcrowding. That effort has been a rare example of Republican and Democratic agreement in the polarized Congress.

The bill's advocates have said they hope the revisions and new co-sponsors, such as Republican senators Mark Kirk of Illinois and Steve Daines of Montana, will convince McConnell to bring up the bill for a Senate vote.  Daines and Kirk lent their support after adding minor requirements, including a provision that savings from it go toward purposes such as fighting gangs of national significance.

After a group of conservative Republican senators led by Tom Cotton of Arkansas claimed in January the reforms would release violent felons, the bill’s authors began excising parts of the proposal that eased the sentences of violent criminals. The bill now includes a new mandatory minimum sentence for crimes involving the opiate fentanyl, mirroring parallel sentencing reforms that await a floor vote in the U.S. House of Representatives.

The House legislation is likely to contain changes to "mens rea" laws that govern criminal intent, said Senator John Cornyn, a sponsor of the Senate bill, at Thursday's press conference. Mens rea reform was excluded from the Senate measure because its authors were divided on the issue. Democratic lawmakers generally oppose strengthening mens rea requirements on the grounds it would enable more corporate malfeasance as it is difficult to prove the "intent" of a corporation.

To exclude violent criminals from the Senate bill, the authors removed a section that lowered minimum sentences for unlawful gun owners with three prior convictions for violent felonies or serious drug offenses, known as “armed career criminals.” Such criminals represent nearly a fifth of the 12,908 current inmates who would have been eligible for resentencing under the old bill, according to the U.S. Sentencing Commission.

The folks at FAMM have this press release responding to this news, headlined "Strengthen, Don’t Weaken, Sentencing Reforms," which includes this quote from FAMM leader Julie Stewart:

“It’s hard not to get caught up in the enthusiasm of having a tenacious group of bipartisan Senators seek sentencing reform. However, this bill was very modest to begin with, and Congress should be strengthening it, not weakening it. In the last several days, Oklahoma, Maryland, and Iowa lawmakers have passed bold reforms that reduce or eliminate mandatory minimum drug sentences. Congress should be following that example, capitalizing on public support for sentencing reform and passing significant reform that will seriously impact who goes to prison and for how long."

The folks at the Brennan Center have this press release headlined "Senate Should Swiftly Pass Revised Sentencing Bill."

These developments make me somewhat more optimistic that a big sentencing reform bill will get to Prez Obama's desk in the next few months, but I am still not quite ready to say enactment of such reforms are now probable.

A few 2016 related posts:

April 28, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Candidate Clinton promises to "institute gender-responsive policies in the federal prison system and encourage states to do the same"

Ap_clinton_lb_151013_12x5_1600Yesterday in this post I sought readers' perspectives on whether Hillary Clinton or Donald Trump would likely end up being a "better" sentencing President. Perhaps realizing I am not the only wondering on this front, today CNN published this notable new commentary authored by Hillary Clinton under the headline "Women and prison -- the cost in money and lives." Here are some extended excerpts (with one sentence emphasized):

Mass incarceration has torn families apart, impoverished communities, and kept too many Americans from living up to their God-given potential.  But mass incarceration's impact on women and their families has been particularly acute — and it doesn't get the attention it deserves....

The United States' prison and jail population includes 215,000 women — nearly one-third of all female prisoners worldwide, and 800% more women than were in prison four decades ago.  African-American women are more than twice as likely to be in prison than white women.

But women aren't the only ones affected when they are sent to prison.  The high number of women in prison — and the long lengths of their sentences — destabilizes families and communities, especially their children.  Since 1991, the number of children with a mother in prison has more than doubled. Mothers in prison are five times more likely than fathers in prison to have to put their children in foster care while they serve their sentences.

We can't go on like this. It is time we reform our broken criminal justice system.  First, we need to reform policing practices, end racial profiling, and eradicate racial disparities in sentencing.  Second, we need to promote alternatives to incarceration, particularly for nonviolent and first-time offenders, so families aren't broken up.  We need to improve access to high-quality treatment for substance abuse, inside and outside the prison system, because drug and alcohol addiction is a disease, not a crime — and we need to treat it as such.

And third, we need to be deliberate about understanding the different paths that can land women in prison, be more attentive to women's unique needs while they are incarcerated, and do more to support women and their families once they are released.  I will institute gender-responsive policies in the federal prison system and encourage states to do the same — because women follow different paths to crime than men, and face different risks and challenges both inside and outside the prison walls, and every part of the justice system, from sentencing to the conditions of confinement to re-entry services, should reflect women's unique needs. 

Research shows that women's relationships ... are often a significant risk factor for becoming involved with the justice system. Most women in prison are there because of nonviolent drug or property crimes.  Over 60% of them report drug dependence or abuse in the year before they went to prison. Many of them grew up in abusive households ... and they are more likely than men in prison to have experienced sexual abuse or trauma in their life before prison.

And too often, a woman and her children continue to live with the consequences even after she has served her time and paid her debt to society.  Because formerly incarcerated people face limited job opportunities, an entire family is effectively punished by a woman's time in prison.  "Banning the box" — preventing an employer from asking about criminal history at the initial application stage, so that individuals have a chance to compete for jobs on a fair basis — is a necessary and important step, but it isn't enough.  In addition to job training and interview coaching, women returning to their communities after years behind bars need safe housing for themselves and their children, continuity of health care, and above all a supportive community....

Women and the families they support are being crushed by a criminal justice system that costs far too much — in state and federal budgets, and in lives derailed and economic opportunity lost — without making us safer.  Too often, people are prejudiced against the formerly incarcerated — in employment, in housing, in everyday interactions.  We say we are a nation of second chances — and it's time that we act like it.

I am, generally speaking, quite supportive of "gender-responsive policies" in our criminal justice systems, particularly because there are lots of evidence-based reasons for viewing (and sentencing) most female offenders as much lesser threats to public safety than most male offenders.  That said, I am not entirely sure what specific sentencing laws and prison policies need to be changed dramatically in federal and state systems in order to make them more "gender-responsive."  Should (and legally could) a Prez Clinton institute an executive order providing that federal resources earmarked for prison treatment and post-prison reentry programs must be used first for all female federal offenders before any male offenders have access to these programs?

April 28, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Oklahoma joins long list of "red states" enacting significant sentencing reforms

As reported in this local article, headlined "Criminal justice reform bills signed into law by Oklahoma governor," another state known for its conservative politics should now also be known as another state that has enacted significant reforms intended to soften its sentencing system and reduce its prison population. Here are the details:

Four criminal justice reform measures were signed into law by Gov. Mary Fallin on Wednesday. The action comes at a time when the state’s prison system is operating at 122 percent of capacity.

“We want to be tough on crime, but we want to be smart on crime,” Fallin said.

The criminal justice reform bills she signed Wednesday are:

  • House Bill 2472, which gives prosecutors discretion to file charges for crimes that are not subject to the 85 percent rule as misdemeanors instead of felonies. The 85 percent rule requires that those convicted of certain crimes, including rape and murder, serve at least 85 percent of their sentences before they can be considered for release.
  • HB 2479, which reduces the mandatory minimum sentence for drug offenders charged only with possession.
  • HB 2751, which raises the threshold for property crimes classified as felonies to $1,000 from $500.
  • HB 2753, which would broaden defendants’ eligibility for drug courts and community sentencing. The measures are designed to curb the growing prison population.

“These measures are just the beginning,” said Rep. Pam Peterson, R-Tulsa, the House author of the bills. Fallin said it costs just under $20,000 a year to incarcerate an offender and about $5,000 a year for one defendant in drug court.

House Speaker Jeff Hickman, R-Fairview, said the state still has a crisis in corrections and incarceration. “This is not the end of the mission,” he said, adding that other criminal justice reform bills are working their way through the legislative process.

Former Tulsa County District Attorney Tim Harris attended the bill signing in the Blue Room at the Capitol. The measures give the state more options to prevent Oklahomans from becoming convicted felons and help them get the treatment they need, Harris said. “It is not soft on crime,” he said. “It holds criminals accountable without breaking the bank. It is cost neutral to the taxpayer right now.”

Oklahoma County District Attorney David Prater said the state needs to take steps to move mental health and substance abuse treatment to the front end. “With measures like this, I do believe that ultimately we will see a decrease in the prison population while not increasing violent crime, and actually this will have a positive impact, I believe ultimately, on public safety,” Prater said.

April 28, 2016 in Drug Offense Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Lots of discussion of felon disenfrachisement after Virginia Gov boldly restores voting rights

A new set of commentaries about felon disenfranchisement are among the valuable consequences of Virginia's Gov using his executive clemency power to restore voting rights to more than 200,000 former felons.  Here is a sampling:

Prior related posts:

April 28, 2016 in Collateral consequences, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Wednesday, April 27, 2016

Reviewing the final SCOTUS oral argument week that was full of criminal justice issues

As noted in this post last week, three of the final five cases that the Justice were scheduled to hear during this last week of the Term's oral arguments involved criminal justice issue.  The highest-profile and perhaps most consequential of these cases was argued today  concerning the public corruption verdict against former Virginia Gov Bob McDonnell.  Thanks to the always great folks at SCOTUSblog, I can link here to two posts about the McDonnell and to single post on the two other cases heard yesterday:

April 27, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Intriguing intricate split Seventh Circuit panel discussing Indiana sentencing appeals and ineffective assistance of appellate counsel

A split Seventh Circuit panel handed down an interesting habeas opinion yesterday in Miller v. Zatecky, No. 15-1869 (7th Cir. April 26, 2016) (available here). One needs to be a hard-core habeas AND state sentencing fan to be fully engrossed by all the substantive issues covered in the majority panel opinion or the dissent.  Still, there is some interesting extra (law-nerd?) spice in both opinions thanks to good work by their authors --- Circuit Judge Easterbook and District Judge Lynn Adelman (sitting by designation), respectively. 

What struck me as blog-worthy from Miller, especially because I spend a lot of time thinking about how to make appellate review of federal sentences efficient and effective in a post-Booker world, was this passage and footnote from the dissent about Indiana state sentencing appeals:

Indiana appellate courts are authorized to independently “review and revise” sentences.  Ind. Const. Art. 7, § 4; Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011).  This authority is implemented through Indiana Appellate Rule 7(B), which provides that the appellate court may revise a sentence if after due consideration of the trial court’s decision the appellate court finds the sentence is inappropriate in light of the nature of the offense and the character of the offender.  Pierce, 949 N.E.2d at 352.  As Miller shows in his brief, Indiana appellate courts have not hesitated to use this authority; he cites no less than 11 cases in which Indiana appellate courts shortened sentences in similar cases.[FN 2]

[FN 2] Pierce v. State, 949 N.E.2d 349 (Ind. 2011) (revising 124 year sentence on four counts of child molestation to 80 years); Sanchez v. State, 938 N.E.2d 720 (Ind. 2010) (revising total sentence of 80 years on three counts of child molestation to 40 years); Harris v. State, 897 N.E.2d 927 (Ind. 2008) (revising consecutive sentences of 50 years on two counts of child molesting to concurrent); Smith v. State, 889 N.E.2d 261 (Ind. 2008) (revising four consecutive sentences of 30 years each, a total of 120 years, to a total of 60 years); Monroe v. State, 886 N.E.2d 578 (Ind. 2008) (reducing sentence of 100 years to 50 years); Estes v. State, 827 N.E.2d 27 (Ind. 2005) (revising sentence of 267 years on 14 counts of child molesting and sexual misconduct with a minor to 120 years); Serino v. State, 798 N.E.2d 852 (Ind. 2003) (revising sentence of 385 years on 26 counts of child molestation to 90 years); Kien v. State, 782 N.E.2d 398 (Ind. Ct. App. 2003) (revising consecutive sentences of 40 years on three counts, a total of 120 years, to 80 years total); Ortiz v. State, 766 N.E.2d 370 (Ind. 2002) (revising 30 year consecutive sentences on child molesting counts to run concurrently); Haycraft v. State, 760 N.E.2d 203 (Ind. Ct. App. 2001) (revising 190 year sentence for child molesting and related offenses to 150 years); Walker v. State, 747 N.E.2d 536 (Ind. 2001) (revising consecutive sentences of 40 years on two counts of child molesting to be concurrent).

April 27, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Former House speaker gets black hole of federal prison for 15 months after sentencing supernova

In this post yesterday, I explained why I called today's sentencing of former House Speaker Dennis Hastert a sentencing supernova. Today, this ABC News piece reports on the sentencing events and outcome in federal court this morning:

Former Speaker of the House John Dennis Hastert was sentenced today in federal court to 15 months in prison and two years of supervised release after he faced one of his accusers, who identified himself publicly for the first time as Scott Cross, a former Yorkville High School wrestling student.

Cross, who was until now identified in court documents only as “Individual D,” took the stand and introduced himself as a father, husband and businessman. Cross described his abuse by Hastert as “his darkest secret as he [Hastert] became more powerful.”

Hastert has also been required to comply with a sex offender treatment program. The sentence follows an almost year-long hush money case hinging on payments Hastert made to a student he allegedly sexually abused while acting as a wrestling coach at Yorkville High School in Illinois.

Cross said Hastert had "offered massages" to him in order to help him lose weight. He went on to describe a one-time incident when he was 17, saying Hastert "grabbed my penis and began to rub me. Stunned, I pulled up my shorts and ran out of the locker room.” Cross said he decided to testify after Hastert and his defense team reached out to his brother, Illinois politician Tom Cross, for a letter of support. Tom Cross served in the Illinois House of Representatives for 22 years. Scott Cross was on the varsity wrestling team at Yorkville High School when Hastert was a coach in the 1970s.

Using a walker, Hastert approached the judge. “I am deeply ashamed to be standing here today,” he said. “I know I am here because I mistreated some of my athletes that I coached. ... I want to apologize to the boys I mistreated. I was wrong and I accept that.” Judge Durkin referred to Hastert as a "serial child molester" while delivering the sentence.

The man formerly second in line for the presidency was wheeled into court this morning by attendants. In a January court filing, Hastert’s lawyers revealed that the former speaker’s health had rapidly declined following a stroke and a blood infection, and that he now needed “assistance for most daily activities.” Hastert technically faced a maximum penalty of five years.

Dozens of Hastert’s supporters have written letters to the judge asking for mercy, including former Republican Congressional leader Tom Delay, who called Hastert “a man of integrity. He loves and respects his fellow man.” CIA Director Porter Goss called Hastert “a rock solid guy with center-of-the country values.”

Hastert pleaded guilty in October to violating bank laws in connection with paying out hush money over the years allegedly to one of his victims, and in April his defense team made a filing publicly acknowledging the “harm” he caused to “others” for “misconduct that occurred decades ago.”

April 27, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8)

Seeking serious, sober, sophisticated substantive analysis: would Clinton or Trump be a "better" sentencing President?

After last night's primary results, I have resolved myself to the less-than-thrilling prospect of being presented in November with a Prez voting choice between Hillary R. Clinton and Donald J. Trump.  On some issues unrelated to criminal justice systems, it likely will be easy to figure out which candidate is more likely to pursue (and achieve) policy developments that are more to my liking as a (moderate?) libertarian.  But, as the question in the title of this post is meant to suggest, I am genuinely unsure whether Clinton or Trump would end up being a "better" sentencing President.  (I have put the term "better" in quotes here because I fully recognize that lots of different people have lots of different views about what makes for a good President on sentencing issues; I hope thoughtful folks with lots of different prespectives will chime in.)

Back in 2008, I believed that then-candidate Barack Obama would prove to be a "better" sentencing President than Hillary Clinton or John McCain.  (A big factor in this judgment was not just the Clintons' criminal justice track record, but especially Hillary's worrisome opposition to retroactive implementation of the small reduction in crack guideline sentences that the US Sentencing Commission completed in 2007.)  In April 2012, based in part on the fact that Prez Obama did not live up to my hopes during his first term, I wrote this Daily Beast commentary making the point that "given policy and practical developments of recent years, there’s a good argument to be made that a President Romney could prove to be more likely to make real and long-term reforms to American criminal justice."  In that commentary, I urged then-candidate Romney to "embrace what Right On Crime calls the 'conservative case' for criminal-justice reform, and in doing so appeal to groups of independent and minority voters (especially young ones) while demonstrating a true commitment to some core conservative values about the evils of big government."

Of course, Romney did not take my advice (and lost), and Prez Obama has proven much more committed to working on sentencing issues during the second half of his second term.  Still, perhaps ironically, I think a Prez Romney would have ended up supporting AND getting enacted the kinds of federal statutory sentencing reforms that have been bogged down in Congress in recent years.  I say this based in part on legislative reforms in the states, including my own Ohio: states led by GOP govs have generally been more inclined to enact significant legislative sentencing reforms.

I set this all out because I genuinely think, no matter what your vision of "better" sentencing, it is now time to start some serious, sober and sophisticated substantive assessments what kind of sentencing President Hillary Clinton or Donald Trump might prove to be.  In many ways, both seem to me to be comparable (and annoying) enigmas on sentencing law and policy: in the past, both have generally said only whatever seemed politically useful at the time of their statements; in the future, both are sure to face challenges getting Congress to enact whatever criminal justice reform agendas they might want to pursue.  So, I hope anyone who care a lot about these issues will help me try to start a robust, rigorous conversation on this front.  

(For the record, I expect that, after nominations and party platforms become official this summer, I will do a series of Clinton vs. Trump posts on specific sentencing issues like the death penalty, clemency, and drug/white-collar sentencing.)

April 27, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3)

"Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Records"

The title of this post is the title of this lengthy new report from the National Employment Law Project. Here is an excerpt from its executive summary:

This paper examines the significant flaws in state occupational licensing criminal background check requirements.  One barrier to employment that regularly appears in state occupational licensing laws is the blanket ban, which automatically disqualifies people with certain records.  As a gauge for the frequency of blanket bans in licensing laws across the nation, the ABA Inventory reports over 12,000 restrictions for individuals with any type of felony and over 6,000 restrictions based on misdemeanors.  In addition, the ABA Inventory reports over 19,000 “permanent” disqualifications that could last a lifetime and over 11,000 “mandatory” disqualifications, for which licensing agencies have no choice but to deny a license.

Another aspect of the barriers facing workers with records is the prevalence of overly broad criminal record inquiries. The rationale for far-reaching inquiries is ostensibly compelling — licensing agencies seek robust information to advance public safety and health.  No research, however, supports the persistent misconception that a workplace is less safe if an employee has a past record.  Thus, even seemingly rational inquiries frequently operate as overly broad bans against anyone with a record.

License applicants with records face additional challenges presented by a lack of transparency and predictability in the licensure decision-making process and confusion caused by a labyrinth of different restrictions.  Requirements for a single occupation vary widely across states, as do the standards applied to evaluate past offenses.  Further complicating matters, the statutory language and procedures governing individual, or classes of, professions often differ from more general state licensing statutes.

April 27, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Tuesday, April 26, 2016

Fascinating backstory behind big donation behind new "Criminal Justice Reform Center" at SMU Dedman School of Law

This local story out of Dallas, headlined "Deason and Koch give $7 million to SMU Dedman Law for criminal justice reform," tells an old criminal justice story from decades ago that in part explains the origins of a new criminal justice research center. Here are the details:

Dallas businessman Doug Deason was 17-years-old when he held a party at a neighbor’s house while they were gone. Booze flowed. Music was loud. Cops were called. “The couple’s son gave me a key and things got out of hand,” said Deason, who was charged with felony burglary.

Deason’s parents hired a well-connected criminal defense lawyer, who convinced prosecutors to lower the charge to misdemeanor trespassing and to agree to expunge his record if he stayed clean for a year. “A felony could have ruined my life, as I would have been forced to check that box on every school and job application,” said Deason, who is the son of Affiliated Computer Services founder Darwin Deason. “There are a lot of people who make a mistake like I did and end up paying for it for their entire life.”

That was 1979 in northwest Arkansas. Tuesday in Dallas, Deason announced that he and his family’s foundation donated $3.5 million to Southern Methodist University’s Dedman School of Law to create a legal institute that conducts innovative research and educational outreach efforts designed to promote criminal justice reform in Texas and beyond.

The Deason Family Criminal Justice Reform Center will conduct statistical and analytical studies ranging from pre-trial procedures, sentencing disparities and pre-trial diversion, abuses of asset seizure and forfeiture laws and wrongful convictions.

SMU Dedman Law Dean Jennifer Collins said the Deason gift combined with a matching $3.5 million contribution by the Charles Koch Foundation will fully fund the center, which will be located on the law school campus. “We hope this center generates statistical research that is part of the national conversation about criminal justice reforms,” Collins said. “The plan is to bring in visiting faculty members who are experts and to get students involved in research and to generate course ideas that allow students to interact with the experts.”

“This tremendous opportunity is happening only because of Doug Deason’s passion for this issue and his passion for SMU,” she said. Collins said the combined $7 million allows the law school to hire an executive director, an outreach director and additional faculty in the field....

Criminal justice experts say the center should investigate the effectiveness of prison educational and training programs. They point out that the Georgia Department of Corrections once had a program that allowed inmates to study and obtain college degrees or associates degrees in various tradecrafts while incarcerated. The recidivism rate for such inmates when they were released was less than 10 percent while the overall prison population recidivism rate exceeded 60 percent. However, the program was halted after victim’s rights groups and conservative Republican political leaders condemned the efforts as being soft on crime.

Deason, himself a Republican, said many in his own political party are shortsighted when it comes to “doing what’s right and what’s effective” in the area of criminal justice. He said the decision by Virginia Gov. Terry McAuliffe, a Democrat, to restore voting rights to 200,000 former felons who have served their entire sentences and remained clean is “awesome.”

“If they’ve paid their debt to society and taken the necessary steps, then why not give them a better chance to re-emerge into society to live a successful and dignified life,” he said.

Deason, who is the president of Deason Capital Services, has pushed Congress to reduce mandatory minimum sentences of non-violent drug offenders. The proposal passed the U.S. Senate Judiciary Committee 15 to 5. He pointed out that Texas Sen. John Cornyn voted for the bill, while Sen. Ted Cruz voted against it.

“There’s an extreme right wing that doesn’t understand this issue or they are politically afraid to do the right thing,” Deason said, which he said is ironic because he and the Koch brothers support the measure with President Obama. “I was lucky enough to get a second chance,” he said. “Other less fortunate people deserve that same opportunity.”

April 26, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

You be the judge for "sentencing supernova": what punishment for former House speaker Dennis Hastert for structuring (and sex) offenses?

MassiveStarLifecycleI have decided to call tomorrow's scheduled sentencing for former House speaker J. Dennis Hastert a "sentencing supernova."  As science geeks know, and as this Wikipedia entry explains, a supernova is "an astronomical event that occurs during the last stellar evolutionary stages of a massive star's life, whose dramatic and catastrophic destruction is marked by one final titanic explosion."  I consider any former speaker of the House to be a "massive star" and I look at his coming sentencing as the culmination of a "dramatic and catastrophic destruction" as it was slowly unearthed by federal authorities that he was committing federal banking offenses in order to pay hush money to one (of now it appears many) of Hastert's long-ago sex abuse victims.

I also am thinking of Hastert's sentencing in "supernova" terms because there are so many dynamic and debatable sentencing issues swirling around his case.  This recent Chicago Tribune article, headlined "More than 40 letters in support of Hastert made public before sentencing," reviews just some of the sentencing issues in play (with my emphasis added):

More than 40 letters in support of former U.S. House Speaker Dennis Hastert — including one from his former congressional colleague Tom DeLay — were made public Friday evening in advance of his sentencing next week on hush money charges.

"We all have our flaws, but Dennis Hastert has very few," wrote DeLay, the Texas Republican who served as majority leader under Hastert in the early 2000s. "He doesn't deserve what he is going through.  I ask that you consider the man that is before you and give him leniency where you can."...

Also included were letters from Hastert's wife, Jean, and sons Joshua and Ethan, who wrote of his devotion to his family and his good deeds as a coach, teacher and later as a politician.  They also wrote of concerns over his failing health — Hastert's lawyers have said he suffered a stroke and near-fatal blood infection last year that left him hospitalized for weeks.  "This has taken a terrible toll on our family," his wife wrote. "I am particularly worried that if he is taken from his home and the care he needs, his health will continue to deteriorate."

Hastert, 74, faces probation to up to five years in prison when he is sentenced Wednesday, although his plea agreement with prosecutors calls for a sentence of no more than six months behind bars.  He pleaded guilty in October to one count of illegally structuring bank withdrawals to avoid reporting requirements, admitting in a plea agreement that he'd paid $1.7 million in cash to a person identified only as Individual A to cover up unspecified misconduct from decades earlier.

In a bombshell sentencing memorandum filed earlier this month, prosecutors alleged Hastert had sexually abused at least four wrestlers as well as a former team equipment manager when he was coach at Yorkville [more than 35 year ago]. The abuse allegedly occurred in hotel rooms during team trips and in almost-empty locker rooms, often after Hastert coaxed the teens into a compromising position by offering to massage them, prosecutors said.  The filing also alleged that Hastert set up a recliner chair outside the locker room showers in order to sit and watch the boys....

When he was confronted by FBI agents about the unusual bank withdrawals in December 2014, Hastert lied and said he was just keeping his money safe because he didn't trust security at the banks, according to prosecutors.  Later, he accused Individual A of extorting him by making false accusations of sexual abuse and even agreed to record phone conversations for the FBI — a gambit that fell apart when agents realized it was Hastert who was lying, according to prosecutors.

I have highlighted above the notable fact, thanks to a shrewd plea deal in this case, Hastert's punishment is statutorily limited to a prison sentencing range of zero to five years and that prosecutors are bound to recommend a sentence of no more than six months imprisonment.  Prosecutors cut this deal, I suspect, because they realize that Hastert's old age and poor health and recent history of public service would make unlikely that a judge would sentence him to a very lengthy prison term.

That all said, it appears nearly undisputable that Hastert did sexually abuse numerous boys while serving as a wrestling coach decades ago and essentially got away with these crimes.  (It is my understanding that the statute of limitations has passed so that he could not now be prosecuted for them.)  His more recent bank/money structuring crimes are, of course, connected to these long-ago terrible crimes and Hastert also actively lied to public officials in a manner that could also have readily brought  separate serious criminal charge for obstruction of justice.  

Based on all these facts, I could make reasonabe arguments for sentences ranging from probation to five years, and I also could imagine lots of arguments for creative alternative sentencing terms instead of (or in addition to) a prison stint.  For example, I believe some members of the community have urged the judge to require Hastert to make significant payment to groups that work with sexually abused boys.  And perhaps one could strain to read federal law to argue that all of those abused by Hastert long ago are still technically victims of his more recent offenses and thus should be able to obtain some kind of restitution through his sentencing.  (This would seem to be stretch, but there are reports that some other "victims" are planning to testify at Hastert's sentencing.)

So I sincerely wonder, dear readers, what supernova sentence you think should be impose in this case?

April 26, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (37)

Virginia Gov explains his big decision to use his clemency power to restore franchise

I noted in this post last Friday that Governor Terry McAuliffe of Virginia used his executive clemency power to restore voting rights to more than 200,000 former felons.  Since then, I came across this Medium piece in which the Gov explains his actions. Here are excertps:

We are all familiar with Virginia’s long history of discrimination at the ballot box, culminating in the 1902 constitution establishing a poll tax, literacy and knowledge tests, and broader restrictions on individuals with felony convictions.

The 1965 Voting Rights Act eliminated many of those barriers.  However, Virginia continued to enforce one of the most restrictive laws in the country regarding the restoration of voting and civil rights for individuals who have been convicted of felonies but who complete their sentences and probation or parole.  Over the last two years, our administration has worked tirelessly to simplify the restoration process.  We restored the rights of more than 18,000 Virginians, which is more than the past 7 governors combined over their full four-year terms.

We worked to reform the process by reducing the waiting period for more serious offenders from five years to three, classifying all drug-related convictions as non-violent, shortening the application for more serious offenders from 13 pages to one page, removing a requirement that individuals pay their court costs before they can have their rights restored, and ensuring that a notation will be included in an individual’s criminal record designating that his or her rights have been restored.

While I am proud of the progress we have achieved, I wasn’t satisfied to leave so many men and women in our Commonwealth barred from full citizenship.  [On Friday] we restored the voting and civil rights of more than 200,000 Virginians who have served their time and completed supervised release.

This action means that these disenfranchised Virginians will immediately regain the right to register to vote, to run for office and to serve on a jury.  It means that these Virginians, who have served their sentences and returned to live in our communities, will no longer be second class citizens who must jump through onerous hoops to have a voice in our society.  And it means that Virginia can close a difficult chapter in our history and open a new one where, instead of building barriers to the ballot box, we work together to break them down.

Some have suggested this action was politically motivated, or that it is wrong to restore the rights of felons who have committed more serious crimes, even if they have served their sentences.  I would encourage those critics to meet with some of the men and women whose rights we have restored throughout my term.  Who have reentered society seeking a second chance and who have waited years, sometimes decades, to become whole members of our society again.  And who have broken down in tears as I signed their restorations on “the best day of their lives.”

If we are going to build a stronger Virginia, we must open doors to participation in civic life for people who return to society seeking a second chance.  We must welcome them back and offer the opportunity to build a better life by taking an active role in our democracy.  I believe it is time to cast off Virginia’s troubling history of injustice and embrace an honest, clean process for restoring the rights of these men and women.

Prior related posts:

April 26, 2016 in Clemency and Pardons, Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

"Roadmap to Reentry: Reducing Recidivism Through Reentry Reforms at the Federal Bureau of Prisons"

Roadmap_to_reentry_slide-2The title of this post is the title of this new programming publication from the US Department of Justice.  Here is part of its "Overview":

Each year, more than 600,000 citizens return to neighborhoods across America after serving time in federal and state prisons.  Another 11.4 million individuals cycle through local jails.  And nearly one in three Americans of working age have had an encounter with the criminal justice system — mostly for relatively minor, non-violent offenses, and sometimes from decades in the past.  Federal prisoners are held at the Bureau of Prisons (BOP), a law enforcement agency of the U.S. Department of Justice and the country’s largest and most complex prison system — housing nearly 200,000 prisoners in 122 federally-operated correctional institutions, 13 privately-operated secure correctional facilities, and a network of more than 175 community-based centers around the country....

The long-term impact of a criminal record prevents many people from obtaining employment, housing, higher education, and credit — and these barriers affect returning individuals even if they have turned their lives around and are unlikely to reoffend.  These often-crippling barriers can contribute to a cycle of incarceration that makes it difficult for even the most wellintentioned individuals to stay on the right path and stay out of the criminal justice system.  This cycle of criminality increases victimization, squanders our precious public safety resources, and wastes the potential of people who could be supporting their families, contributing to the economy, and helping to move our country forward.

Under the Obama Administration, the Department of Justice has already taken major steps to make our criminal justice system more fair, more efficient, and more effective at reducing recidivism and helping formerly incarcerated individuals return to their communities.  In 2011, the Department established the Federal Interagency Reentry Council, a unique Cabinet-level effort to remove barriers to successful reentry.  The Reentry Council, which now includes more than 20 federal departments and agencies, has developed significant policies and initiatives that aim not only to reduce recidivism, but also to improve public health, child welfare, employment, education, housing, and other key reintegration outcomes.

To ensure that all justice-involved individuals are able to fulfill their potential when they come home, Attorney General Lynch has launched a major effort to support and strengthen reentry programs and resources at BOP. These principles of reform — known as the Roadmap to Reentry — will be implemented throughout BOP, deepening and further institutionalizing the Department’s commitment to reentry.  These efforts will help those who have paid their debt to society prepare for substantive opportunities beyond the prison gates; promoting family unity, contributing to the health of our economy, and sustaining the strength of our nation.

The Department has also established full-time positions to promote reentry work at BOP, the Executive Office for United States Attorneys, and the Office of Justice Programs; this includes hiring the first-ever Second Chance Fellow — a formerly incarcerated individual with deep expertise in the reentry field — to assist in development of reentry policy initiatives. BOP established a new Reentry Services Division to better equip inmates with the tools needed for success outside the prison walls, including expanded mental health and substance abuse treatment programs and improved work and educational opportunities.  Through the community of U.S. Attorneys, the Department participates in reentry and diversion courts in more than 50 judicial districts nationwide. And the Department supports state, local, and tribal reentry efforts by providing resources under the Second Chance Act of 2007: the Department’s Office of Justice Programs has made nearly 750 Second Chance Act grants totaling more than $400 million, and established a National Reentry Resource Center that serves as a one-stop resource for returning citizens, advocates, and stakeholders.

April 26, 2016 in Collateral consequences, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Monday, April 25, 2016

Deep thoughts about sentencing, sentencing rules, and sentencing rule-making

I just came across these two interesting new papers on SSRN that raise lots of interesting and deep thoughts about both sentencing outcomes and sentencing rules and sentencing decision-making:

Confronting Political Disagreement About Sentencing: A Deliberative Democratic Framework by Seth Mayer & Italia Patti

Abstract:  There is broad agreement that the American criminal sentencing system is deeply flawed, yet current theoretical frameworks for sentencing have failed to offer a way forward for reform.  These frameworks have not faced up to political disagreement. Instead, they either try to impose disputed moral theories or they downplay normative considerations and seek to impose numerically consistent, rather than normatively justified, sentences. The failures of both approaches are in evidence in the process that led to the development of the United States Sentencing Guidelines.

This Article is the first to offer a framework to directly and effectively confront political disagreement.  It draws on deliberative democratic conceptions of legitimacy to develop a framework for sentencing that addresses disagreement.  Deliberative democracy offers a normatively grounded approach to managing disagreement through collective reasoning, which aims to place the legal system under public control.  This Article articulates criteria for evaluating legal systems from the perspective of a particular conception of deliberative democratic legitimacy and offers reforms to enable the current system to better embody those criteria.

Rules, Standards, Sentencing, and the Nature of Law by Russell Covey

AbstractSentencing law and practice in the United States can be characterized as an argument about rules and standards.  Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions.  As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this "rulification" of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the debate between sentencing reformers and their critics is a paradigmatic illustration of the limits of relying upon modifications of legal form to enhance substantive justice.

Building upon the work of legal theorists who have considered the rules versus standards conundrum, this article uses sentencing law as a lens to view some of the fundamental perplexities that bedevil law's grander aspirations -- for determinacy, fairness, even coherence itself.  Because, it is argued, refinements in legal form will never achieve the substantive goals to which law strives, the Essay urges a turn away from formal equality and toward a conception of sentencing justice that is centered on process values such as respect for those affected by sentencing decisions, concern that all voices be adequately heard, and decision making that reflects the considered moral judgment of the decision maker.

April 25, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (1)

New speech by Justice John Paul Stevens reflects on Justice Antonin Scalia and the Court's constitutional work before and after Apprendi

A helpful reader alerted me to this notable new speech given today by Justice John Paul Stevens at the Washington University School of Law. The speech is titled "Some Thoughts about a Former Colleague," and much of the discussion is a review of the McMillan, Watts, Apprendi, Harris, Blakely, Alleyne and Hurst decisions from the Supreme Court over the last three decades.  The speech also notes disagreements between Justices Stevens and Scalia in the Second and Eighth Amendment contexts, and concludes with some comments about original intent as a mode of constitutional interpretations.

My quick review of the speech did not lead me to find any surprising revelations, but it did lead me to conclude that Justice Stevens is pleased that, in his words, a "consensus [] has developed around Apprendi's rule since it was first announced in a 5-4 decision 16 years ago."  I also found quite notable that the Booker decision did not get any mention in the discussion.

April 25, 2016 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Republican National Committee adopts resolution urging criminal justice reform in Congress

Rnc-logoThis Daily Signal article, headlined "Republican Leaders Throw Weight Behind Prison Reform," reports on a notable development during the RNC's Spring Meeting in Florida last week.  Here are the details:

The Republican National Committee [on Friday] adopted a resolution in support of reforming the nation’s criminal justice laws, in a significant sign of bipartisan consensus to undo mass incarceration in America. In the one-page resolution, obtained by The Daily Signal, the RNC commends conservative-led states that have adopted policies to reduce their prison populations — such as Texas, Alabama, and Georgia — and urged Congress to act as well.

“This is the Republican Party coming together and saying criminal justice reform is an issue that needs to be addressed, and I think it’s sending a message that the RNC wants to make certain Congress has this as one of its top priorities,” said Telly Lovelace, the Republican National Committee’s director for urban media.

Lovelace added: "It’s the first time the RNC has taken a significant step like this on criminal justice reform, as the issue is sweeping the country, with conservative states leading the way in adopting policies to deal with it. Criminal justice reform is an issue that impacts all Americans, no matter which part of the country they live in."

The RNC’s official position supporting prison reform was one of 10 resolutions announced to committee members today during the national GOP organization’s spring meeting in Hollywood, Fla.... Each resolution is voted on by nine committee members, including RNC Chairman Reince Priebus.

Criminal justice reform is thought to be one of the few areas where Congress and President Barack Obama can work together to enact a substantive law during a contentious election year. Both the Republican-led House and Senate judiciary committees have advanced legislation that would shorten prison sentences for low-level nonviolent drug offenders and allow well-behaved inmates to earn time off their prison terms.

But on the Senate side, some conservatives have argued that the Judiciary Committee’s proposal would allow violent felons the chance to be released from prison early. The bill’s authors, including Judiciary Chairman Chuck Grassley, R-Iowa, Majority Whip John Cornyn, R-Texas, and Mike Lee, R-Utah, have fought that characterization. They recently made revisions to the legislation to satisfy critics.

Mark Holden, a top lawyer at Koch Industries, one of the biggest proponents of criminal justice reform on the conservative side, says he hopes the Republican National Committee’s resolution pushes skeptical conservatives in Congress to support the effort. “The RNC position makes it clear that Republicans can and should continue to lead on this critically important issue as they have for the past several years,” Holden told The Daily Signal in an emailed statement...

In its resolution, the RNC notes that the federal prison population, over which Congress has jurisdiction, increased 734 percent from 1980 to 2015, while taxpayer dollar spending on the prison system spiked 595 percent in that same period. The resolution states that taxpayers “are not receiving the public safety return they deserve because lengthy prison terms increase recidivism rates for low-level offenders.”

In addition to supporting treatment options for drug addicts, and other policies to reduce the number of re-offenders, the RNC calls for “mens rea” reform. That would require prosecutors to prove that certain criminal suspects knowingly intended to break the law.

The text of this resolution does not yet appear to be posted on the RNC's website, but I will post it once it becomes available.

April 25, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0)

SCOTUS grants cert on two new criminal cases

The Supreme Court, as previewed here, is wrapping up the oral arguments of its current Term with a considerable amount of criminal law work.  And today, via this new order list, the Justices took up two new criminal law cases for its docket next Term.  Here are the cases and the issues via SCOTUSblog for the two cases taked up by the Justices today:

Manrique v. United States

Issue: Whether a notice of appeal from a sentencing judgment deferring restitution is effective to challenge the validity of a later-issued restitution award.

Shaw v. United States

Issue: 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.

April 25, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)